                                                                           FILED
                            NOT FOR PUBLICATION                            NOV 13 2013

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



                            FOR THE NINTH CIRCUIT


JOSE LUIS MURILLO,                               No. 11-15811

              Petitioner - Appellant,            D.C. No. 4:09-cv-03346-CW

  v.
                                                 MEMORANDUM*
KELLY HARRINGTON, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                  Claudia Wilken, Chief District Judge, Presiding

                     Argued and Submitted November 4, 2013
                            San Francisco, California

Before: KLEINFELD, THOMAS, and RAWLINSON, Circuit Judges.



       Jose Luis Murillo appeals the district court’s order 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.
      Murillo waited 363 days after his conviction became final before he filed his

first habeas petition. He argues that this entire period should be tolled, because he

did not possess his legal file. The record does not show that he asked for his legal

file during this period. Murillo, therefore, did not establish that he exercised

reasonable diligence in pursuing his rights. Cf. Holland v. Florida, 130 S. Ct.

2549, 2565 (2010).



      Murillo is not entitled to statutory “gap” tolling between the denial of his

first petition in the California Superior Court and the filing of his second petition in

that same court, because his second petition added seven new claims. See Stancle

v. Clay, 692 F.3d 948, 957-58 (9th Cir. 2012).



      We need not consider Murillo’s other arguments for tolling because they

would not provide enough tolling to make his petition timely.



AFFIRMED.




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