Joseph Reister v. Dora Schriro , 384 F. App'x 555 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 15 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSEPH A. REISTER, No. 08-17247
Petitioner - Appellant, D.C. No. 2:07-cv-02296-JAT
v.
MEMORANDUM *
DORA B. SCHRIRO and ATTORNEY
GENERAL FOR THE STATE OF
ARIZONA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Arizona state prisoner Joseph A. Reister appeals pro se from the district
court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
*
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).
Reister contends that the district court erred by dismissing his habeas
petition as untimely. Specifically, he contends that the statute of limitations never
began to run, or that he is entitled to equitable tolling because: 1) the late filing of
his federal habeas petition is based on the state court’s error in failing to transfer
his 2002 state habeas corpus petition to its proper jurisdiction; and 2) he lacks legal
training while the circumstances in his case overwhelmingly favor the state. The
record reflects that it took Reister over three years after the one-year statute of
limitations deadline had passed to file the instant petition. See 28 U.S.C.
§ 2244(d)(1); see also Bryant v. Arizona Attorney General, 499 F.3d 1056, 1059-
60 (9th Cir. 2007) (limitations period statutory tolled only if an unconstitutional
state action prevents petitioner from filing). Additionally, Reister is not entitled to
equitable tolling because he has not shown that his untimeliness “was caused by an
external impediment and not by his own lack of diligence.” Bryant, 499 F.3d at
1061; see also Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“[A] pro
se petitioner’s lack of legal sophistication is not, by itself, an extraordinary
circumstance warranting equitable tolling.”). Accordingly, the district court
properly dismissed the petition as time-barred.
AFFIRMED.
2 08-17247