Peter Munoz, Jr. v. Gregory Smith
Opinion
Opinion
MEMORANDUM
A habeas petitioner is entitled to equitable tolling of AEDPA’s one-year statute of limitations if he shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, — U.S.-, 130 S.Ct. 2549, 2562 , 177 L.Ed.2d 130 (2010) (internal quotation marks omitted). The circumstances must be “beyond a prisoner’s control” and “make it impossible to file a petition on time.” Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir.2012).
1. Munoz claims that, because his state post-conviction counsel failed to notify him that the state proceeding was over, Munoz was unable to file his federal petition in time. But, as the district court pointed out, Munoz had “no constitutional right to counsel, and thus no right to effective assistance of counsel, in post-conviction proceedings.” See Coleman v. Thompson, 501 U.S. 722, 756-57 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991). In addition, Munoz admits he learned that the state proceedings were over on September 9, 2010, giving him at least two months to file his petition in federal court. It wasn’t diligent for him to wait six months.