Gary Shepard v. Renee Baker

MEMORANDUM

Gary Shepard appeals the district court’s dismissal of his petition for writ of habeas corpus. See 28 U.S.C. § 2254 . We affirm.

Shepard asserts that the district court erred when it determined that his petition was barred by the statute of limitations. See 28 U.S.C. § 2244 (d)(1)(A). He agrees that absent equitable tolling the time to file his petition expired on March 23, 2007, and he did not file the operative petition (actually his first amended petition) until January 16, 2008. Nevertheless, he claims that equitable tolling applies here. The district court disagreed, as do we.

Certainly, a state prisoner is entitled to equitable tolling when he was diligently pursuing his rights, but some extraordinary circumstance prevented his timely filing. See Holland v. Florida, — U.S. -, -, 130 S.Ct. 2549, 2562 , 177 L.Ed.2d 130 (2010); Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003). Shepard asserts that he proceeded reasonably diligently, and that his attorney abandoned him. Were that so, he might have established his claims. See Holland, — U.S. at -, 130 S.Ct. at 2565 ; Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir.2011). We have reviewed the record and are unable to…