FILED

NOT FOR PUBLICATION

OCT 17 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY BERNARD SMITH, Jr., No. 17-15874

Petitioner-Appellant, D.C. No. 2:15-cv-01785-JAM-AC

v.

MEMORANDUM*

RON DAVIS,

Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Argued and Submitted October 9, 2018 San Francisco, California

Before: D.W. NELSON, W. FLETCHER, and BYBEE, Circuit Judges.

Anthony Smith appeals the district court’s order dismissing his petition for writ

of habeas corpus. We have jurisdiction under 28 U.S.C. §§ 1291, 2253. We review

the district court’s order de novo. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.

2003). We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Smith filed his habeas petition on August 14, 2015, approximately twelve

months after he received his appellate record from his attorney and fourteen months

after his state conviction became final. The magistrate judge issued findings and a

recommendation that Smith’s petition be dismissed. The district court dismissed

Smith’s petition as untimely.

Smith argues that he was entitled to equitable tolling for the two months during

which his appellate attorney improperly retained his records. A habeas petitioner

seeking equitable tolling must show “‘(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 (2010) (quoting Pace

v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “Courts may . . . consider a petitioner’s

diligence, after an extraordinary circumstance has been lifted, as one factor in a

broader diligence assessment” to “ensure that the extraordinary circumstance faced

by petitioners . . . cause[d] [] the tardiness of their federal habeas petitions.” Gibbs

v. Legrand, 767 F.3d 879, 892 (9th Cir. 2014) (citations and quotations omitted). We

are willing to assume that the failure of Smith’s counsel to provide his records was an

extraordinary circumstance. But when Smith received his records, he had ten months

left in which to file his federal petition. Smith did not explain why the two-month

deprivation of his records caused his untimely filing. A review of his petition reveals

2 that it is essentially a verbatim copy of his previous state filings. Under these

circumstances, the district court was correct to conclude that Smith had not established

(1) that the deprivation of his appellate record caused his untimely filing or (2) that

he diligently used the ten months of the limitations period that remained after

receiving his records.

AFFIRMED.

3