FILED
NOT FOR PUBLICATION
AUG 29 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUE SENG THAO, No. 15-17400
Petitioner-Appellant, D.C. No.
2:14-cv-01791-WBS-KJN
v.
CLARK E. DUCART, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Submitted August 15, 2017**
San Francisco, California
Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and EZRA,***
District Judge.
California state prisoner Lue Seng Thao (Thao) appeals the district court’s
*
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 David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
dismissal of his petition for a writ of habeas corpus as untimely. Specifically, Thao
contends that he is entitled to equitable tolling. Thao maintains that his lack of
access to legal materials in the month prior to the deadline for filing his federal
petition constituted an extraordinary circumstance making it impossible for him to
file the petition in a timely manner. Alternatively, Thao argues that this matter
should be remanded to the district court for an evidentiary hearing on his equitable
tolling claim. We affirm the district court’s denial of Thao’s habeas petition and
deny Thao’s request for remand.
As an initial matter, we conclude that Thao’s appeal is timely. The
Magistrate Judge ordered Thao to file his notice of appeal “on or before November
28, 2015.” Although the notice was not filed in the district court until December 2,
2015, the filing date of the Notice of Appeal should be calculated pursuant to the
“mailbox rule,” and therefore deemed timely, because the attached Proof of Service
confirms that Thao delivered the Notice of Appeal to the prison mail system on
November 27, 2015. See Davis v. Woodford, 446 F.3d 957, 960 (9th Cir. 2006).
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a
petitioner is required to file his petition within one year of the conclusion of direct
review by the state. See 28 U.S.C. § 2244(d). However, the limitations period may
be equitably tolled if a petitioner establishes: “(1) that he has been pursuing his
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rights diligently, and (2) that some extraordinary circumstance stood in his way.”
Okafor v. United States, 846 F.3d 337, 340 (9th Cir. 2017) (citation omitted).
Thao does not dispute that he filed his habeas petition approximately thirteen
days late. See Fue v. Biter, 842 F.3d 650, 654 (9th Cir. 2016) (en banc) (requiring
reasonable diligence). Thao was misinformed by his post-conviction counsel that
the deadline for filing his federal habeas petition was July 19, 2014. The parties
agree that the actual deadline for filing Thao’s habeas petition was July 9, 2014.
However, the misinformation regarding Thao’s filing deadline does not
constitute an extraordinary circumstance because “a garden variety claim of
excusable neglect, such as a simple miscalculation that leads a lawyer to miss a
filing deadline, does not warrant equitable tolling.” Kwai Fun Wong v. Beebe, 732
F.3d 1030, 1052 (9th Cir. 2013) (en banc) (citation omitted), aff’d and remanded
on other grounds sub nom. United States v. Kwai Fun Wong, 135 S. Ct. 1625,
1630, 1638 (2015). In any event, Thao did not even meet the erroneous deadline
provided to him by his attorney.
Additionally, we have held that normal delays or restrictions on law library
access—such as stays in administrative segregation—are not considered
“extraordinary” for purposes of establishing equitable tolling under AEDPA.
Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009). Unlike the petitioner in Sossa
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v. Diaz, 729 F.3d 1225, 1227-28, 1235-37 (9th Cir. 2013), who alleged that he was
unable to access the library for the majority of the three-month period he had to file
his amended habeas petition, Thao had an entire year to prepare his habeas
petition, and only asserted an inability to access the law library for the month
preceding the due date of his petition. Neither does a pro se petitioner’s “lack of
legal sophistication,” alone, constitute “an extraordinary circumstance warranting
equitable tolling.” Ford v. Pliler, 590 F.3d 782, 789 (9th Cir. 2009) (citation
omitted).
Remand to the district court for the purpose of conducting an evidentiary
hearing is not warranted in this case. “Generally, in this Circuit, a habeas petitioner
should receive an evidentiary hearing when he makes a good-faith allegation that
would, if true, entitle him to equitable tolling.” Stewart v. Cate, 757 F.3d 929, 941
(9th Cir. 2014) (citation and internal quotation marks omitted), as amended.
Because Thao’s alleged circumstances, even if accepted as true, do not rise to the
level of extraordinary circumstances, see Ramirez, 571 F.3d at 998, remand for an
evidentiary hearing is unnecessary. See Stewart, 757 F.3d at 941.
AFFIRMED.
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