Andrew MacKey v. William Muniz

MEMORANDUM

Andrew Mackey appeals the district court’s dismissal of his petition for a writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2258 , and we affirm.

Mackey, who suffers from severe mental impairments, filed the instant habeas petition challenging his conviction of child molestation related offenses after the expiration of the one-year statute of limitations set forth in. 28 U.S.C. § 2244 (d). Conspicuously missing from the record is any testimony from Mackey to the effect that he wanted to file a federal habeas petition but did not have the ability to do so himself and did not know how to get help.

The district court dismissed the petition as untimely and declined to apply equitable tolling to extend, the limitations period. Reviewing the dismissal of Mackey’s petition de novo, United States v. Avery, 719 F.3d 1080, 1082 (9th Cir. 2013), we agree with the district court that equitable tolling is inappropriate because the record does not reflect any diligence on Mackey’s part in attempting to file his federal habe-as petition within the limitations period. See Holland v. Florida, 560 U.S. 631 , 649, 130 S.Ct. 2549 , 177 L.Ed.2d 130 (2010) (noting a…