United States v. Herman Lemusu

MEMORANDUM

Herman Lemusu appeals pro se from the district court’s orders denying his 28 U.S.C. § 2255 motion as untimely and his subsequent motion for reconsideration. We have jurisdiction under 28 U.S.C. § 2253 , and we affirm.

Lemusu contends that he is entitled to equitable tolling because he was placed in administrative segregation, relied on inadequate legal assistance from a fellow inmate, and was misled by the district court’s affirmative misrepresentations. We review the district court’s equitable tolling decision de novo. See United States v. Battles, 362 F.3d 1195, 1196 (9th Cir.2004). Lemusu’s claim to equitable tolling fails because he has not established that the alleged impediments were “extraordinary circumstances” that prevented timely filing of his section 2255 motion. See Pace v. DiGuglielmo, 544 U.S. 408, 418 , 125 S.Ct. 1807 , 161 L.Ed.2d 669 (2005) (equitable tolling available where the petitioner shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way”).

Lemusu contends that his actual innocence excuses his untimely filing. Assuming this argument is properly before the court, it fails…