Cruz
Cruz v. Small
Opinion
Lead Opinion
MEMORANDUM **
Jose Cruz, a California state prisoner, appeals the district court’s dismissal of his 28 U.S.C. § 2254 petition as time-barred under 28 U.S.C. § 2244 (d). We have jurisdiction pursuant to 28 U.S.C. § 2253 . We review de novo, see Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and we affirm.
Cruz contends that he is entitled to equitable tolling because his state-appointed appellate attorney had a duty to inform him that his petition for review to the California Supreme Court had been denied, and counsel’s failure to do so prevented him from filing his federal habeas petition on time. We disagree.
Counsel’s failure to inform Cruz of the denial of his petition for review is not enough to warrant equitable tolling. See Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001) (denying equitable tolling based on counsel’s negligence), cert, denied, - U.S.-, 122 S.Ct. 1913 , 152 L.Ed.2d 823 (2002); see also Miranda v. Castro, 292 F.3d 1063, 1067-68 (9th Cir.2002) (rejecting claim of equitable tolling despite counsel’s mistaken advice about AEDPA deadline).
Moreover, by waiting over a year to inquire about his petition for review, *794 then waiting almost another year…