Richard Alva v. Timothy Busby , 588 F. App'x 621 ( 2014 )

FILED
NOT FOR PUBLICATION DEC 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD M. ALVA, No. 12-56855
Petitioner - Appellant, D.C. No. 2:11-CV-03408-MMM-
JPR
v.
TIMOTHY E. BUSBY, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Submitted October 6, 2014**
San Francisco, California
Before: THOMAS, Chief Judge, and D.W. NELSON and LEAVY, Circuit Judges.
Petitioner-Appellant Richard M. Alva appeals the district court’s judgment
dismissing his 28 U.S.C. § 2254 habeas corpus petition as time-barred. Alva
argues his petition was timely because he is entitled to equitable tolling for the time
*
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).
he was on administrative segregation, or “C-Status.” We have jurisdiction under
28 U.S.C. § 2253, and we affirm.
The district court did not err in dismissing Alva’s petition as time-barred.
AEDPA sets a one-year statute of limitations for filing a federal habeas petition
seeking relief from a state court judgment. 28 U.S.C. § 2244(d)(1). For Alva, the
statute of limitations was triggered on March 11, 2009. The one-year statute of
limitations is subject to equitable tolling, Holland v. Florida, 560 U.S. 631, 649
(2010), and statutory tolling while state court habeas petitions are “pending” in
state court, 28 U.S.C. § 2244(d)(2). Assuming that Alva is entitled to statutory
tolling for the entire period his state court petitions were pending, his federal
petition was still filed four days late.
Alva argues these four days should be equitably tolled because he was
suffering from a mental impairment and did not have access to the law library for
the 90 days he was on C-Status.
Alva submitted a declaration stating his petition was delayed because he
suffered from distress and hypoglycemia which caused confusion and difficulty
thinking. To qualify for equitable tolling based on a mental impairment, Alva must
show that the impairment was so severe that (1) he was unable personally to
understand the need to file timely; and (2) under the totality of the circumstances it
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was impossible for him to meet the filing deadline, despite his diligence. Bills v.
Clark, 628 F.3d 1092, 1099–1100 (9th Cir. 2010). Alva does not meet the Bills
standard because he only claims his confusion made it difficult for him to find
assistance from another inmate with filing the petition, he does not claim that he
did not understand the need to file timely, or that his mental condition made it
impossible for him to prepare the petition personally. See Chaffer v. Prosper, 592
F.3d 1046, 1049 (9th Cir. 2010) (no tolling for delay caused by unavailable inmate
helpers).
Alva also argues that he is entitled to equitable tolling because he lacked
access to the law library while he was on C-Status. C-status prisoners are allowed
out of their cells for an hour-and-a-half per day during which the prisoner can
choose between showering, going to the yard, or going to the law library.
“Ordinary prison limitations on [Alva’s] access to the law library,” such as those
imposed during administrative segregation, typically do not constitute an
extraordinary circumstance. Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009).
Alva does not explain how limited access to the library affected his ability to
prepare the petition timely, and he was in fact able to file his petition while he was
still on C-Status. Although Alva claims the limited library and yard access
impeded his efforts to find assistance from another inmate, he does not claim that
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he personally was unable to prepare the petition in a timely manner for any reason
aside from his lack of understanding of the law. See Rasberry v. Garcia, 448 F.3d
1150, 1154 (9th Cir. 2006) (“[A] pro se petitioner’s lack of legal sophistication is
not, by itself, an extraordinary circumstance warranting equitable tolling.”). Under
these circumstances, equitable tolling is not warranted.
The district court did not err in dismissing Alva’s petition as time-barred.
AFFIRMED.
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