James Daly v. W. Knipp , 585 F. App'x 647 ( 2014 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 19 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES E. DALY, No. 13-16294
Petitioner - Appellant, D.C. No. 4:12-cv-00091-PJH
v.
MEMORANDUM*
W. KNIPP, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted November 17, 2014**
San Francisco, California
Before: GOULD, WATFORD, and FRIEDLAND, Circuit Judges.
James E. Daly appeals from an order by the Northern District of California
dismissing his federal habeas corpus petition as untimely under 28 U.S.C. § 2244(d).
*
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).
We agree with the district court that Daly has not demonstrated that he is entitled to
equitable tolling, so we affirm.1
The district court’s decision to dismiss a § 2254 habeas petition as untimely is
reviewed de novo. Nedds v. Calderon, 678 F.3d 777, 780 (9th Cir. 2012). The
district court’s decision not to order an evidentiary hearing is reviewed for abuse of
discretion. Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006).
Absent equitable tolling, Daly’s petition was 197 days late. A habeas
petitioner is entitled to equitable tolling “only if he shows ‘(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in
his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649
(2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The petitioner
bears the burden of showing that equitable tolling should apply.
Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). A habeas
petitioner is entitled to an evidentiary hearing when the petitioner “makes a
good-faith allegation that would, if true, entitle him to equitable tolling.” Roy, 465
F.3d at 969 (emphasis, citation, and internal quotation marks omitted).
1
Daly asks this court to take judicial notice of the exhibits attached to his federal
habeas petition. Blue Br. at 14-15 n.1. Original papers and exhibits filed in the
district court are already part of the record on appeal, see F.R.A.P. 10(a)(1), so the
request to take judicial notice is denied as unnecessary.
2
A petitioner’s complete lack of access to his legal file can justify equitable
tolling. See Espinoza-Matthews, 432 F.3d at 1028; Spitsyn v. Moore, 345 F.3d 796,
801 (9th Cir. 2003). But Daly’s allegations of limited access to his legal file do not
rise to the level of extraordinary circumstances. See Chaffer v. Prosper, 592 F.3d
1046, 1049 (9th Cir. 2010) (per curiam) (holding that petitioner’s “pro se status, a
prison library that was missing a handful of reporter volumes, and reliance on
helpers who were transferred or too busy to attend to his petitions” were “hardly
extraordinary given the vicissitudes of prison life”); Ramirez v. Yates, 571 F.3d 993,
998 (9th Cir. 2009) (“Ordinary prison limitations on [a petitioner’s] access to the law
library and copier . . . were neither ‘extraordinary’ nor made it ‘impossible’ for him
to file his petition in a timely manner.”). Nor does Daly point to specific documents
he needed but could not access. See Waldron-Ramsey v. Pacholke, 556 F.3d 1008,
1013-14 (9th Cir. 2009) (“Waldron-Ramsey does not point to specific instances
where he needed a particular document, could not have kept that document within
his permitted three boxes had he been cooperative, and could not have procured that
particular document when needed.”).
Because Daly has not alleged facts that would entitle him to equitable tolling,
it was not an abuse of discretion for the district court to decline to order an
evidentiary hearing.
3
The other circumstances for which Daly requests equitable tolling together
account for only 123 days, so even if those circumstances merited equitable tolling,
Daly’s petition would be untimely. We therefore have no reason to evaluate those
circumstances.
For the foregoing reasons, we AFFIRM.
4