James Nivette v. James Yates

FILED
NOT FOR PUBLICATION JUL 02 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES D. NIVETTE, No. 08-16426
Petitioner - Appellant, D.C. No. 2:07-cv-00759-LKK
v.
MEMORANDUM *
JAMES A. YATES, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Submitted June 29, 2010 **
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
California state prisoner James D. Nivette appeals from the district court’s
judgment dismissing his pro se 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).
Nivette contends that the district court erred by: (1) denying equitable tolling
of the one-year statute of limitations under the Antiterrorism and Effective Death
Penalty Act; and (2) failing to conduct an evidentiary hearing. The record reflects
that the district court properly rejected Nivette’s argument for equitable tolling
because Nivette has not shown that his mental disabilities constituted an
extraordinary circumstance that caused his delay in filing a federal habeas petition.
See Bryant v. Arizona Atty. Gen., 499 F.3d 1056, 1061 (9th Cir. 2007); see also
Gaston v. Palmer, 417 F.3d 1030, 1034-35 (9th Cir. 2005), reversed on other
grounds, 447 F.3d 1165 (9th Cir. 2006).
Nivette has also failed to present sufficient evidence of mental incompetency
to warrant an evidentiary hearing. Cf. Laws v. Lamarque, 351 F.3d 919, 923-24
(9th Cir. 2003).
AFFIRMED.
08-16426