Ben Noyakuk v. Craig Turnbull

MEMORANDUM

Petitioner-Appellant Ben Noyakuk appeals the dismissal of his habeas corpus petition as untimely. As the facts and procedural history are familiar to the parties, we do not recite them here except as necessary to explain our disposition. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Noyakuk concedes that he filed his ha-beas corpus petition under 28 U.S.C. § 2254 two days after the expiration of the one-year statute of limitations. 28 U.S.C. § 2244 (d)(1). However, he contends that he is entitled to equitable tolling because his attorney at trial and on direct appeal led him to believe that it was not possible to file a habeas petition to challenge the denial of a suppression motion.

To receive equitable tolling, the petitioner must show: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 , 125 S.Ct. 1807 , 161 L.Ed.2d 669 (2005). Mere attorney negligence does not give rise to equitable tolling. In Frye v. Hickman, 273 F.3d 1144 (9th Cir.2001), this court held that the “miscalculation of the limitations period by [petitioner’s] counsel and his…