                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 02 2010

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




                            FOR THE NINTH CIRCUIT



JAMES D. NIVETTE,                                No. 08-16426

               Petitioner - Appellant,           D.C. No. 2:07-cv-00759-LKK

  v.
                                                 MEMORANDUM *
JAMES A. YATES, Warden,

               Respondent - Appellee.



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

                              Submitted June 29, 2010 **

Before:        ALARCÓN, LEAVY, and GRABER, Circuit Judges.

       California state prisoner James D. Nivette appeals from the district court’s

judgment dismissing his pro se 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).
      Nivette contends that the district court erred by: (1) denying equitable tolling

of the one-year statute of limitations under the Antiterrorism and Effective Death

Penalty Act; and (2) failing to conduct an evidentiary hearing. The record reflects

that the district court properly rejected Nivette’s argument for equitable tolling

because Nivette has not shown that his mental disabilities constituted an

extraordinary circumstance that caused his delay in filing a federal habeas petition.

See Bryant v. Arizona Atty. Gen., 499 F.3d 1056, 1061 (9th Cir. 2007); see also

Gaston v. Palmer, 417 F.3d 1030, 1034-35 (9th Cir. 2005), reversed on other

grounds, 447 F.3d 1165 (9th Cir. 2006).

      Nivette has also failed to present sufficient evidence of mental incompetency

to warrant an evidentiary hearing. Cf. Laws v. Lamarque, 351 F.3d 919, 923-24

(9th Cir. 2003).

      AFFIRMED.




                                                                                08-16426
