Phillip Sanders v. James Tilton

MEMORANDUM

Petitioner Phillip C. Sanders appeals the district court’s dismissal of his petition under 28 U.S.C. § 2254 as untimely. We must determine (1) whether petitioner is entitled to equitable tolling on the ground that he was “abandoned” by his attorney while pursuing a previous habeas petition and (2) whether the district court erred in denying petitioner an evidentiary hearing on the equitable tolling issue.

A district court’s dismissal of a federal habeas petition on statute of limitations grounds is reviewed de novo, and denial of an evidentiary hearing is reviewed for abuse of discretion. Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir.2006) (citing United States v. Sandoval-Lopez, 409 F.3d 1193, 1195 (9th Cir.2005)).

The parties do not dispute that the one-year period which petitioner had to file his federal habeas petition expired in 1997, more than ten years before he filed. See 28 U.S.C. § 2244 (d)(l)-(2). However, a petitioner may be entitled to equitable tolling if he can 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, — U.S. -, 130 S.Ct.…