FILED
NOT FOR PUBLICATION JUN 02 2010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
DELBERT GREENE, No. 08-16555
Petitioner-Appellant, D.C. No. 2:07-cv-0092-LRH-LRL
v.
MEMORANDUM *
E. K. McDANIEL, WARDEN,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted May 14, 2010 **
San Francisco, California
Before: HUG and McKEOWN, Circuit Judges, and FAWSETT, Senior District
Judge.***
*
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).
***
The Honorable Patricia C. Fawsett, Senior United States District
Judge for the Middle District of Florida, sitting by designation.
We must determine whether the district court properly dismissed the 28 U.S.C.
§ 2254 petition of Appellant Delbert Greene as untimely and whether Greene is
entitled to equitable tolling on the ground that the district court erred when it
dismissed his earlier, timely filed habeas petition in Greene v. Nevens, 2:06-cv-1009-
RCJ-RJJ (D. Nev.) (“Nevens II”).
Because Greene filed his federal habeas petition after April 24, 1996, the
Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this case. See,
e.g., Juan H. v. Allen, 408 F.3d 1262, 1270 (9th Cir. 2005). “We review de novo a
district court’s order denying a habeas petition on statute of limitations grounds.”
Randle v. Crawford, 578 F.3d 1177, 1181 (9th Cir. 2009). Because the parties do not
dispute any of the facts in the record, we also review the district court’s decision to
deny equitable tolling de novo. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).
Greene filed the habeas petition in this case beyond the one-year AEDPA
limitations period under 28 U.S.C. § 2244(d)(1). However, the limitations period may
be equitably tolled if Greene shows that: (1) he pursued his rights diligently, and (2)
some extraordinary circumstances stood in his way. Ramirez v. Yates, 571 F.3d 993,
997 (9th Cir. 2009).
Greene first asserts that extraordinary circumstances exist because the district
court in Nevens II erroneously dismissed his timely filed amended habeas petition for
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failing to comply with the order dated December 13, 2006 (“December 13 Order”),
which required him to state all of his claims within the body of a habeas petition form,
rather than asserting additional claims in an attached memorandum. The
memorandum attached to Greene’s amended petition form did not comply with the
court’s instruction because the claims contained in the memorandum, unlike the
claims asserted in the form itself, were not verified under penalty of perjury.
Notwithstanding Greene’s alleged “misunderstanding” of the December 13 Order, it
was not beyond his control to have complied with it. See Ford v. Pliler, 590 F.3d 782,
789 (9th Cir. 2009) (holding that a “petitioner’s misunderstanding of accurate
information cannot merit relief”). Therefore, the December 13 Order dismissing
Greene’s amended petition in Nevens II is not an extraordinary circumstance justifying
equitable tolling.
Greene argues that the order of the district court in Nevens II dated January 11,
2007 (“January 11 Order”) was affirmatively misleading and thus an extraordinary
circumstance justifying equitable tolling. He asserts first that the Order was
misleading because it imposed a dismissal “without prejudice” after the one-year
AEDPA limitations period had expired. This argument is unavailing and was squarely
rejected by this Court in Ford. Id. at 788-89. He next contends that the language in
the January 11 Order which directed him to file a new petition in a new action with
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a new application to proceed in forma pauperis was affirmatively misleading because
the statute of limitations had expired. However, the January 11 Order did not direct
Greene to take any action whatsoever. It simply notified the parties that dismissal of
the petition was “without prejudice to the filing of a new petition in a new action with
a new application to proceed in forma pauperis.” Because there was no affirmative
misstatement, Greene was not affirmatively misled. See id. at 788.
Greene maintains that numerous hurdles he encountered in attempting to secure
habeas relief proceeding pro se could have been avoided if he had he been afforded
counsel. He does not identify any particular circumstance, other than the general
denial of counsel, that would constitute an exceptional circumstance. The absence of
counsel, without more, is not an exceptional circumstance warranting equitable
tolling. Miranda v. Castro, 292 F.3d 1063, 1068 (9th Cir. 2002).
Finally, Greene argues that his lack of access to state court transcripts justifies
both equitable tolling and statutory tolling pursuant to 28 U.S.C. § 2244(d)(1)(B).
Because all of the issues raised in his untimely habeas petition were raised in his prior
timely filed habeas petitions, Greene’s inability to obtain state court transcripts did not
cause the untimeliness of his petition. See Ford, 590 F.3d at 790 (“[Petitioner’s]
alleged inability to access [his legal files] cannot be ‘the cause of his untimeliness’
since he did not need the legal materials they contained to file a timely habeas
4
petition.” (quoting Bryant v. Ariz. Atty. Gen., 499 F.3d 1056, 1061 (9th Cir. 2007))).
Because equitable tolling does not apply, statutory tolling under 28 U.S.C. §
2244(d)(1)(B) is precluded. Roy v. Lampert, 465 F.3d 964, 972 n.3 (9th Cir. 2006).
Finding no extraordinary circumstances warranting equitable tolling, we need
not determine whether Greene demonstrated diligence in filing his untimely petition.
JUDGMENT AFFIRMED.
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