Albarran v. White

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 9, 2025
• Docket: 24-2758
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MIGUEL ALBARRAN, No. 24-2758 D.C. No. Petitioner - Appellant, 3:22-cv-05788-JNW v. MEMORANDUM* DAN WHITE,

Respondent - Appellee.

Appeal from the United States District Court for the Western District of Washington Jamal N. Whitehead, District Judge, Presiding

Submitted June 5, 2025** Seattle, Washington

Before: HAWKINS, GOULD, and BUMATAY, Circuit Judges.

Appellant Miguel Albarran (“Albarran”) appeals the district court’s dismissal

of his federal habeas petition as untimely, contending he should be entitled to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). equitable tolling. We review de novo, Smith v. Davis, 953 F.3d 582, 587 (9th Cir.

2020) (en banc), and we affirm.

Albarran was initially convicted of second-degree rape for assaulting his

girlfriend’s thirteen-year-old daughter and sentenced to a mandatory twenty-five

years in prison under Washington state law. He later brought an ineffective

assistance of counsel claim against his trial counsel, alleging that his counsel did not

adequately advise him to take a plea agreement. After unsuccessful state post-

conviction proceedings ended, Albarran’s post-conviction counsel miscalculated a

filing deadline and failed to timely file Albarran’s federal habeas petition. See 28

U.S.C. § 2244(d)(1).

To qualify for equitable tolling to excuse this late filing, Albarran must

demonstrate (1) diligent pursuit of his rights and (2) some extraordinary

circumstance that prevented timely filing. See Holland v. Florida, 560 U.S. 631,

649 (2010). However, miscalculating filing deadlines is not an extraordinary

circumstance but rather run-of-the-mill attorney error that “is simply not sufficient

to warrant equitable tolling, particularly in the postconviction context where

prisoners have no constitutional right to counsel.” Lawrence v. Florida, 549 U.S.

327, 336–37 (2007); see also Luna v. Kernan, 784 F.3d 640, 647 (9th Cir. 2015)

(“Attorney mistakes that warrant the label ‘garden variety’—like miscalculating a

filing deadline—are the sort of mistakes that, regrettably, lawyers make all the

2 24-2758 time.”) (emphasis added). Thus, the district court properly rejected Albarran’s

request for equitable tolling and dismissed his habeas petition as untimely.

AFFIRMED.

3 24-2758