                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 17 2010

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




                            FOR THE NINTH CIRCUIT



MELVIN G. EDWIN,                                 No. 09-35231

              Petitioner - Appellant,            D.C. No. 3:08-cv-00004-JWS

  v.
                                                 MEMORANDUM *
JOSEPH SCHMIDT, Commissioner;
ALASKA D.O.C.; FRANK LUNA,
Warden,

              Respondents - Appellees.



                    Appeal from the United States District Court
                             for the District of Alaska
                    John W. Sedwick, District Judge, Presiding

                     Argued and Submitted December 9, 2010
                              Seattle, Washington

Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and MOSKOWITZ,
District Judge.**

       Melvin G. Edwin appeals the district court’s dismissal of his federal habeas

corpus claim. The court did not reach the merits of Edwin’s petition; rather, it

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
determined that the petition had not been brought within the one-year period of

limitation required by 28 U.S.C. § 2244(d)(1). We have jurisdiction pursuant to 28

U.S.C. § 2253(a), and we affirm.

      The parties are familiar with the facts of the case so we do not repeat them

here. Edwin has failed to demonstrate that he was eligible for either statutory or

equitable tolling. Section 2244(d)(2) requires “a properly filed application” to toll

the limitation period through the pendency of proceedings. See Pace v.

DiGuglielmo, 544 U.S. 408, 414–15 (2005). Edwin has not shown that he properly

filed any application until June 15, 2000—more than three years after the period

applicable to his federal claims began to run.

      He also fails to show entitlement to equitable tolling because he has not

satisfactorily shown that he took any action in regard to his claims from August 1,

1996, until October 1999. He then waited more than seven months to actually file

his claim on June 15, 2000. This is inadequate to demonstrate that he had been

pursuing his rights with “reasonable diligence.” Holland v. Florida, 130 S. Ct.

2549, 2555–59, 2565 (2010) (demonstrating facts sufficient to satisfy the

reasonable diligence standard).

      The decision of the Alaska Superior Court to exercise its discretion to relax

the filing deadlines to permit Edwin’s otherwise untimely state application did not


                                          2
require the district court to conclude that the more restrictive federal standard had

been met. Compare Spitsyn v. Moore, 345 F.3d 796, 802 (9th Cir. 2003) (“[I]f the

person seeking equitable tolling has not exercised reasonable diligence in

attempting to file, after the extraordinary circumstances began, the link of

causation between the extraordinary circumstances and the failure to file is broken

[. . . .]” (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000))), with

White v. State, 514 P.2d 814, 816 (Alaska 1973) (requiring only good cause in

order to permit a court to exercise its discretion to relax time requirements). An

evidentiary hearing is not required when no facts have been properly put at issue.

See Laws v. Lamarque, 351 F.3d 919, 921 (9th Cir. 2003) (“Because Laws has

made a good-faith allegation that would, if true, entitle him to equitable tolling, we

vacate the district court’s denial of the petition and remand for further factual

development of his claim . . . .”).

      AFFIRMED.




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