                                                                           FILED
                            NOT FOR PUBLICATION                              OCT 5 2011

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




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-17216

               Plaintiff - Appellee,             D.C. Nos.1:10-cv-00275-ALA
                                                          1:02-cr-00547-ALA
  v.

KENNETH CHARLES McNEIL,                          MEMORANDUM *
a.k.a Chip,

               Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Hawaii
                      Ann L. Aiken, Chief Judge, Presiding

                           Submitted September 27, 2011 **

Before:        HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.

       Kenneth Charles McNeil appeals pro se from the district court’s order

denying his motion under 28 U.S.C. § 2255. We have jurisdiction under 28 U.S.C.

§ 2253, and we affirm on the basis that his motion is untimely. See United States


          *
             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).
v. Kaluna, 192 F.3d 1188, 1197 n.2 (9th Cir. 1999) (“We may affirm on any basis

the record supports [.]”) (internal quotation marks omitted).

      McNeil contends that the district court erred in failing to construe his

October 19, 2009 letter as a 28 U.S.C. § 2255 motion. Because he was in custody

on that date, he argues that the district court had jurisdiction over his motion.

      Even if the letter is construed as a motion, it was filed over two years after

the AEDPA statute of limitations had run. See 28 U.S.C. § 2255(f). Contrary to

his assertion, he is not entitled to a later start date based on facts known to him at

the time of his conviction. See 28 U.S.C. § 2255(f)(4); United States v. Battles,

362 F.3d 1195, 1198 (9th Cir. 2004). Further, McNeil is not entitled to tolling,

because the period that he claims should be tolled occurred after the statute of

limitations period had run.

      AFFIRMED.




                                            2                                       10-17216
