
    Jeremy Thomas CLARK, Petitioner—Appellant, v. Mike MARTEL, Respondent—Appellee.
    No. 10-16986.
    United States Court of Appeals, Ninth Circuit.
    Submitted Sept. 27, 2011.
    
    Filed Oct. 5, 2011.
    Jeremy Thomas Clark, pro se.
    Brian G. Smiley, Supervising Deputy Attorney General, AGCA-Office of the California Attorney General, Sacramento, CA, for Respondent-Appellee.
    Before: HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

California state prisoner Jeremy Thomas Clark 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, and we affirm.

Clark contends his petition is not subject to AEDPA’s statute of limitations, because he is actually innocent in the sense that the Information, jury charge, and jury verdict forms only permitted a finding of guilt for second degree murder, and therefore he was improperly found guilty of first degree murder. The district court properly dismissed the habeas petition as untimely as it was filed after the one-year statutory limitations period had ended. See 28 U.S.C. § 2244(d). Clark presents no new evidence of actual innocence sufficient to excuse his untimely filing. See Lee v. Lampert, 653 F.3d 929, 937-38, 2011 WL 3275947, at *6 (9th Cir.2011). “[A]ctual innocence means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (internal quotation marks omitted).

We construe appellant’s additional arguments as a motion to expand the certificate of appealability. So construed, the motion is denied. See 9th Cir. R. 22 — 1(e); 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.
     