# Carl Brown v. Joe Driver

> Court of Appeals for the Ninth Circuit · May 19, 2015 · 604 F. App'x 562

URL: https://www.frixlaw.com/law-library/cases/2801957

## Case

- **Full name:** Carl E. BROWN, Petitioner-Appellant, v. Joe D. DRIVER, Respondent-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** May 19, 2015
- **Citations:** 604 F. App'x 562
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Leavy, Callahan, Smith
- **Nature of suit:** Habeas
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

FILED
NOT FOR PUBLICATION MAY 19 2015

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

FOR THE NINTH CIRCUIT

CARL E. BROWN, No. 13-35026

Petitioner - Appellant, D.C. No. 3:11-cv-00150-RRB
v.

JOE D. DRIVER, MEMORANDUM*

Respondent - Appellee.

Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief Judge, Presiding

Submitted May 13, 2015**

Before: LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.

Alaska state prisoner Carl E. Brown appeals pro se from the district court’s

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

jurisdiction under 28 U.S.C. § 2253. We review de novo the district court’s

decision that a Section 2254 habeas petition is untimely, see Bills v. Clark, 628

F.3d 1092, 1096 (9th Cir. 2010), 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).
Brown contends that he is entitled to equitable tolling for three periods:

December 6, 2009 to April 5, 2010; October 12, 2010 to November 1, 2010; and

November 8, 2000 to April 14, 2011. Even assuming that Brown is entitled to

equitable tolling for the first two periods, he is not entitled to equitable tolling on

the last, rendering his section 2254 petition untimely.

Brown contends that Jimenez v. Quarterman, 555 U.S. 113 (2009), entitles

him to equitable tolling from November 8, 2010 to April 14, 2011. Brown is

incorrect. The Alaska Court of Appeals order did not restore the pendency of

Brown’s direct appeal, nor render his conviction capable of modification on direct

appeal to the state court or to the Supreme Court on certiorari review. See Randle

v. Crawford, 604 F.3d 1047, 1056-57 (9th Cir. 2010). Jimenez therefore does not

apply. See id.

We need not reach the issue of whether the mailbox rule applies to Brown’s

state court filings, as it does not affect the result. Brown’s petition is untimely

regardless of whether the mailbox rule is applied.

Finally, because we affirm on timeliness grounds, we do not address whether

Brown’s failure to name the proper party separately justifies affirmance.

AFFIRMED.

2 13-35026

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2801957. Public record. Not legal advice.