Ferdinando Robinson v. D. Neven

MEMORANDUM

Ferdinando L. Robinson 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 Robinson has not demonstrated eligibility for equitable tolling, so we affirm.

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

Robinson argues that, because of alleged attorney negligence, he is entitled to equitable tolling for a period of 145 days prior to the filing of his state habeas corpus petition, or, in the alternative, that he is entitled to an evidentiary hearing on the issue of equitable tolling. A habeas petitioner is entitled to equitable tolling “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 filing.” Holland v. Florida, 560 U.S. 631, 649 , 130 S.Ct. 2549 , 177 L.Ed.2d 130 (2010) (quoting Pace v.…