                                                                            FILED
                            NOT FOR PUBLICATION                              SEP 01 2010

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




                            FOR THE NINTH CIRCUIT



GREGORIO C. FUNTANILLA, Jr.,                     No. 09-15479

               Petitioner - Appellant,           D.C. No. 1:06-cv-01181-LJO

  v.
                                                 MEMORANDUM *
KEN CLARK, Warden,

               Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                            Submitted August 10, 2010 **

Before:        LEAVY, HAWKINS, and IKUTA, Circuit Judges.

       California state prisoner Gregorio C. Funtanilla, Jr. appeals pro se from the

district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We




          *
             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).
have jurisdiction pursuant to 28 U.S.C. § 2253 1, and we affirm.

      The district court did not err when it dismissed Funtanilla’s habeas petition

as untimely. See 28 U.S.C. § 2244(d)(1). Even if Funtanilla were entitled to

equitable tolling from the time he discovered the factual predicate of his claim until

he filed his first state habeas petition, his federal petition was untimely. Equitable

tolling would have ended on January 27, 2003, when Funtanilla filed his state

habeas petition, as he was capable of pursuing habeas relief as of that date. See

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

grounds by 447 F.3d 1165 (9th Cir. 2006). The Kings County Superior Court

concluded his state habeas petition was untimely, and therefore that petition did not

toll AEDPA’s limitations period because it was not properly filed. See Pace v.

DiGuglielmo, 544 U.S. 408, 417 (2005) (“Because the state court rejected

petitioner’s [postconviction] petition as untimely, it was not ‘properly filed,’ and

he is not entitled to statutory tolling under § 2244(d)(2).”); Bonner v. Carey, 425

F.3d 1145, 1148-49 (9th Cir. 2005) (applying Pace to California’s timeliness rule

for postconviction petitions), as amended, 439 F.3d 993 (9th Cir. 2006).



      1
          We certify for appeal, on our own motion, the issue of whether the district
court properly dismissed Funtanilla’s habeas petition as untimely, and whether the
district court abused its discretion by declining to hold an evidentiary hearing
regarding Funtanilla’s entitlement to equitable tolling.

                                           2                                     09-15479
Accordingly, AEDPA’s limitations period expired on January 27, 2004, more than

two and a half years before Funtanilla filed his 2006 federal habeas petition.

Because Funtanilla’s federal petition was untimely regardless of equitable tolling,

there was no basis for the district court to hold an evidentiary hearing. See Roy v.

Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (stating that a habeas petitioner should

receive an evidentiary hearing when allegations, if true, would entitle him to

equitable tolling).

      AFFIRMED.




                                          3                                      09-15479
