                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                          FILED
                             FOR THE NINTH CIRCUIT                            MAR 26 2010

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

ANDREW BRINKLEY,                                 No. 07-16784

               Petitioner - Appellant,           D.C. No. CV-06-02189-
                                                 GEB/GGH
  v.

JAMES E. TILTON, Director of                     MEMORANDUM *
Corrections and Rehabilitation,,

               Respondent - Appellee.


                     Appeal from the United States District Court
                        for the Eastern District of California
                     Garland E. Burrell, District Judge, Presiding

                            Submitted January 28, 2010**

Before:        FARRIS, HALL, and LEAVY, Circuit Judges.

       California state prisoner James Andrew Brinkley appeals pro se from the

district court’s judgment dismissing his 28 U.S.C. § 2254 petition. 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.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Brinkley contends the district court erred in dismissing his § 2254 petition as

untimely because he is entitled to statutory and equitable tolling. This contention

lacks merit.

      We review de novo, and we may affirm on any ground supported by the

record. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003); Weaver v.

Thompson, 197 F.3d 359, 362 (9th Cir. 1999).

      Brinkley’s conviction became final on April 22, 2004. Cal. Rules of Ct.,

Rules 8.264 (formerly Rule 24), 8.268(c) (formerly Rule 25), 8.366 (formerly Rule

33.1) and 8.500(e) (formerly Rule 28). Brinkley’s § 2254 petition was due under

the AEDPA one-year statute of limitations by April 22, 2005. 28 U.S.C.

§ 2244(d)(1)(A); Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001). There

is no basis to apply statutory tolling because the one-year limitations period had

already expired by the time Brinkley filed his first state petition on May 16, 2005.

See 28 U.S.C. § 2244(d)(2); Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001).

      Nor has Brinkley established a basis for equitable tolling because he has not

demonstrated that he pursued his claims with diligence or that extraordinary

circumstances prevented him from timely filing his § 2254 petition. Pace v.




                                       2                                       07-16784
DiGuglielmo, 544 U.S. 408, 418 (2005); Miranda v. Castro, 292 F.3d 1063, 1065-

66 (9th Cir. 2002).1

        AFFIRMED.




        1
            Brinkley’s motion for judicial notice of lodged documents is denied as
moot.

                                          3                                     07-16784
