                                                                             FILED
                            NOT FOR PUBLICATION                               SEP 27 2010

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JAVIER FLORES,                                    No. 09-15476

               Petitioner - Appellant,            D.C. No. 4:05-cv-03932-CAW

  v.

A. P. KANE and BEN CURRY,                         MEMORANDUM *

               Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Claudia A. Wilken, District Judge, Presiding

                          Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       California state prisoner Javier Flores appeals pro se from the district court’s

judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We have

jurisdiction under 28 U.S.C. § 2253, and we affirm.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Flores contends the district court erred by concluding that his federal habeas

petition was untimely. The district court properly weighed the evidence

concerning the filing date of Flores’s federal habeas petition and did not err in

determining the filing date. See Houston v. Lack, 487 U.S. 266, 275-76 (1988);

see also Huizar v. Carey, 273 F.3d 1220, 1224 (9th Cir. 2001) (prison’s log of

outgoing mail provides “strong evidence” of the date a petitioner handed over his

habeas petition to prison officials for mailing to the district court).

      Flores is not entitled to equitable tolling because he has not demonstrated

that an extraordinary circumstance beyond his control prevented him from timely

filing his federal habeas petition. See Miranda v. Castro, 292 F.3d 1063, 1068

(9th Cir. 2002) (attorney’s miscalculation of limitations period and her negligence

in general do not constitute extraordinary circumstances sufficient to warrant

equitable tolling); Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009) (petitioner

not entitled to equitable tolling simply because he remained in administrative

segregation and had limited access to law library and copy machine). Because

Flores is not entitled to equitable tolling, his federal habeas petition was untimely.

See 28 U.S.C. § 2244(d)(1).

      Finally, we construe Flores’s additional arguments as a motion to expand the

certificate of appealability. So construed, the motion is denied. See 9th Cir.


                                            2                                    09-15476
R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999)

(per curiam).

      AFFIRMED.




                                        3                                  09-15476
