FILED
NOT FOR PUBLICATION FEB 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JEMAIN HUNTER, No. 07-17202
Petitioner - Appellant, D.C. No. CV-05-01300-OWW
v.
MEMORANDUM *
GEORGE GALAZA,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, District Judge, Presiding
Submitted February 8, 2010 **
San Francisco, California
Before: O’SCANNLAIN, TROTT and PAEZ, Circuit Judges.
Jemain Hunter appeals the district court’s order dismissing as untimely his
habeas petition filed pursuant to 28 U.S.C. § 2254. Hunter argues he is entitled to
*
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).
equitable tolling of the statute of limitation. We review de novo, Spitsyn v. Moore,
345 F.3d 796, 799 (9th Cir. 2003), and we affirm.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
contains a one-year statute of limitation for habeas petitions. 28 U.S.C. §
2244(d)(1). The statute began to run on September 21, 2004, 90 days after the
California Supreme Court denied Hunter’s petition for review, when the time for
petitioning for a writ of certiorari expired. 28 U.S.C. § 2244(d)(1)(A). Hunter’s
federal petition was thus due September 21, 2005. He filed the petition 16 days
late, on October 7, 2005.
Equitable tolling “is unavailable in most cases,” and “the threshold
necessary to trigger equitable tolling under AEDPA is very high, lest the
exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.
2002) (internal quotations omitted). 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.” Lawrence v. Florida, 549 U.S. 327, 336 (2007) (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). Although an attorney’s behavior can
establish the extraordinary circumstances required for equitable tolling, mere
negligence or professional malpractice is insufficient. Frye v. Hickman, 273 F.3d
2
1144, 1146 (9th Cir. 2001). Rather, the attorney must have committed “egregious
misconduct.” Shannon v. Newland, 410 F.3d 1083, 1090 (9th Cir. 2005).
Hunter’s counsel on direct appeal failed to inform Hunter when the
California Supreme Court denied his petition for review. He also moved his office
without notifying Hunter, making it difficult for Hunter to contact him. This
behavior, although negligent, does not rise to the level of egregious misconduct
required under this court’s precedent.1 Cf. Spitsyn, 345 F.3d at 801 (allowing
equitable tolling where petitioner’s counsel was hired almost a year in advance,
failed to do anything to prepare the petition or to respond to numerous letters and
phone calls, and withheld petitioner’s file for over two months after the limitations
period expired). The district court properly dismissed Hunter’s habeas petition as
untimely.
AFFIRMED.
1
We note that the United States Supreme Court has granted a petition for
certiorari in Holland v. Florida, 539 F.3d 1334 (11th Cir. 2008), cert. granted, 130
S. Ct. 398 (2009). In Holland, the petitioner’s attorney failed to notify his client of
a state court disposition in his case. Assuming that the attorney’s conduct was
“grossly negligent,” the Eleventh Circuit declined to apply equitable tolling
because the petitioner had made no allegation of “bad faith, dishonesty, divided
loyalty, mental impairment or so forth on the lawyer’s part.” Id. at 1339.
3