Floyd Eugene BARNES, Petitioner-Appellant, v. R. CAMPBELL, Respondent-Appellee, 373 F. App'x 676

MEMORANDUM California state prisoner Floyd Eugene Barnes appeals pro se from the district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm. The district court did not err when it dismissed Barnes’ habeas petition as untimely. See 28 U.S.C. § 2244(d)(1). Barnes’ state habeas petition filed in the San Diego Superior Court did not toll AEDPA’s limitations period because it was not properly filed. See Pace v.

DiGuglielmo, 544 U.S. 408, 417, 125 S.Ct. 1807, 161 L.Ed.2d 669 (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). Barnes’ contention that application of Pace to this case violates the constitution’s Ex Post Facto clause is without merit. See Allen v.

Siebert, 552 U.S. 3, 128 S.Ct. 2, 169 L.Ed.2d 329 (2007) (per curiam) (applying Pace to a habeas petition filed before Pace was decided). Barnes contends the district court erred because it failed to determine whether California’s timeliness rule is “adequate.” A state’s timeliness rule is a “condition to filing” and not a “procedural bar.” Pace, 544 U.S. at 417, 125 S.Ct. 1807. Therefore, “whether a condition to filing is firmly established and regularly followed is irrelevant.” See Zepeda v. Walker, 581 F.3d 1013, 1018 (9th Cir.2009). AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.