NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELLEY KELLER, No. 18-55700
Petitioner-Appellant, D.C. No.
2:16-cv-09197-AG-SP
v.
CHRISTIAN PFEIFFER, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted August 10, 2020
Pasadena, California
Before: CALLAHAN and BUMATAY, Circuit Judges, and M. WATSON,**
District Judge.
Kelly Keller appeals from the district court’s dismissal of his federal habeas
appeal as untimely under the one-year time limit in the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244. The district
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael H. Watson, United States District Judge for
the Southern District of Ohio, sitting by designation.
court ruled that although Keller was entitled to “gap tolling” for the periods of time
between the filings of his post-conviction petitions in the California courts, he was
not entitled to equitable tolling for the passage of time after the California Supreme
Court denied his post-conviction petition. We affirm.
We review de novo the dismissal of a habeas petition as untimely, and
review findings of fact made by the district court for clear error. Stewart v. Cate,
757 F.3d 929, 934 (9th Cir. 2014); Ramirez v. Yates, 571 F.3d 993, 997 (9th Cir.
2009). We review a district court’s determination not to hold an evidentiary
hearing for abuse of discretion. Stewart, 757 F.3d at 934.
The Supreme Court has held that AEDPA’s statutory limitation periods may
be tolled for equitable reasons. Holland v. Florida, 560 U.S. 631, 645 (2010).
“Generally, a litigant seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005). We recently explained that these are two distinct requirements. Smith
v. Davis, 953 F.3d 582, 591 (9th Cir. 2020) (en banc) (“[I]f an extraordinary
circumstance is not the cause of a litigant’s untimely filing, then there is nothing
for equity to address.”). In Smith, we disapproved of an application for equitable
tolling “where a litigant has not diligently pursued his rights before, during, and
after the existence of an extraordinary circumstance.” Id. at 598. We explained
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that a litigant “must show that he has been reasonably diligent in pursuing his
rights not only while an impediment to filing caused by an extraordinary
circumstance existed, but before and after as well, up to the time of filing his claim
in federal court.” Id. at 598-99.
Here, the district court first granted Keller “gap tolling” for the periods of
time between the filings of his post-conviction petitions in the California courts,
without which AEDPA’s time limitation would have run before Keller filed his
post-conviction petition with the California Supreme Court. The district court also
recognized that the days it took for the California Supreme Court’s decision to
reach Keller made it impossible for him to file a timely federal habeas petition.
However, it reasoned that “[t]he Petition was late because petitioner waited over a
year following the California Supreme Court’s denial of his petition for review on
August 27, 2014 before he constructively filed his first state habeas petition in the
Superior Court on November 24, 2015, the day before the AEDPA limitation
period expired.” The district court determined that “[i]t is during that earlier time,
while the AEDPA limitation period was running, that petitioner needs equitable
tolling in order for [the] instant Petition to be timely, but petitioner has failed to
show . . . extraordinary circumstances during that period prevented him from
timely filing.”
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On this record, Keller has not shown that the district court clearly erred in
determining that he did not act diligently. The district court considered Keller’s
actions during the relevant time period, November 2014 to November 2015. It
noted that Keller waited two years before requesting additional records, waited six
months before filing his state habeas petition, and filed all of his petitions without
the additional records he sought. In light of the district court’s careful
consideration of Keller’s actions, Keller has not shown either that the district court
erred in dismissing his federal habeas petition as untimely or that the district court
abused its discretion in declining to hold an evidentiary hearing.
The district court’s order of dismissal is AFFIRMED.
4