NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 23 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL EUGENE TRAVERSO, No. 15-16605
Petitioner-Appellant, D.C. No.
2:13-cv-00224-DLR
v.
CHARLES L. RYAN, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Submitted May 15, 2017**
San Francisco, California
Before: McKEOWN and MURGUIA, Circuit Judges, and RUFE,*** District Judge.
Petitioner Michael Eugene Traverso appeals the district court’s dismissal of
his habeas petition as time-barred. This Court granted Traverso’s request for a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Cynthia M. Rufe, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
certificate of appealability on the following question: “whether the district court
correctly determined that appellant’s 28 U.S.C. § 2254 petition is not entitled to
equitable tolling of the AEDPA statute of limitations.” We have jurisdiction
pursuant to 28 U.S.C. § 1291 and § 2253, and we affirm.
1. Under the Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”), we review de novo whether equitable tolling is warranted. Fue v.
Biter, 842 F.3d 650, 653 (9th Cir. 2016) (en banc). “Otherwise, findings of fact
made by the district court are to be reviewed for clear error.” Spitsyn v. Moore, 345
F.3d 796, 799 (9th Cir. 2003) (citation omitted).
A petitioner seeking equitable tolling of the one-year AEDPA limitations
period 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)). A petitioner must also “show that the ‘extraordinary
circumstances’ were the cause of his untimeliness.” Spitsyn, 345 F.3d at 799
(citation omitted).
2. The parties do not dispute that Traverso’s counseled habeas petition
was filed after the one-year AEDPA deadline. Traverso argues that the severe
impairments of an independent contractor employed by his attorney (whose duties
included calculating the filing deadline) justify equitable tolling.
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3. The district court properly concluded that equitable tolling was
unwarranted because the deadline miscalculation was a garden-variety act of
negligence. (citing Lawrence v. Florida, 549 U.S. 327, 336-37 (2007); United
States v. Aguirre-Ganceda, 592 F.3d 1043, 1046 (9th Cir. 2010)). Traverso’s
attorney, who was responsible for reviewing the work of the independent
contractor, bears responsibility for the error, and Traverso is bound by his
attorney’s deadline miscalculation. See Holland, 560 U.S. at 651-52; Model Rules
of Prof’l Conduct R. 5.5 cmt. 2 (2002).
AFFIRMED.
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