United States v. Herman Lemusu

FILED
NOT FOR PUBLICATION MAY 28 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-17711
Plaintiff - Appellee, D.C. Nos. 1:09-cv-00549-HG
1:02-cr-00130-HG
v.
HERMAN LEMUSU, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, District Judge, Presiding
Submitted May 13, 2014**
Before: CLIFTON, BEA, and WATFORD, Circuit Judges.
Herman Lemusu appeals pro se from the district court’s orders denying his
28 U.S.C. § 2255 motion as untimely and his subsequent motion for
reconsideration. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
Lemusu contends that he is entitled to equitable tolling because he was
*
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).
placed in administrative segregation, relied on inadequate legal assistance from a
fellow inmate, and was misled by the district court’s affirmative
misrepresentations. We review the district court’s equitable tolling decision de
novo. See United States v. Battles, 362 F.3d 1195, 1196 (9th Cir. 2004).
Lemusu’s claim to equitable tolling fails because he has not established that the
alleged impediments were “extraordinary circumstances” that prevented timely
filing of his section 2255 motion. See Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005) (equitable tolling available where the petitioner shows “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood
in his way”).
Lemusu contends that his actual innocence excuses his untimely filing.
Assuming this argument is properly before the court, it fails because Lemusu has
not demonstrated that, in light of new evidence, it is more likely than not that no
reasonable juror would have found him guilty beyond a reasonable doubt. See
McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 (2013).
Lemusu’s motion filed on March 11, 2013, requesting an expansion of the
certificate of appealability is denied. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195
F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).
AFFIRMED.
2 12-17711