James Daly v. W. Knipp

MEMORANDUM

James E. Daly appeals from an order by the Northern District of California dismissing his federal habeas corpus petition as untimely under 28 U.S.C. § 2244 (d). We agree with the district court that Daly has not demonstrated that he is entitled to 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).

Absent equitable tolling, Daly’s petition was 197 days late. 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. DiGuglielmo, 544 U.S. 408, 418 , 125 S.Ct. 1807 , 161 L.Ed.2d 669 (2005)). The petitioner bears the burden of showing that equitable tolling should apply. Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir.2005).…