Trung Phan v. Matthew Cate

Good Law
584 F. App'x 841
United States Court of Appeals for the Ninth CircuitSeptember 30, 201413-15911California274 words

Opinion

Opinion

MEMORANDUM

California state prisoner Trung Quang Phan appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction under 28 U.S.C. § 2253 . We review de novo a district court’s dismissal of a federal habeas petition on statute of limitations grounds, and the denial of an evidentiary hearing for abuse of discretion. See Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir.2006). We affirm.

Phan, whose native language is Vietnamese, contends that he is entitled to equitable tolling because of his lack of English proficiency, the absence of Vietnamese language legal materials in the prison, and his inability to obtain assistance to file a federal habeas petition until 2010. This contention fails because Phan has not shown that he diligently attempted to procure either legal materials in Vietnamese or assistance in filing his federal habeas petition. See Holland v. Florida, 560 U.S. 631, 649 , 130 S.Ct. 2549 , 177 L.Ed.2d 130 (2010) (to be entitled to equitable tolling, a petitioner must demonstrate diligence); Mendoza, 449 F.3d at 1070 (discussing showing a non-English speaker must make to qualify for equitable tolling).

Phan also…

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