                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 22 2011

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




                            FOR THE NINTH CIRCUIT



LAWRENCE COX,                                    No. 11-15223

               Petitioner - Appellant,           D.C. No. 2:09-cv-02135-LKK

  v.                                             MEMORANDUM *

LARRY SMALL, Warden; EDMUND G.
BROWN, Jr., Attorney General,

               Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence K. Karlton, District Judge, Presiding

                           Submitted December 19, 2011 **

Before:        GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       California state prisoner Lawrence Cox appeals pro se 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).
      Cox contends that the district court erred in dismissing his petition as

untimely. He argues that he is entitled to both statutory and equitable tolling. As

for statutory tolling, the district court properly ruled that since Cox’s third petition

was dismissed as untimely, it was not properly filed so as to be considered

“pending” pursuant to 28 U.S.C. § 2244(d)(2), and therefore, statutory tolling was

unwarranted. See Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005). Cox’s

contention that California’s timeliness rule is not an adequate state procedural rule,

is foreclosed by Walker v. Martin, 131 S. Ct. 1120, 1128-30 (2011). The district

court properly ruled that Cox failed to show that he was unaware of the facts

underlying his claim of ineffective assistance of counsel at the time of his jury trial.

See Hasan v. Galaza, 254 F.3d 1150, 1154-55 (9th Cir. 2001).

      Regarding equitable tolling Cox fails sufficiently to demonstrate that during

the running of the AEDPA time limitations, “he had been pursuing his rights

diligently and that some extraordinary circumstance stood in his way,” which

would constitute grounds for equitable tolling. See Pace, 544 U.S. at 418.

Moreover, Cox fails to present new evidence of actual innocence sufficient to

excuse his untimely filing. See Lee v. Lampert, 653 F.3d 929, 938 (9th Cir. 2011)

(en banc).

      AFFIRMED.


                                            2                                     11-15223
