Nicolas Felix v. E. McDaniel , 589 F. App'x 382 ( 2015 )

FILED
NOT FOR PUBLICATION JAN 16 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICOLAS FELIX, No. 12-15649
Petitioner - Appellant, D.C. No. 3:09-CV-00483-LRH-
WGC
v.
RENEE BAKER and NEVADA MEMORANDUM*
ATTORNEY GENERAL,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted October 6, 2014**
San Francisco, California
Before: THOMAS, Chief Judge, and D.W. NELSON and LEAVY, Circuit Judges.
Petitioner Nicolas Felix (“Felix”) appeals the district court’s dismissal of his
federal habeas petition as untimely. We have jurisdiction pursuant to 28 U.S.C.
§ 2253, 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).
The district court did not err in concluding that Felix is not entitled to
equitable tolling. We have held that a “combination of (1) a prison law library’s
lack of Spanish-language legal materials, and (2) a petitioner’s inability to obtain
translation assistance before the one-year deadline, could constitute extraordinary
circumstances” entitling that petitioner to equitable tolling. Mendoza v. Carey, 449
F.3d 1065, 1069 (9th Cir. 2006). “[A] non-English-speaking petitioner seeking
equitable tolling must, at a minimum, demonstrate that during the running of the
AEDPA time limitation, he was unable, despite diligent efforts, to procure either
legal materials in his own language or translation assistance from an inmate,
library personnel, or other source.” Id. at 1070. In January 2007, Felix mailed his
state habeas petition in English. While he submitted some papers to the district
court in Spanish, he was able to submit his pro se habeas petition, his application to
proceed in forma pauperis and his motion for the appointment of counsel in
English. This record suggests that Felix either has some proficiency in English or
access to a translator and is, thus, barred from equitable relief. See id. at 1069.
Fleix’s claim that he is entitled to equitable tolling because he relied on his
attorney’s miscalculation of the filing deadline is without merit. See, e.g.,
Lawrence v. Florida, 549 U.S. 327, 336–37 (2007); Randle v. Crawford, 604 F.3d
1047, 1058 (9th Cir. 2009).
2
The district court did not err in finding statutory tolling inapplicable.
AEDPA provides that the one-year statute of limitations does not begin to run until
“the date on which the impediment to filing an application created by State action
in violation of the Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action.” 28 U.S.C.
§ 2244(d)(1)(B). Here, Felix was able to file his federal petition, albeit late. He
has not provided a specific time-frame for when a state-created impediment to
filing his petition was removed. Felix’s ability to file a state habeas petition
successfully while subject to the alleged impediment undermines his assertion that
unconstitutional state action prevented him from timely filing a federal habeas
petition.
AFFIRMED.
3