Astorga

MEMORANDUM *

Edil Astorga appeals the dismissal of his habeas corpus petition. The district court dismissed the petition as untimely under the one-year statute of limitation dictated by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See 28 U.S.C. § 2244 (d)(1). After prior remand from our court, the district court rejected Astorga’s claim that his inability to speak or read English and lack of access to Spanish language legal materials entitled him to equitable tolling.

Astorga has the burden of demonstrating that he is entitled to tolling of the AEDPA statute of limitation. See Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002). “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, — U.S. -, -, 125 S.Ct. 1807, 1814 , 161 L.Ed.2d 669 (2005). We conclude initially that Astorga failed to demonstrate that he was diligent in pursuing his habeas petition. See id.; Spitsyn v. Moore, 345 F.3d 796, 802 (9th Cir.2003). He has not explained any affirmative actions he took, or was prevented…