Hunter

MEMORANDUM

Jemain Hunter appeals the district court’s order dismissing as untimely his habeas petition filed pursuant to 28 U.S.C. § 2254 . Hunter argues he is entitled to equitable tolling of the statute of limita tion. We review de novo, Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003), and we affirm.

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) contains a one-year statute of limitation for habeas petitions. 28 U.S.C. § 2244 (d)(1). The statute began to run on September 21, 2004, 90 days after the California Supreme Court denied Hunter’s petition for review, when the time for petitioning for a writ of certiorari expired. 28 U.S.C. § 2244 (d)(1)(A). Hunter’s federal petition was thus due September 21, 2005. He filed the petition 16 days late, on October 7, 2005.

Equitable tolling “is unavailable in most cases,” and “the threshold necessary to trigger equitable tolling under AEDPA is very high, lest the exceptions swallow the rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.2002) (internal quotations omitted). A habeas petitioner is entitled to equitable tolling only if he shows “ ‘(1) that he has been pursuing his rights diligently, and (2) that…