Lawrence Schwiger v. Jack Palmer , 585 F. App'x 488 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 20 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LAWRENCE E. SCHWIGER, No. 13-15564
Petitioner - Appellant, D.C. No. 3:09-cv-00454-LRH-
VPC
v.
JACK PALMER; ATTORNEY MEMORANDUM*
GENERAL OF THE STATE OF
NEVADA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted October 7, 2014
San Francisco, California
Before: O’SCANNLAIN, THOMAS, and McKEOWN, Circuit Judges.
Lawrence Schwiger appeals the dismissal of his 28 U.S.C. § 2254 habeas
corpus petition. Dismissal of a habeas petition on timeliness grounds is reviewed
de novo, Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010), as is equitable tolling
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
where the facts are undisputed, Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.
2003). We have jurisdiction pursuant to 28 U.S.C. § 2253, and affirm.
As counsel acknowledged during argument, Schwiger’s claim that the
district judge should have affirmatively advised him to file a new petition is
foreclosed by Pliler v. Ford, 542 U.S. 225, 231 (2004) (“Requiring district courts
to advise a pro se litigant in such a manner would undermine district judges’ role
as impartial decisionmakers.”).
We expand the certificate of appealability to include the issue of whether
equitable tolling is warranted on the grounds that the district court affirmatively
misled Schwiger. Under the circumstances presented here, Schwiger was not
misled and no “extraordinary circumstance stood in his way” to prevent timely
filing. Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)).1
AFFIRMED.
1
Because he is represented by counsel, we decline to entertain
Schwiger’s pro se motion to take judicial notice. See United States v. Bergman,
813 F.2d 1027, 1030 (9th Cir. 1987).
2