Jose Perez v. Derrell Adams , 405 F. App'x 262 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 13 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE PEREZ, No. 09-16261
Petitioner - Appellant, D.C. No. 2:07-cv-01344-MCE
v.
MEMORANDUM *
DERRAL G. ADAMS, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Submitted December 6, 2010 **
Before: GOODWIN, RYMER, and GRABER, Circuit Judges.
California state prisoner Jose Perez appeals from the district court’s
judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
Perez contends that he is entitled to equitable tolling of the Antiterrorism
*
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).
and Effective Death Penalty Act’s one-year statute of limitations, due to his lack of
legal sophistication, abandonment by appellate counsel, and other circumstances
beyond his control. Perez’s contention fails because a pro se petitioner’s lack of
legal sophistication is not an extraordinary circumstance warranting equitable
tolling. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). Moreover,
because there is no constitutional right to the effective assistance of counsel in state
post-conviction proceedings, attorney negligence does not amount to an
extraordinary circumstance sufficient to warrant equitable tolling. See Miranda v.
Castro, 292 F.3d 1063, 1066-68 (9th Cir. 2002). Similarly, Perez has failed to
establish that any of his remaining contentions entitles him to equitable tolling.
AFFIRMED.
2 09-16261