NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEPTEMBER 16
2014
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FERDINANDO L. ROBINSON, No. 12-17279
Petitioner - Appellant, D.C. No. 2:11-cv-01748-KJD-PAL
v.
MEMORANDUM*
D. W. NEVEN; ATTORNEY GENERAL
OF THE STATE OF NEVADA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted September 10, 2014**
San Francisco, California
Before: SCHROEDER, OWENS, and FRIEDLAND, Circuit Judges.
Ferdinando L. Robinson appeals from a judgment by the District of Nevada
dismissing his federal habeas corpus petition as untimely under 28 U.S.C. § 2244(d).
*
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).
We agree with the district court that Robinson has not demonstrated eligibility for
equitable tolling, so we affirm.
The district court’s decision to dismiss a § 2254 habeas petition as untimely is
reviewed de novo. Nedds v. Calderon, 678 F.3d 777, 780 (9th Cir. 2012). The
district court’s decision not to order an evidentiary hearing is reviewed for abuse of
discretion. Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006).
Robinson argues that, because of alleged attorney negligence, he is entitled to
equitable tolling for a period of 145 days prior to the filing of his state habeas corpus
petition, or, in the alternative, that he is entitled to an evidentiary hearing on the issue
of equitable tolling. A habeas petitioner is entitled to equitable tolling “only if he
shows ‘(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way’ and prevented timely filing.”
Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005)). The petitioner bears the burden of showing that equitable
tolling should apply. Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th
Cir. 2005). A habeas petitioner is entitled to an evidentiary hearing when the
petitioner “makes a good-faith allegation that would, if true, entitle him to equitable
tolling.” Roy, 465 F.3d at 969 (emphasis, citation, and internal quotation marks
omitted).
2
Robinson’s allegations of attorney misconduct do not rise to the level of
extraordinary circumstances. See Holland, 560 U.S. at 652 (holding that “a ‘garden
variety claim’ of attorney negligence” does not justify equitable tolling); Miranda v.
Castro, 292 F.3d 1063, 1067-68 (9th Cir. 2002) (holding that prisoners have no right
to counsel for habeas proceedings, and consequently no right to advice or
information about the habeas process from trial or direct review counsel). Nor has
Robinson met his burden of showing that he demonstrated diligence throughout the
limitations period. Additionally, because Robinson has not alleged facts that would
entitle him to equitable tolling, it was not an abuse of discretion for the district court
to decline to order an evidentiary hearing.
Because Robinson does not qualify for equitable tolling on the basis of attorney
misconduct, his petition would be untimely regardless of the resolution of the other
issues he raises in favor of tolling. We therefore decline to reach those issues.
For the foregoing reasons, we AFFIRM.
3