NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 26 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TONY ONTIA BROWN, No. 19-16508

Petitioner-Appellant, D.C. No. 2:17-cv-00387-GMN-CWH v.

WILLIAM GITTERE, AKA Renee Baker; MEMORANDUM*

ATTORNEY GENERAL FOR THE STATE

OF NEVADA,

Respondents-Appellees.

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding

Argued and Submitted January 14, 2021 San Francisco, California

Before: WALLACE and M. SMITH, Circuit Judges, and LASNIK,** District Judge.

We write primarily for the parties who are familiar with the facts. Appellant

Tony Brown appeals from the dismissal of his federal habeas petition as untimely.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. Brown filed a pro se federal habeas petition under 28 U.S.C. § 2254, as amended by

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Brown

concedes that he filed his federal habeas petition 95 days after the expiration of

AEDPA’s one-year statute of limitations, but he argues that he is entitled to equitable

tolling of the limitations period due to attorney misconduct.

Brown alleges that his attorney failed to notify him that his direct appeal had

concluded until more than ten months after the fact. For this allegation, he relies

upon a declaration of his direct appeal attorney, which stated in relevant part:

On 12/04/14 I received a telephone call from Mr. Brown asking the status of his appeal. I was surprised because his appeal was denied on 01/24/14 and I thought he had received our paperwork regarding this matter. Because of the limited time period for the filing, I agreed to refile his previously filed Writ of Habeas in June and September 2013.

The district court held that Brown failed to meet the standard for equitable

tolling because “his proffered evidence [did] not conclusively show that counsel

failed to notify him of the status of his appeal,” and even if counsel did fail in this

notification, “the evidence before the court [fell] well short of establishing” that an

extraordinary circumstance stood in his way and prevented timely filing.

Our court granted a certificate of appealability with respect to whether

Brown’s 28 U.S.C. § 2254 petition was timely filed.

We review de novo the question whether a petitioner’s application for federal

habeas relief was timely filed. Rudin v. Myles, 781 F.3d 1043, 1053 (9th Cir. 2014).

2 We also review de novo the question whether AEDPA’s statute of limitations should

be tolled. Id. We conclude that the district court properly dismissed Brown’s petition

as untimely because Brown was not entitled to equitable tolling.

Under AEDPA, a one-year statute of limitations exists for federal habeas

petitions filed by state prisoners. 28 U.S.C. § 2244(d)(1). Brown concedes that his

petition was 95 days late, and he argues that equitable tolling should apply to render

his petition timely. AEDPA’s limitations period is subject to equitable tolling where

a petitioner shows two elements: “‘(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)). The petitioner has the burden of proof, 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, 1065–66 (9th Cir.

2002) (alteration in original) (citation omitted). The district court did not address the

diligence element of equitable tolling under AEDPA because the court concluded

that Brown did not meet the element regarding extraordinary circumstances. We

agree that Brown did not meet the element regarding extraordinary circumstances,

and we further conclude that Brown failed to meet the diligence element.

First, with respect to extraordinary circumstances, Brown’s evidence does not

show that his attorney failed to notify him that his direct appeal was denied. Brown’s

3 attorney reported in her declaration, “I thought [Brown] had received our paperwork

regarding this matter.” It is not at all clear that Brown’s attorney was at fault for

Brown not being timely notified about the conclusion of his direct appeal. Even if

arguendo, Brown’s attorney had been negligent in failing to notify Brown that his

direct appeal was no longer pending, this is not “unprofessional conduct” that is

“extraordinary.” Holland, 560 U.S. at 651. The same day that Brown telephoned his

attorney regarding his appeal, his attorney filed the state post-conviction petition. As

a result of Brown’s attorney’s same-day action, Brown had 140 days of time

remaining in the limitations period to file his petition.1

Although Brown attempts to analogize his case to Gibbs v. LeGrand, 767 F.3d

879 (9th Cir. 2014), there are key differences. Unlike Gibbs, Brown has not alleged

that he made repeated attempts to contact his attorney, let alone that his questions or

concerns went unanswered. See Gibbs, 767 F.3d at 887 (highlighting that Gibbs

wrote to his attorney several times, and his attorney did not respond). Another way

in which Brown’s case is distinct from Gibbs is that Brown has not alleged that his

attorney promised to inform him of the status of his direct appeal. See id. (Gibbs’

attorney “expressly promised Gibbs that he would forward him the court’s notice of

1 The district court referred to there being 140 days of time remaining in the limitations period, whereas Brown’s opposition to the motion to dismiss below and his brief to our court indicate that 141 days remained. The distinction does not matter for purposes of our analysis.

4 decision”). Additionally, assuming arguendo that Brown did not learn about the

denial of his direct appeal until he called his attorney on December 4, 2014, Brown

still had 140 days to submit a timely petition. In contrast, Gibbs did not learn about

the denial of his state post-conviction petition until “the federal deadline had

passed.” Id. at 888. Brown’s circumstances are not extraordinary.

Second, Brown also failed to demonstrate diligence. Our court has held that

a petitioner did not meet the diligence element where,

when given the opportunity to explain how he had used his time diligently after receiving his file from his attorney . . . [the petitioner] made no allegation or claim in his opposition to the motion to dismiss or his supporting declaration that he had acted diligently but had not been able to file earlier.

Smith v. Davis, 953 F.3d 582, 601 (9th Cir. 2020) (en banc). Brown has a similar

problem. Brown did not file his own declaration, and his opposition to the motion to

dismiss included the conclusory statement that he “could not have been more

diligent.” Brown supported this statement with only the following explanation

regarding his actions after the alleged impediment to his filing was removed:

“Although Brown used 236 days to file his federal petition, it is clear Brown believed

he was filing his federal petition well in advance of the one-year statute of limitations

time-period—after all, he filed his state post-conviction petition the same day he

learned his direct appeal had concluded.” Like the petitioner in Smith, Brown failed

to support his claim that he acted diligently after the alleged impediment was

5 dispelled. Brown’s mere belief that he was filing his petition in advance of the one-

year limitations period does not demonstrate diligence. See Waldron-Ramsey v.

Pacholke, 556 F.3d 1008, 1013 n.4 (9th Cir. 2009) (“[A] pro se petitioner’s

confusion or ignorance of the law is not, itself, a circumstance warranting equitable

tolling.”) (citing Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006)).

Because Brown meets neither of the equitable tolling elements, Brown is not

entitled to equitable tolling, and his petition was not timely filed.

AFFIRMED.

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