United States v. Francisco Astorga

MEMORANDUM

Appellant Francisco Acosta Astorga appeals the district court’s denial of his Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 . The district court denied his motion after holding an evidentiary hearing. We affirm because Acosta’s petition was not timely.

Appellant did not file it within one year of the date of his conviction. 28 U.S.C. § 2255 (f)(1). Nor did Appellant learn of any new facts that he could not have discovered through the exercise of due diligence; he merely learned of the legal significance of the alleged facts that existed at the time of his conviction. See id. § 2255(f)(4); Hasan v. Galaza, 254 F.3d 1150 , 1154 n. 3 (9th Cir.2001). Furthermore, Appellant is not entitled to equitable tolling because he did not diligently pursue his claim and also because, given his ability to pay for translation assistance, he cannot show that “extraordinary circumstances” prevented him from filing his claim. See United States v. Aguirre-Ganceda, 592 F.3d 1043, 1045-46 (9th Cir.), cert. denied, — U.S.-, 130 S.Ct. 3444 , 177 L.Ed.2d 349 (2010); Mendoza v. Carey, 449 F.3d 1065 , 1070 & n. 5 (9th Cir.2006).

Even if we were to reach Acosta’s…