Brian David Frye v. R. Hickman, Warden Attorney General of the State of California
Opinion
Opinion
Schroeder, J.
ORDER AND AMENDED OPINION
ORDER
The Opinion filed August 6, 2001, is amended as follows:
We conclude that the miscalculation of the limitations period by Frye’s counsel and his negligence in general do not constitute extraordinary circumstances sufficient to warrant equitable tolling. See Harris v. Hutchinson, 209 F.3d 325, 330-31 (4th Cir.2000)(AEDPA statute of limitations not equitably tolled by lawyer’s mistake resulting in missed deadline, because such a mistake is not an extraordinary circumstance); Taliani v. Chrans, 189 F.3d 597, 598 (7th Cir.1999)(concluding that, to the extent any equitable tolling is available for AEDPA, no tolling occurred because of a lawyer’s mistake resulting in a missed deadline).
The panel has voted to deny the Petition for Rehearing and to deny the Petition for Rehearing En Banc.
The full court has been advised of the Petition for Rehearing En Banc and no judge of the court has requested a vote on the Petition for Rehearing En Banc. Fed. R.App. P. 35(b).
With the above amendment the Petition for Rehearing and the Petition for Rehearing En Banc are DENIED.