                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 16 2012

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



                            FOR THE NINTH CIRCUIT


ARTIS GIPSON,                                    No. 10-15792

              Petitioner - Appellant,            D.C. No. 2:09-cv-00389-SRB

  v.
                                                 MEMORANDUM*
CHARLES RYAN and STATE OF
ARIZONA ATTORNEY GENERAL,

              Respondents - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Susan R. Bolton, District Judge, Presiding

                     Argued and Submitted February 13, 2012
                            San Francisco, California

Before: TASHIMA and SILVERMAN, Circuit Judges, and GARBIS, Senior
District Judge.**

       Artis Gipson appeals the district court’s dismissal of his 28 U.S.C. § 2254

petition as untimely under the Antiterrorism and Effective Death Penalty Act of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Marvin J. Garbis, Senior United States District Judge
for the District of Maryland, sitting by designation.
                                           -2-

1996. Reviewing de novo, see Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir.

2006), we affirm.

      The parties agree that AEDPA’s one-year statute of limitations began to run

on July 13, 2006, when Gipson’s 90-day window for petitioning the U.S. Supreme

Court for certiorari expired. See 28 U.S.C. § 2244(d)(1). Gipson is correct that he

is entitled to statutory tolling while he pursued timely state post-conviction relief

— that is, from when Gipson’s conviction became final on July 13, 2006 until

October 25, 2007, when the time for Gipson to file a petition for review for post-

conviction relief (after receiving one extension of time) expired. See id.

§ 2244(d)(2). Gipson filed his federal habeas petition one year and 122 days later,

on February 23, 2009.

      Gipson argues that he is entitled to equitable tolling of that one year and 122

days based on (1) the state trial court’s inexplicable decision to forward Gipson’s

pro se transcript request to his appointed counsel, with whom Gipson allegedly

could not communicate, and (2) the state trial court’s miscalculation of his filing

deadline and concomitant denial of his second request for an extension of time to

file a petition for review for post-conviction relief.

      A petitioner is entitled to equitable tolling only when he shows “‘(1) that he

has been pursuing his rights diligently, and (2) that some extraordinary
                                          -3-

circumstance stood in his way’ and prevented timely filing.” Holland v. Florida,

130 S. Ct. 2549, 2562 (2010) (citation omitted).

      Here, even if Gipson had pursued his rights diligently, the state trial court’s

errors did not prevent him from filing a timely federal habeas petition. First, with

respect to the miscommunication about Gipson’s transcript request, Gipson has

failed to identify anything in the transcript that was necessary for him to be able to

file his federal habeas petition. Furthermore, Gipson received the transcript on

October 3, 2008, more than three weeks before AEDPA’s limitations period ran,

but has failed to show that it was impossible for him to file his petition within

those three weeks. And second, with respect to the denial of the extension of time

as a result of the miscalculated filing deadline, even after Gipson exhausted his

state appeals of that denial, he still had five months left on AEDPA’s limitations

period to timely file his petition. Alternatively, as the Supreme Court has noted,

Gipson could have filed a “protective” petition with the district court and asked it

to “stay and abey the federal habeas proceedings until state remedies are

exhausted.” Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005). Accordingly, Gipson

has not met his burden to show that extraordinary circumstances made it

impossible for him to file a timely habeas petition.
                                          -4-

      Thus, because Gipson filed his § 2254 petition 122 days after AEDPA’s one-

year limitations period expired, and because he is not entitled to equitable tolling,

we affirm the district court’s dismissal of his petition as untimely. We therefore

need not address Gipson’s argument that the state court’s denial of his motion for a

second extension of time amounted to an inadequate state procedural bar.

      AFFIRMED.
