King v. Gonzalez , 385 F. App'x 660 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 22 2010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
DARREL KING, No. 07-17105
Petitioner - Appellant, D.C. No. CV-06-07484-SBA
v.
MEMORANDUM *
FERNANDO GONZALEZ, Acting
Warden of the California Correctional
Institution,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Submitted June 18, 2010 **
San Francisco, California
Before: TYMKOVICH,*** BYBEE and N.R. SMITH, Circuit Judges.
*
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. ¶ 34(a)(2).
***
The Honorable Timothy M. Tymkovich, Circuit Judge for the Tenth
Circuit Court of Appeals, sitting by designation.
Petitioner-Appellant Darrel King appeals the district court’s decision
granting Respondent-Appellee’s motion to dismiss and denying King’s petition for
writ of habeas corpus. Although King concedes that his habeas petition was
untimely under the one-year period of limitations set forth in the Antiterrorism and
Effective Death Penalty Act of 1996, he argues that the district court erred in
holding that equitable tolling does not apply. We review this determination de
novo, see Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003), and we affirm.
Equitable tolling is available only if “extraordinary circumstances beyond a
prisoner’s control make it impossible to file a petition on time.” Id. at 799(quotation marks omitted). We have consistently held that “miscalculation of the
limitations period by [petitioner’s] counsel and his negligence in general do not
constitute extraordinary circumstances sufficient to warrant equitable tolling.”
Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001). Because King’s attorney
made a good faith effort to file King’s habeas petition but simply miscalculated the
filing deadline, his conduct was negligent at worst and does not constitute
extraordinary circumstances sufficient for equitable tolling. And given our
consistent proclamations that an attorney’s negligent miscalculation of a filing
deadline is insufficient to justify equitable tolling, we reject the argument that such
a miscalculation is sufficient when coupled with a client’s requests for diligence.
2
See id.AFFIRMED.
3