                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 13 2011

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




                            FOR THE NINTH CIRCUIT



ARTHUR ASHLEY,                                   No. 09-35684

              Petitioner - Appellant,            D.C. No. 6:09-cv-00009-HO

       v.
                                                 MEMORANDUM *
MARK NOOTH,

              Respondent - Appellee.

                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael R. Hogan, District Judge, Presiding

                             Submitted June 7, 2011 **
                                Portland, Oregon

Before: FISHER, GOULD and PAEZ, Circuit Judges.

      Arthur Ashley appeals the district court’s dismissal of his 28 U.S.C. § 2254

habeas petition, which the district court found untimely under 28 U.S.C. § 2244.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
         The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       We granted a certificate of appealability (COA) on two issues: (1) whether

the district court was correct in concluding that Ashley’s conviction was “final”

within the meaning of § 2244(d)(1)(A) at the time the appellate court entered its

formal judgment, and (2) whether Ashley was entitled to equitable tolling due to

his hernia condition. Because neither party argues on appeal that the district court

erred in determining when Ashley’s conviction was “final” under § 2244, and

because the statute of limitations is not jurisdictional, see Day v. McDonough, 547

U.S. 198, 205 (2006), we decline to consider the first certified issue.

      We reject Ashley’s argument that he was entitled to equitable tolling due to

his hernia, because nothing in the record suggests that his condition was an

“impairment so severe that . . . [it] made it impossible under the totality of the

circumstances to meet the filing deadline despite petitioner’s diligence.” Bills v.

Clark, 628 F.3d 1092, 1093 (9th Cir. 2010). The district court did not abuse its

discretion by refusing to hold an evidentiary hearing. See Roberts v. Marshall, 627

F.3d 768, 773 (9th Cir. 2010).

      Ashley raises three uncertified issues, which we construe as a motion to

expand the COA, and deny. See 9th Cir. R. 22-1(e). Ashley has not made a

“substantial showing of the denial of a constitutional right” with respect to any of




                                           2
the uncertified issues. Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999)

(quoting 28 U.S.C. § 2253(c)(2)) (internal quotation marks omitted).

      AFFIRMED.




                                         3
