NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 10 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FREDYS A. MARTINEZ, No. 13-15537
Petitioner - Appellant, D.C. No. 3:10-cv-00777-LRH-
VPC
v.
JACK PALMER; NEVADA ATTORNEY MEMORANDUM*
GENERAL,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted December 9, 2014
San Francisco, California
Before: KOZINSKI, RAWLINSON, and MURGUIA, Circuit Judges.
Petitioner Fredys A. Martinez (Martinez) challenges the district court’s
dismissal of his untimely federal habeas petition pursuant to the statute of
limitations set forth in the Antiterrorism and Effective Death Penalty Act
(AEDPA). Martinez contends that he was entitled to equitable tolling because the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
prison failed to provide him with Spanish-language resources and he was unable to
timely obtain his files from his appellate counsel.
The district court permissibly held that equitable tolling based on
Martinez’s lack of English proficiency was unwarranted because Martinez was
able to obtain English translations during the AEDPA statute of limitations period.
See Yeh v. Martel, 751 F.3d 1075, 1078 (9th Cir. 2014) (denying equitable tolling
because the petitioner received translation assistance during the limitations period).
Martinez did not satisfy his burden of demonstrating that it was impossible
for him to timely file his federal habeas petition due to the library paging system or
his administrative segregation.
Even assuming that Martinez did not receive his files from his appellate
counsel until January, 2010, Martinez did not act with reasonable diligence by
delaying the filing of his federal habeas petition until seven months after he filed
his state habeas petition. See id. at 1079 (holding that the petitioner’s pattern of
delay reflected a lack of reasonable diligence).1
1
Martinez alleges that his appellate counsel denied Martinez access to his
legal file for the entire limitations period. We do not condone this alleged conduct,
which is likely a violation of the Nevada professional rules of conduct. See Gibbs
v. LeGrand, 767 F.3d 879, 889 (9th Cir. 2014). However, to qualify for equitable
tolling, Martinez must establish both an extraordinary circumstance and reasonable
diligence. See id. at 889-90.
2
The district court did not abuse its discretion in denying an evidentiary
hearing because the record was sufficiently developed to resolve Martinez’s
equitable tolling claim. See Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir.
2010).
AFFIRMED.
3