Kevin Davis v. Palmer

MEMORANDUM

Kevin Scott Davis appeals from a judgment by the District of Nevada dismissing his federal habeas corpus petition as untimely under 28 U.S.C. § 2244 (d). We agree with the district court that Davis has not demonstrated eligibility for equitable tolling, so we affirm.

We review de novo the district court’s decision to dismiss a § 2254 habeas petition as untimely. Nedds v. Calderon, 678 F.3d 777, 780 (9th Cir.2012). We review the district court’s decision not to order an evidentiary hearing for abuse of discretion. Roy v. Lampert, 465 F.3d 964, 968 (9th Cir.2006).

Davis argues that he is entitled to at least 100 days of equitable tolling based on a combination of attorney negligence, lack of library access, and the state court’s delay in resolving his motion to withdraw the guilty plea. None of these grounds qualify for equitable tolling because none prevented Davis from timely filing his federal habeas petition.

A federal habeas petitioner is entitled to equitable tolling of AEDPA’s 1-year statute of limitations “only if he shows ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely…