                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 23 2010

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




                            FOR THE NINTH CIRCUIT



RONALD DEAN McCALL,                              No. 08-35705

               Petitioner - Appellant,           D.C. No. 3:06-cv-01059-GMK

  v.
                                                 MEMORANDUM *
SHARON BLACKETTER,
Superintendent of Eastern Oregon
Correctional Institution,

               Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                      Garr M. King, District Judge, Presiding

                              Submitted June 29, 2010 **

Before:        ALARCÓN, LEAVY, and GRABER, Circuit Judges.

       Oregon state prisoner Ronald Dean McCall appeals 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).
       McCall contends that he is entitled to equitable tolling because his counsel

failed to file his state petition for post-conviction relief in time to preserve his right

to seek federal habeas relief. This contention fails because McCall has not

demonstrated diligence or that an extraordinary circumstance beyond his control

prevented him from timely filing his habeas petition. See Lawrence v. Florida, 549

U.S. 327, 336-37 (2007); cf. Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003).

McCall’s contention that he is entitled to an evidentiary hearing on the issue of

equitable tolling also fails. See Tapia v. Roe, 189 F.3d 1052, 1058 (9th Cir. 1999).

       We construe McCall’s briefing of additional issues as a motion to expand

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

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

curiam).

       AFFIRMED.




                                             2                                     08-35705
