United States v. Ruben Avila

FILED
NOT FOR PUBLICATION JAN 16 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-17761
Plaintiff - Appellee, D.C. Nos. 2:10-cv-01334-GEB
2:06-cr-00049-GEB
v.
RUBEN GONZALEZ AVILA, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted January 15, 2013 **
Before: SILVERMAN, BEA, and NGUYEN, Circuit Judges.
Federal prisoner Ruben Gonzalez Avila appeals pro se from the district
court’s order dismissing his motion under 28 U.S.C. § 2255 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).
Gonzalez Avila contends that he is entitled to equitable tolling because his
trial counsel incorrectly advised him about when the limitations period began to
run. We review the dismissal of a section 2255 motion on timeliness grounds de
novo. See United States v. Buckles, 647 F.3d 883, 887 (9th Cir. 2011). We also
review a request for equitable tolling de novo. See United States v. Aguirre-
Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2011). Gonzalez Avila is not entitled to
equitable tolling because he has not shown that his attorney’s conduct was so
egregious as to constitute an “extraordinary circumstance” that prevented him from
filing a timely section 2255 motion. See Holland v. Florida, 130 S. Ct. 2549, 2564
(2010); Aguirre-Ganceda, 592 F.3d at 1046 (“Extraordinary circumstances do not
include a lawyer’s miscalculation of a limitation period.”).
We construe Gonzalez Avila’s additional arguments as a motion to expand
the certificate of appealability. So construed, the motion 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 10-17761