                                                                            FILED
                              NOT FOR PUBLICATION                            APR 01 2010

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




                              FOR THE NINTH CIRCUIT



 FLOYD EUGENE BARNES,                            No. 07-56665

                Petitioner - Appellant,          D.C. No. CV-06-01849-BTM

   v.
                                                 MEMORANDUM *
 R. CAMPBELL,

                Respondent - Appellee.



                     Appeal from the United States District Court
                         for the Southern District of California
                     Barry T. Moskowitz, District Judge, Presiding

                              Submitted March 16, 2010 **

Before:         SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        California state prisoner Floyd Eugene Barnes appeals pro se from the

district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We

have jurisdiction pursuant to 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).

SM S/Research
       The district court did not err when it dismissed Barnes’ habeas petition as

untimely. See 28 U.S.C. § 2244(d)(1). Barnes’ state habeas petition filed in the

San Diego Superior Court did not toll AEDPA’s limitations period because it was

not properly filed. See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005) (“Because

the state court rejected petitioner’s [postconviction] petition as untimely, it was not

‘properly filed,’ and he is not entitled to statutory tolling under § 2244(d)(2).”);

Bonner v. Carey, 425 F.3d 1145, 1148-49 (9th Cir. 2005) (applying Pace to

California’s timeliness rule for postconviction petitions), as amended, 439 F.3d

993 (9th Cir. 2006). Barnes’ contention that application of Pace to this case

violates the constitution’s Ex Post Facto clause is without merit. See Allen v.

Siebert, 552 U.S. 3 (2007) (per curiam) (applying Pace to a habeas petition filed

before Pace was decided).

       Barnes contends the district court erred because it failed to determine

whether California’s timeliness rule is “adequate.” A state’s timeliness rule is a

“condition to filing” and not a “procedural bar.” Pace, 544 U.S. at 417. Therefore,

“whether a condition to filing is firmly established and regularly followed is

irrelevant.” See Zepeda v. Walker, 581 F.3d 1013, 1018 (9th Cir. 2009).

       AFFIRMED.




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