
    Frank Irvin MOPPINS, Petitioner-Appellant, v. Thomas CAREY, Respondent-Appellee.
    No. 08-15220.
    United States Court of Appeals, Ninth Circuit.
    Submitted May 12, 2009.
    
    Filed May 21, 2009.
    Frank Irvin Moppins, Vacaville, CA, pro se.
    Kasey E. Jones, AGCA-Offiee of the California Attorney' General, Sacramento, CA, for Respondent-Appellee.
    Before: PREGERSON, CANBY, and BERZON, Circuit Judges.
    
      
       The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

California state prisoner Frank Irvin Moppins appeals pro se from the district court’s judgment dismissing his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Moppins contends that he is entitled to statutory tolling during the pendency of a state habeas petition filed in superior court; and to equitable tolling based upon the misconduct of his attorney. Moppins has failed to show that the state habeas petition referred to provides a proper basis for statutory tolling, or that extraordinary circumstances beyond his control prevented him from timely filing. See 28 U.S.C. § 2244(d)(2); Welch v. Carey, 350 F.3d 1079, 1082 (9th Cir.2003); Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003).

We construe the uncertified issues raised in Moppins’s opening brief as a motion to expand the certificate of appeal-ability, and we deny the motion. See 9th Cir. R. 22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).

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