Nicholas Garcia v. Robert Wong , 404 F. App'x 182 ( 2010 )

FILED
NOT FOR PUBLICATION NOV 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
NICHOLAS B. GARCIA, No. 09-15221
Petitioner - Appellant, D.C. No. 2:07-cv-00621-ALA
v.
MEMORANDUM *
ROBERT K. WONG, Acting Warden of
California State Prison - Solano,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Arthur L. Alarcón, Senior Circuit Judge, Presiding
Submitted November 16, 2010 **
Before: TASHIMA, BERZON, and CLIFTON, Circuit Judges.
California state prisoner Nicholas B. Garcia appeals from the district court’s
judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We have
*
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).
jurisdiction under 28 U.S.C. § 2253,1 and we affirm.
Garcia contends that he is entitled to equitable or statutory tolling because
prison officials withheld his legal documents from him. Even assuming this
alleged deprivation was an “extraordinary circumstance,” Garcia is not entitled to
equitable tolling because he failed to demonstrate that this circumstance caused the
untimely filing of his petition. See Bryant v. Schriro, 499 F.3d 1056, 1061 (9th
Cir. 2007). Lack of causation also defeats his entitlement to statutory tolling. Id.
at 1060.
Because the facts alleged by Garcia do not warrant equitable tolling, the
district court also did not abuse its discretion in denying Garcia an evidentiary
hearing. See Tapia v. Roe, 189 F.3d 1052, 1058 (9th Cir. 1999).
Garcia’s motion for change of venue upon remand is denied as moot.
AFFIRMED.
1
After this court’s decision in Hayward v. Marshall, 603 F.3d 546 (9th Cir.
2010) (en banc), Garcia moved the court for issuance of a certificate of
appealability on the issue of whether the district court properly dismissed his
habeas petition as untimely. We grant Garcia’s motion and certify this issue for
appeal. We also certify for appeal the issue of whether the district court abused its
discretion by declining to hold an evidentiary hearing regarding Garcia’s
entitlement to equitable tolling.
2 09-15221