Jesus Diaz v. Roseanne Campbell , 411 F. App'x 975 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 24 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JESUS ORNELAS DIAZ, No. 09-15373
Petitioner - Appellant, D.C. No. 5:06-cv-06370-RMW
v.
MEMORANDUM *
ROSEANNE CAMPBELL,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Submitted January 10, 2011 **
Before: BEEZER, TALLMAN, and CALLAHAN Circuit Judges.
California state prisoner Jesus Ornelas Diaz 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.
*
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).
Diaz contends that the district court erred in dismissing his petition as
untimely. He relies on Mendoza v. Carey, 449 F.3d 1065 (9th Cir. 2006), to argue
that he is entitled to equitable tolling because he did not have access to Spanish
language materials or bilingual assistance. However, he fails to sufficiently
“demonstrate that during the running of the AEDPA time limitations, he was
unable, despite diligent efforts, to procure either legal materials in his own
language or translation assistance from an inmate, library personnel, or other
source” which could constitute grounds for equitable tolling. See Mendoza, 449
F.3d at 1068-70 (recognizing “that equitable tolling may be justified if language
barriers actually prevent timely filing”) (italics added).
In a related claim, Diaz contends that the statute of limitations did not begin
until a state-created impediment was removed. However, the record shows that
Diaz was able to file two state habeas petitions. See Ramirez v. Yates, 571 F.3d
993, 1000-1001 (9th Cir. 2009) (relief under 28 U.S.C. § 2244(d)(1)(B) available
only if impediment prevented any filing in any court).
Finally, Diaz contends that he is entitled to gap tolling for the periods
between his filings in the state courts. Diaz has failed to demonstrate that he filed
his petitions within a reasonable time, such that they were “pending” pursuant to
28 U.S.C. § 2244(d)(2). See Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010).
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Diaz’s request for an evidentiary hearing and oral arguments are denied.
AFFIRMED.
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