FILED
NOT FOR PUBLICATION JUN 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GARY SHEPARD, ) No. 10-15473
)
Petitioner – Appellant, ) D.C. No. 3:06-cv-00688-RCJ-VPC
)
v. ) MEMORANDUM *
)
RENEE BAKER; ATTORNEY )
GENERAL OF THE STATE OF )
NEVADA; BILL DONAT, )
)
Respondents – Appellees. )
)
)
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Submitted June 11, 2012 **
San Francisco, California
Before: FERNANDEZ, GOULD, and BEA, Circuit Judges.
Gary Shepard appeals the district court’s dismissal of his petition for writ of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
habeas corpus. See 28 U.S.C. § 2254. We affirm.
Shepard asserts that the district court erred when it determined that his
petition was barred by the statute of limitations. See 28 U.S.C. § 2244(d)(1)(A).
He agrees that absent equitable tolling the time to file his petition expired on
March 23, 2007, and he did not file the operative petition (actually his first
amended petition) until January 16, 2008. Nevertheless, he claims that equitable
tolling applies here. The district court disagreed, as do we.
Certainly, a state prisoner is entitled to equitable tolling when he was
diligently pursuing his rights, but some extraordinary circumstance prevented his
timely filing. See Holland v. Florida, __ U.S. __, __, 130 S. Ct. 2549, 2562, 177 L.
Ed. 2d 130 (2010); Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). Shepard
asserts that he proceeded reasonably diligently, and that his attorney abandoned
him. Were that so, he might have established his claims. See Holland, __ U.S. at
__, 130 S. Ct. at 2565; Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011). We
have reviewed the record and are unable to say that the district court clearly erred
in determining that the asthenic evidence in the record did not suffice to show
abandonment or diligence. See Spitsyn, 345 F.3d at 799.
Then, argues Shepard, he should have been accorded an evidentiary hearing
so that he could further develop his claims. But the district court did not abuse its
2
discretion when it declined to order an evidentiary hearing in this case. See Roy v.
Lampert, 465 F.3d 964, 968 (9th Cir. 2006). In fact, the district court gave him an
opportunity to file further declarations to support his position; he did so, but did
not effectively buttress it. The record was sufficiently developed 1 to show that
Shepard’s attorney had not actually abandoned him,2 and was also sufficient to
show that Shepard had not used reasonable diligence.3 Thus, the district court did
not err. Because of that, there is no need to consider Shepard’s claims regarding
relation back of his second amended petition and exhaustion of state remedies.
AFFIRMED.
1
The mere fact that he filed a declaration did not guarantee him an
evidentiary hearing. See Roberts v. Marshall, 627 F.3d 768, 772–73 (9th Cir.
2010), cert. denied, 132 S. Ct. 286, 181 L. Ed. 2d 171 (2011); Laws v. Lamarque,
351 F.3d 919, 924 (9th Cir. 2003); Buffalo v. Sunn, 854 F.2d 1158, 1165 (9th Cir.
1988).
2
See Doe, 661 F.3d at 1011–12; see also Holland, __ U.S. at __, 130 S. Ct. at
2564.
3
See Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1013–14 (9th Cir. 2009)
(legal material access); United States v. Battles, 362 F.3d 1195, 1197–98 (9th Cir.
2004) (attorney withheld files); Spitsyn, 345 F.3d at 801 (same).
3