United States v. Ruben Avila

                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 16 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 10-17761

               Plaintiff - Appellee,              D.C. Nos.    2:10-cv-01334-GEB
                                                               2:06-cr-00049-GEB
  v.

RUBEN GONZALEZ AVILA,                             MEMORANDUM *

               Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Eastern District of California
                   Garland E. Burrell, Jr., District Judge, Presiding

                            Submitted January 15, 2013 **

Before:        SILVERMAN, BEA, and NGUYEN, Circuit Judges.

       Federal prisoner Ruben Gonzalez Avila appeals pro se from the district

court’s order dismissing his motion under 28 U.S.C. § 2255 as untimely. We have

jurisdiction under 28 U.S.C. § 2253, and we affirm.




          *
             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).
      Gonzalez Avila contends that he is entitled to equitable tolling because his

trial counsel incorrectly advised him about when the limitations period began to

run. We review the dismissal of a section 2255 motion on timeliness grounds de

novo. See United States v. Buckles, 647 F.3d 883, 887 (9th Cir. 2011). We also

review a request for equitable tolling de novo. See United States v. Aguirre-

Ganceda, 592 F.3d 1043, 1045 (9th Cir. 2011). Gonzalez Avila is not entitled to

equitable tolling because he has not shown that his attorney’s conduct was so

egregious as to constitute an “extraordinary circumstance” that prevented him from

filing a timely section 2255 motion. See Holland v. Florida, 130 S. Ct. 2549, 2564

(2010); Aguirre-Ganceda, 592 F.3d at 1046 (“Extraordinary circumstances do not

include a lawyer’s miscalculation of a limitation period.”).

      We construe Gonzalez Avila’s additional arguments as a motion to expand

the certificate of appealability. So construed, the motion is denied. See 9th Cir. R.

22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).

      AFFIRMED.




                                          2                                     10-17761