FILED
NOT FOR PUBLICATION
OCT 17 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY BERNARD SMITH, Jr., No. 17-15874
Petitioner-Appellant, D.C. No. 2:15-cv-01785-JAM-AC
v.
MEMORANDUM*
RON DAVIS,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted October 9, 2018
San Francisco, California
Before: D.W. NELSON, W. FLETCHER, and BYBEE, Circuit Judges.
Anthony Smith appeals the district court’s order dismissing his petition for writ
of habeas corpus. We have jurisdiction under 28 U.S.C. §§ 1291, 2253. We review
the district court’s order de novo. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.
2003). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Smith filed his habeas petition on August 14, 2015, approximately twelve
months after he received his appellate record from his attorney and fourteen months
after his state conviction became final. The magistrate judge issued findings and a
recommendation that Smith’s petition be dismissed. The district court dismissed
Smith’s petition as untimely.
Smith argues that he was entitled to equitable tolling for the two months during
which his appellate attorney improperly retained his records. A habeas petitioner
seeking equitable tolling must show “‘(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)). “Courts may . . . consider a petitioner’s
diligence, after an extraordinary circumstance has been lifted, as one factor in a
broader diligence assessment” to “ensure that the extraordinary circumstance faced
by petitioners . . . cause[d] [] the tardiness of their federal habeas petitions.” Gibbs
v. Legrand, 767 F.3d 879, 892 (9th Cir. 2014) (citations and quotations omitted). We
are willing to assume that the failure of Smith’s counsel to provide his records was an
extraordinary circumstance. But when Smith received his records, he had ten months
left in which to file his federal petition. Smith did not explain why the two-month
deprivation of his records caused his untimely filing. A review of his petition reveals
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that it is essentially a verbatim copy of his previous state filings. Under these
circumstances, the district court was correct to conclude that Smith had not established
(1) that the deprivation of his appellate record caused his untimely filing or (2) that
he diligently used the ten months of the limitations period that remained after
receiving his records.
AFFIRMED.
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