FILED
NOT FOR PUBLICATION MAR 14 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM WOLFE, No. 11-35229
Petitioner - Appellant, D.C. No. 1:09-cv-00533-REB
v.
MEMORANDUM*
JOHANNA SMITH, Warden, ISCI,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Idaho
Ronald E. Bush, Magistrate Judge, Presiding
Submitted March 9, 2012**
Portland, Oregon
Before: W. FLETCHER, FISHER, and BYBEE, Circuit Judges.
William Wolfe appeals the district court’s dismissal of his 28 U.S.C. § 2254
petition. We have jurisdiction under 28 U.S.C. § 1291 and § 2253, and we affirm.
Wolfe’s federal habeas petition was due in April of 1997 under the one-year
*
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).
“grace period” after the enactment of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”). Patterson v. Stewart, 251 F.3d 1243, 1245–46
(9th Cir. 2001). He did not file this action until 2009. Wolfe argues that his petition
should be considered timely under the doctrines of equitable estoppel and equitable
tolling because the state withheld his legal materials from him until May of 1997.1
We review de novo. Bills v. Clark, 628 F.3d 1092, 1096 (9th Cir. 2010).
Even assuming that withholding Wolfe’s legal materials from him
constituted affirmative misconduct or an extraordinary circumstance beyond
Wolfe’s control, the state’s misconduct tolled the statute of limitations only as long
as that conduct endured. NLRB v. Don Burgess Constr. Corp., 596 F.2d 378, 383
(9th Cir. 1979) (“[F]raudulent concealment tolls a statute of limitations only for as
long as the concealment endures.”); see also Pace v. DiGuglielmo, 544 U.S. 408,
419 (2005) (“Under long-established principles, petitioner’s lack of diligence
precludes equity’s operation.”).
Wolfe also argues that the state engaged in continuing misconduct sufficient
to toll the statute for the entire period because prison employees told him at least
three times that the deadline for filing his petition had expired, without mentioning
the doctrines of equitable tolling or estoppel. However, the state cannot be faulted
1
In Holland v. Florida, 130 S. Ct. 2549, 2562 (2010), the Supreme Court
held that equitable tolling is available in AEDPA cases.
for failing to inform Wolfe of the existence of legal arguments that hypothetically
could have helped him; the burden of due diligence was on Wolfe. When Wolfe
turned over his materials to a prison law clerk, it did not relieve him of his
“personal responsibility of complying with the law.” Chaffer v. Prosper, 592 F.3d
1046, 1049 (9th Cir. 2010) (internal quotation marks omitted).
AFFIRMED.