NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 5 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH S. MARTIN, No. 22-16112

Petitioner-Appellant, D.C. Nos. 2:21-cv-00213-DGC 2:14-cr-00678-DGC-1 v.

UNITED STATES OF AMERICA, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding

Argued and Submitted May 13, 2024 Phoenix, Arizona

Before: DESAI and DE ALBA, Circuit Judges, and GUTIERREZ,** District Judge.

Petitioner Joseph Martin (“Petitioner”) appeals the district court’s denial of

his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 as barred by

§ 2255(f)’s one-year statute of limitation. We review the district court’s denial of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Philip S. Gutierrez, United States District Judge for the Central District of California, sitting by designation. habeas corpus for untimeliness de novo. Spitsyn v. Moore, 345 F.3d 796, 799 (9th

Cir. 2003), as amended (Nov. 3, 2003). “If the facts underlying a claim for

equitable tolling are undisputed, the question of whether the statute of limitations

should be equitably tolled is also reviewed de novo.” Id. And any “findings of

fact made by the district court are to be reviewed for clear error.” Id.; Miles v.

Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999). We have jurisdiction pursuant to 28

U.S.C. §§ 1291 and 2253(a), and we affirm.

1. Petitioner’s conviction became final on July 9, 2018, ninety days after

the Ninth Circuit affirmed his conviction, because he never perfected a petition for

a writ of certiorari with the United States Supreme Court. See United States v.

Blackstone, 903 F.3d 1020, 1024 (9th Cir. 2018), cert. denied, No. 18-9368, 2019

WL 2211790 (U.S. June 24, 2019); Clay v. United States, 537 U.S. 522, 532

(2003). The district court was correct in finding that the statute of limitation

should not be tolled for the period between August 19, 2019—when Petitioner

discovered that a certiorari petition had not been properly filed on his behalf—to

January 30, 2021, when he finally filed his § 2255 motion, and thus Petitioner’s

§ 2255 motion is time-barred.

A habeas petitioner is “‘entitled to equitable tolling’ only 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,

2 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005)); see also Spitsyn, 345 F.3d at 799. “The threshold necessary to trigger

equitable tolling . . . is very high, lest the exceptions swallow the rule,” Miranda v.

Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (cleaned up), and the inquiry is

“highly fact-dependent,” Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.

2000); Lott v. Mueller, 304 F.3d 918, 923 (9th Cir. 2002) (collecting cases).

Petitioner makes two arguments why the statute of limitation should be

equitably tolled. First, Petitioner says he was prevented from filing a habeas

petition because his trial counsel failed to turn over his entire client file to him until

June 2020. But Petitioner fails to show he pursued his rights diligently. He cannot

and does not explain why he did not file his motion for another seven months after

receipt, particularly given that Petitioner had drafted and signed the motion in

April 2020.

Second, Petitioner argues his post-conviction counsel misled him by

insisting on filing a Federal Rule of Civil Procedure 60(b) motion instead of a

habeas petition. Petitioner’s post-conviction counsel’s decision is not an

extraordinary circumstance, but a procedural default that Petitioner must bear. See

Coleman v. Thompson, 501 U.S. 722, 752 (1991) (finding there is “no inequity in

requiring [the petitioner] to bear the risk of attorney error that results in a

procedural default”). Petitioner’s reliance on Thomas v. Att’y Gen., 992 F.3d 1162

3 (11th Cir. 2021) is misplaced. Unlike in Thomas, nothing in the record before us

indicates that Petitioner’s post-conviction counsel actively prevented him from

filing his habeas petition or otherwise “abdicated [their] duty of loyalty” to

Petitioner. Id. at 1184. As to his diligence, Petitioner’s claim that he was misled is

belied by the fact that he filed his § 2255 motion before his post-conviction

counsel filed the Rule 60(b) motion, contrary to his post-conviction counsel’s

advice. The record shows that Petitioner had the ability and control—at least since

June 2020 when he received his client file—to file his motion, or at minimum,

direct his attorneys to do so. Cf. Calderon v. United States Dist. Ct. (Beeler), 128

F.3d 1283, 1289 (9th Cir. 1997), overruled in part on other grounds by Calderon v.

United States Dist. Ct. (Kelly), 163 F.3d 530 (9th Cir. 1998) (finding attorney

misconduct amounted to an extraordinary circumstance and that the petitioner had

been diligent where the petitioner had no control over his attorney who had

abandoned him with an unusable client file). But Petitioner fails to provide any

explanation why he waited so long to file.

2. Even though Petitioner challenges the district court’s jurisdiction over

his conviction in his § 2255 motion, his motion is still time-barred by § 2255(f)’s

statute of limitation. The plain language of § 2255(a) “specifically includes

jurisdictional challenges in its enumeration of grounds for relief from sentence.”

Williams v. United States, 383 F. App’x 927, 929 (11th Cir. 2010). Section

4 2255(f) states that the one-year limitation period “shall apply” to all motions made

under § 2255 and does not provide for any exceptions. See Barreto-Barreto v.

United States, 551 F.3d 95, 100 (1st Cir. 2008); United States v. Patrick, 264 F.

App’x 693, 695–96 (10th Cir. 2008); Williams, 383 F. App’x at 929–30; United

States v. Scruggs, 691 F.3d 660, 666 (5th Cir. 2012).

AFFIRMED.

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