Lawrence Schwiger v. Jack Palmer

MEMORANDUM

Lawrence Schwiger appeals the dismissal of his 28 U.S.C. § 2254 habeas corpus petition. Dismissal of a habeas petition on timeliness grounds is reviewed de novo, Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir.2010), as is equitable tolling where the facts are undisputed, Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003). We have jurisdiction pursuant to 28 U.S.C. § 2253 , and affirm.

As counsel acknowledged during argument, Schwiger’s claim that the district judge should have affirmatively advised him to file a new petition is foreclosed by Pliler v. Ford, 542 U.S. 225, 231 , 124 S.Ct. 2441 , 159 L.Ed.2d 338 (2004) (“Requiring district courts to advise a pro se litigant in such a manner would undermine district judges’ role as impartial decisionmakers.”).

We expand the certifícate of appealability to include the issue of whether equitable tolling is warranted on the grounds that the district court affirmatively misled Schwiger. Under the circumstances presented here, Schwiger was not misled and no “extraordinary circumstance stood in his way” to prevent timely filing. Holland v. Florida, 560 U.S. 631, 649 , 130 S.Ct. 2549 , 177 L.Ed.2d 130 (2010) (quoting Pace v.…