Curtis Askins v. Hartley ( 2011 )

FILED
NOT FOR PUBLICATION AUG 31 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CURTIS D. ASKINS, No. 08-56715
Petitioner - Appellant, D.C. No. 2:01-cv-10752-MMM-
AN
v.
JAMES D. HARTLEY, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Submitted August 29, 2011 **
Pasadena, California
Before: ALARCÓN, O’SCANNLAIN, and SILVERMAN, Circuit Judges.
Curtis D. Askins appeals from the district court’s denial of his § 2254 habeas
petition. Because Askins filed the instant habeas petition more than four years
*
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).
1
after his conviction became final, it is time-barred under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2244(d)(1)(A).
Askins is not entitled to statutory tolling under 28 U.S.C. § 2244(d)(2)
because he did not file for state collateral relief until long after his AEDPA
limitations period expired. Jiminez v. Rice, 276 F.3d 478, 482 (9th Cir. 2001).
Nor is Askins entitled to equitable tolling. Askins has neither shown an
“extraordinary circumstance” that stood in the way of timely filing, Holland v.
Florida, 130 S. Ct. 2549, 2562 (2010); see also Ford v. Pliler, 590 F.3d 782, 788
(9th Cir. 2009), nor that “he has been pursuing his rights diligently,” Holland, 130
S. Ct. at 2562; see also Guillory v. Roe, 329 F.3d 1015, 1018 (9th Cir. 2003).
Finally, Askins’ argument that the instant habeas petition relates back to an
earlier-filed federal habeas petition is without merit. Rasberry v. Garcia, 448 F.3d
1150, 1155 (9th Cir. 2006). We therefore vacate the district court’s denial of
Askins’ petition on the merits and remand with an instruction that the district court
enter an order dismissing the petition as time-barred.
VACATED and REMANDED with INSTRUCTION.
2