                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       OCT 30 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

SUSAN MAE POLK,                                 No.    15-15677

                Petitioner-Appellant,           D.C. No. 3:12-cv-05986-VC

 v.
                                                MEMORANDUM*
MOLLY HILL, Acting Warden,

                Respondent-Appellee.

                   Appeal from the United States District Court
                     for the Northern District of California
                    Vince Chhabria, District Judge, Presiding

                           Submitted October 16, 2017**
                             San Francisco, California

Before: IKUTA and HURWITZ, Circuit Judges, and MOLLOY,*** District Judge.

      Susan Polk, a California prisoner convicted of second-degree murder, appeals

the district court’s denial of her application under 28 U.S.C. § 2254 for a writ of



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
habeas corpus. We affirm.

      1. There is a one-year statute of limitations in the Antiterrorism and Effective

Death Penalty Act (“AEDPA”) for filing § 2254 petitions. 28 U.S.C. § 2244(d).

AEDPA’s limitations period begins to run when a state conviction becomes final.

28 U.S.C. § 2244(d)(1). Polk’s conviction became final on June 28, 2011. See

Bowen v. Roe, 188 F.3d 1157, 1158–59 (9th Cir. 1999). Polk filed her § 2254

petition on November 7, 2012. Without the benefit of tolling, Polk’s § 2254 petition

was 132 days late.

      2. Polk filed a state habeas petition in the California Supreme Court on June

28, 2012, which was denied on October 31, 2012. AEDPA allows statutory tolling

for “[t]he time during which a properly filed application for State post-conviction

. . . review . . . is pending[.]” 28 U.S.C. § 2244(d)(2). Even assuming that Polk’s

California Supreme Court petition was “properly filed” and that she is entitled to

statutory tolling, her § 2254 petition would still be seven days late unless she is also

entitled to equitable tolling.

      3. Polk claims entitlement to equitable tolling because she (1) lacked access

to her legal papers; (2) lacked access to writing supplies; (3) lacked access to the

prison law library; and (4) is actually innocent. But Polk’s extensive filings in other

cases during the limitations period belie her equitable tolling arguments in general

and in particular doom any claim that she was unable to file a stay-and-abey petition.


                                           2
See Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (instructing state prisoners

unsure about whether they are entitled to statutory tolling to file a protective § 2254

petition). Equitable tolling is appropriately granted only when the circumstances

surrounding delay are “extraordinary” and “beyond a prisoner’s control.” Bills v.

Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (quoting Spitsyn v. Moore, 345 F.3d 796,

799 (9th Cir. 2003)). Here, the cause for delay was the routine fact that Polk did not

receive immediate notice of the state court action. Although “prolonged delay by a

state court in sending notice of a ruling that completes exhaustion of state court

remedies can toll the AEDPA limitations period,” Ramirez v. Yates, 571 F.3d 993,

997–98 (9th Cir. 2009) (quoting Diaz v. Kelly, 515 F.3d 149, 155 (2d Cir. 2008)),

there was no such delay here.

      4. The district court correctly rejected Polk’s actual innocence claim because

she failed to produce any new evidence, see Schlup v. Delo, 513 U.S. 298, 327

(1995), rather merely reiterating her interpretation of the trial evidence.

      AFFIRMED




                                           3
