Miller v. Del Papa

MEMORANDUM **

Steven Miller seeks equitable tolling of the time during which his first federal habeas petition was pending. The bar for equitable tolling is high: “In this circuit, equitable tolling is warranted only by extraordinary circumstances beyond the petitioner’s control which made it impossible to file a timely federal habeas petition.” Fail v. Hubbard, 315 F.3d 1059, 1061-62 (9th Cir.2001). Miller does not meet this standard.

Importantly, Miller never pursued state post-conviction remedies prior to filing his first federal habeas petition, despite a clear indication from the Nevada Supreme Court that its dismissal of his direct appeal was without prejudice to the filing of a habeas petition in the state district court. Nor does Miller offer a valid reason for failing to file a state habeas petition. Even assuming that filing a state habeas petition would have been futile, such a showing would not excuse his failure to exhaust state remedies. See Noltie v. Peterson, 9 F.3d 802, 805-06 (9th Cir.1993).

The district court did not err in determining that Miller’s first federal petition was completely unexhausted. When the district court dismissed for failure to exhaust…