                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JAN 19 2011

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

DANIEL ELOY ROMERO,                              No. 07-16353

              Plaintiff - Appellant,             D.C. No. CV-04-00825-FJM

  v.
                                                 MEMORANDUM*
GAY; ARIZONA ATTORNEY
GENERAL,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Frederick J. Martone, District Judge, Presiding

                           Submitted January 12, 2011**
                             San Francisco, California

Before: HUG, SCHROEDER, and RAWLINSON, Circuit Judges.

       Arizona state prisoner Daniel Eloy Romero appeals from the district court’s

judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We have

jurisdiction pursuant to 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).
       The district court did not err by finding that Romero’s federal habeas

petition is barred by the one-year statute of limitations of 28 U.S.C. § 2244(d)(1).

Romero is not entitled to statutory tolling under 28 U.S.C. § 2244(d)(2) because

his February 2003 letter requesting sentence clarification can not be construed as a

“properly filed application for State post-conviction relief or other collateral

review . . . .” 28 U.S.C. § 2244(d)(2). Furthermore, Romero is not entitled to

equitable tolling because he has failed to demonstrate the existence of

extraordinary circumstances beyond his control that made it impossible for him to

file a petition on time. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).

      In light of the foregoing disposition, we decline to consider the merits of

Romero’s argument regarding the denial of earned release credits.

      AFFIRMED.




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