United States v. Edward Mallory

FILED
NOT FOR PUBLICATION AUG 01 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-17239
Plaintiff - Appellee, D.C. Nos. 2:12-cv-02700-EJG
2:09-cr-00090-WBS
v.
EDWARD MALLORY, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Submitted July 26, 2016**
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
Federal prisoner Edward Mallory appeals from the district court’s order
denying his 28 U.S.C. § 2255 motion as untimely. We have jurisdiction under 28
U.S.C. § 2253. We review de novo the district court’s decision that a section 2255
*
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).
motion is untimely, see United States v. Battles, 362 F.3d 1195, 1196 (9th Cir.
2004), and we affirm.
Mallory contends that he is entitled to equitable tolling for the period
between January 30, 2012, and July 18, 2012, during which his motion to reduce
his sentence under 18 U.S.C. § 3582 was pending in the district court. Neither the
pendency of Mallory’s section 3582(c)(2) motion nor his lack of legal expertise
constitute extraordinary circumstances that kept him from timely filing a
section 2255 motion. See Battles, 362 F.3d at 1197 (stating standard for equitable
tolling); see also Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (“[L]ack
of legal sophistication is not, by itself, an extraordinary circumstance warranting
equitable tolling.”). We further note that the issue presented in Mallory’s section
3582(c)(2) motion was unrelated to that presented in his section 2255 motion, and
considerations of judicial economy do not require a different result here.
AFFIRMED.
2 14-17239