FILED
NOT FOR PUBLICATION OCT 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TERRANCE JAMES BURKE, No. 08-16187
Petitioner - Appellant, D.C. No. 2:06-cv-00459-FCD
v. MEMORANDUM *
MICHAEL MARTEL,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, District Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
California state prisoner Terrance James Burke appeals from the district
court’s judgment dismissing his 28 U.S.C. § 2254 petition as untimely. We have
jurisdiction under 28 U.S.C. § 2253(a), 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).
Burke contends that he was entitled to equitable tolling due to his reliance on
Dictado v. Ducharme, 244 F.3d 724, 726, 727-28 (9th Cir. 2001), abrogated by
Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005). In the alternative, Burke seeks an
evidentiary hearing on his claim to equitable tolling.
Reliance on circuit precedent subsequently overruled by the Supreme Court
can constitute an extraordinary circumstance that may warrant equitable tolling.
See Harris v. Carter, 515 F.3d 1051, 1054, 1057 (9th Cir. 2008); see also
Townsend v. Knowles, 562 F.3d 1200, 1205-06 (9th Cir. 2009). In order to
establish entitlement to such tolling, however, Burke must show that he was
diligent in pursuing post-conviction relief. See Holland v. Florida, — U.S. —, 130
S. Ct. 2549, 2562 (2010).
Burke contends that he was diligent in pursuing his state post-conviction
remedies, given personal and health problems, as well as constraints on his law
library access. Accepting as true that Burke in fact relied on Dictado, and crediting
the veracity of his explanations for delays in filing each of his three state habeas
petitions, Burke nonetheless fails to demonstrate the requisite diligence. In
particular, Burke fails to account for periods of time during which he was
unimpeded by the burdens that he cites as justifying the lengthy delays between
filings. The district court did not abuse its discretion in denying an evidentiary
2 08-16187
hearing on the tolling question, as the facts, even if established as true, do not
demonstrate the necessary diligence. Cf. Harris, 515 F.3d at 1052-54; Townsend,
562 F.3d at 1203.
Absent equitable tolling, Burke’s federal habeas petition was filed two years
and nine months beyond the AEDPA deadline. Accordingly, the district court’s
judgment dismissing his petition as untimely was correct.
We construe Burke’s additional contentions with respect to Thorson v.
Palmer, 479 F.3d 643 (9th Cir. 2007), and In re Robbins, 18 Cal. 4th 770 (Cal.
1998), as a motion to expand the certificate of appealability, and we deny the
motion. See Newdow v. Lefevre, 598 F.3d 638, 644 (9th Cir. 2010).
AFFIRMED.
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