Martinez v. Knowles , 359 F. App'x 732 ( 2009 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 16 2009
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
TONY RICHARD MARTINEZ, No. 07-55625
Petitioner - Appellant, D.C. No. CV-06-01039-RGK
v.
MEMORANDUM *
M. KNOWLES,
Respondent - Appellee.
TONY RICHARD MARTINEZ, No. 07-56102
Petitioner - Appellant, D.C. No. CV-06-01039-RGK
v.
M. KNOWLES,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted November 3, 2009
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER, SILER, ** and IKUTA, Circuit Judges.
In appeal no. 07-55625, Martinez’s claim for equitable tolling fails because
he did not sufficiently demonstrate that “extraordinary circumstances made it
impossible to file a petition on time.” Ramirez v. Yates, 571 F.3d 993, 997 (9th
Cir. 2009) (alterations and quotation marks omitted). Because “[o]rdinary prison
limitations on [a petitioner’s] access to the law library” are “neither ‘extraordinary’
nor made it ‘impossible’ for [the petitioner] to file his petition in a timely manner,”
id. at 998, Martinez is not entitled to equitable tolling for the period during which
he was in prison lockdown and prevented from accessing the law library and
necessary legal materials. Indeed, Martinez was able to file his untimely federal
habeas petition during this period. Even if Martinez was entitled to equitable
tolling for the eleven days he was denied access to his legal files, his habeas
petition would still be untimely, because he filed his petition thirteen days late.
We lack jurisdiction to consider the merits of appeal no. 07-56102 because
Martinez failed to appeal the district court’s denial of his motion for an extension
of time to file a late appeal (the “Denial Order”). “[A]n order denying a motion to
**
The Honorable Eugene E. Siler, Jr., Senior United States Circuit
Judge for the Sixth Circuit, sitting by designation.
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file a late notice of appeal is itself appealable,” Diamond v. U. S. Dist. Ct., 661
F.2d 1198, 1198 (9th Cir. 1981), and Martinez’s failure to file a notice of appeal, as
required by Federal Rule of Appellate Procedure 3, “is fatal to an appeal,” Smith v.
Barry, 502 U.S. 244, 248 (1992). See 16A Charles Alan Wright et al., Federal
Practice and Procedure § 3950.3, at 307 & n.130 (4th ed. 2008). Contrary to
Martinez’s argument, the Denial Order did not state that Martinez need not file a
notice of appeal to the Denial Order. Rather, the Denial Order stated that Martinez
need not file a “separate notice of appeal” to appeal the court’s earlier denial of his
habeas petition because Martinez’s previously filed notice of appeal was sufficient.
Appeal no. 07-55625 AFFIRMED; appeal no. 07-56102 DISMISSED
FOR LACK OF JURISDICTION.
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