Gray
Gray v. California Department of Corrections
Opinion
Lead Opinion
MEMORANDUM **
Jeffrey Dee Gray appeals the district court’s dismissal of his petition for habeas *547 relief as untimely. Gray contends that the court erred in failing to accept his claim of equitable tolling. We reject that contention and affirm.
DISCUSSION
We review de novo a district court’s dismissal of a federal habeas corpus petition based on the Antiterrorism and Effective Death Penalty Act’s (AEDPA) one-year statute of limitations. Malcom v. Payne, 281 F.3d 951, 955-56 (9th Cir. 2002). Gray does not dispute that his petition was untimely filed; he claims that his late filing should be equitably tolled because his original trial attorney failed to deliver his case files and transcripts.
Equitable tolling is “unavailable in most cases” and permissible only if “extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.) (citations omitted), cert. denied, 537 U.S. 1003 , 123 S.Ct. 496 , 154 L.Ed.2d 399 (2002). We conclude that Gray fails to establish the existence of extraordinary circumstances or that he was incapable of filing a timely petition. Gray’s petition is premised upon…