                                                                            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                            NOT FOR PUBLICATION                               APR 01 2010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

STEVEN BOYD HARPER,                              No. 07-56428

              Petitioner - Appellant,            D.C. No. CV-06-01683-JM(PCL)

  v.
                                                 MEMORANDUM *
KEN CLARK,

              Respondent - Appellee.

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

                           Submitted December 16, 2009 **

Before: SKOPIL, LEAVY and T.G. NELSON, Circuit Judges.

       Steven Boyd Harper, a California state prisoner, appeals the district court’s

dismissal of his federal habeas petition for failure to comply with the one-year

statute of limitations of the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), 28 U.S.C. § 2244(d)(1). We have jurisdiction pursuant to 28 U.S.C.

§§ 1291 and 2253, and we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      A habeas petition is timely if filed within AEDPA’s one-year statute of

limitation period. 28 U.S.C. § 2244(d)(1). A petition can also be timely, even if

filed after the one-year time period has expired, when tolling applies. See Tillema

v. Long, 253 F.3d 494, 498 (9th Cir. 2001). Harper contends he is entitled to such

tolling because he did not receive notice of the California Supreme Court’s

decision denying his state petition.

      The State has submitted evidence, however, which indicates Harper did

receive notice of the California Supreme Court’s decision. Harper does not dispute

the accuracy of this evidence. In fact, it is corroborated by other evidence he

submitted to the district court. Because the State’s evidence demonstrates that the

issues before this court are entirely without merit and a remand to the district court

would waste judicial resources, we affirm the judgment of the district court.

      We deny Harper’s motion to strike the evidence from the record.

      AFFIRMED.




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