Thomas Nouan v. Charles Ryan ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS NOUAN, No. 19-15561
Petitioner-Appellant, D.C. No. 2:17-cv-02743-GMS
v.
MEMORANDUM*
CHARLES L. RYAN; ATTORNEY
GENERAL FOR THE STATE OF
ARIZONA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Submitted August 19, 2019**
Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.
Arizona state prisoner Thomas Nouan appeals pro se from the district court’s
judgment dismissing his 28 U.S.C. § 2254 habeas corpus petition as untimely. We
have jurisdiction under 28 U.S.C. § 2253. We review de novo, see Bills v. Clark,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
628 F.3d 1092, 1096 (9th Cir. 2010), and we affirm.
Nouan contends that he is entitled to equitable tolling of the Antiterrorism
and Effective Death Penalty Act’s (“AEDPA”) one-year statute of limitations
because (1) he misunderstood the date from which the AEDPA limitations period
began running, and (2) his counsel during state post-conviction relief proceedings
failed to inform him of AEDPA’s filing deadline. These contentions fail. A pro se
petitioner’s “inability correctly to calculate the limitations period is not an
extraordinary circumstance warranting equitable tolling.” Rasberry v. Garcia, 448
F.3d 1150, 1154 (9th Cir. 2006). Moreover, because there is no constitutional right
to the effective assistance of counsel in state post-conviction proceedings, any
attorney negligence does not amount to an extraordinary circumstance warranting
equitable tolling. See Miranda v. Castro, 292 F.3d 1063, 1067-68 (9th Cir. 2002).
Accordingly, Nouan has not met his heavy burden to show that an extraordinary
circumstance beyond his control prevented him from timely filing his habeas
petition. See Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010).
AFFIRMED.
2 19-15561