                                                                             FILED
                           NOT FOR PUBLICATION                               SEP 27 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


JERRY PENA,                                     No. 10-16133

              Petitioner - Appellant,           D.C. No. 2:08-cv-01740-LKK-
                                                CMK
  v.

MICHAEL MARTEL; CALIFORNIA                      MEMORANDUM*
DEPARTMENT OF CORRECTIONS
AND REHABILITATION; A.
HEDGPETH; KERN VALLEY STATE
PRISON,

              Respondents - Appellees.


                   Appeal from the United States District Court
                      for the Eastern District of California
                  Lawrence K. Karlton, District Judge, Presiding

                    Argued and Submitted September 1, 2011
                           San Francisco, California




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: FISHER and RAWLINSON, Circuit Judges, and MILLS, District Judge.**

       Jerry Pena appeals the judgment of the district court dismissing his 28

U.S.C. § 2254 habeas petition as untimely. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

       We assume that Pena’s third state habeas petition was filed in the California

Supreme Court on December 12, 2007, in accordance with the prison mailbox rule.

That date is consistent with the proof of service, the legal mail log and the position

taken by the state in the district court.

       We nonetheless conclude that Pena is not entitled to statutory tolling for the

interval between the California Court of Appeal’s denial of his second habeas

petition and his filing of the third petition in the state supreme court. See 28

U.S.C. § 2244(d)(2). Pena’s filing delay was “substantially longer than the ‘30 to

60 days’ that ‘most States’ allow for filing petitions.” Chaffer v. Prosper, 592 F.3d

1046, 1048 (9th Cir. 2010) (per curiam) (quoting Evans v. Chavis, 546 U.S. 189,

201 (2006)); see also Velasquez v. Kirkland, 639 F.3d 964, 968 (9th Cir. 2011)

(holding that an 81-day delay was “far longer than the Supreme Court’s

thirty-to-sixty-day benchmark for California’s ‘reasonable time’ requirement”).



        **
         The Honorable Richard Mills, Senior United States District Judge for the
Central District of Illinois, sitting by designation.

                                            2
Pena was therefore required to offer an adequate explanation for his delay, but he

has not done so. See Velasquez, 639 F.3d at 968; Chaffer, 592 F.3d at 1048.

Although Pena added a table of contents and a table of authorities to his petition,

he does not explain why he could not have accomplished those quite minor

modifications within a reasonable time. His federal petition was therefore

untimely filed. See 28 U.S.C. § 2244(d)(1).

      AFFIRMED.




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