Eric Sanford v. J. Soto

MEMORANDUM

Eric Sanford filed a federal habeas petition on July 10, 2012, five days after the one-year filing period afforded to him under 28 U.S.C. § 2244 (d) expired. Accordingly, the district court dismissed his habe-as petition as untimely. Sanford appealed, arguing that he is entitled to equitable tolling of the limitations period due to the misconduct of his attorney and his mental incompetency. We have jurisdiction under 28 U.S.C. § 2253 , and we affirm.

First, Sanford has not shown that any misconduct on the part of his attorney was an “ ‘extraordinary circumstance [that] 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)). Though there was a delay in receiving his record on direct appeal from his attorney, Sanford had all the materials necessary to file a federal habeas petition with seven months remaining in his one-year filing period. Moreover, Sanford has not demonstrated that he “pursu[ed] his rights diligently” during that seven-month period. Id. (quoting Pace, 544 U.S. at 418 , 125 S.Ct. 1807 ). It…