Escobar v. Newland

58 F. App'x 267

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 17, 2003
• Docket: No. 00-56686; D.C. No. CV-99-09415-FMC
• Status: Published

Opinion

MEMORANDUM

**

Luis Escobar, a California state prisoner, appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and affirm.

Escobar contends that he is entitled to equitable tolling because his retained counsel did not notify him that his state petition had been denied, did not file a timely habeas petition, or in the alternative, failed to forward case materials or a pro se habeas petition. Escobar’s contention lacks merit because his counsel’s failures do not qualify as extraordinary circumstances warranting equitable tolling. See Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001) (denying equitable tolling based on counsel’s negligence), cert. denied, 535 U.S. 1055, 122 S.Ct. 1913, 152 L.Ed.2d 823 (2002); Miranda v. Castro, 292 F.3d 1063, 1067-68 (9th Cir.) (rejecting equitable tolling claim despite counsel’s miscalculation of the AJEDPA deadline), cert. denied, — U.S.-, 123 S.Ct. 496, 154 L.Ed.2d 399 (2002).

Escobar also contends that he is entitled to equitable tolling because he was denied access to legal materials in the law library while in administrative segregation. This contention fails because Escobar was placed in administrative segregation after his AEDPA deadline had passed. Cf Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999) (requiring a petitioner to show extraordinary circumstances making it impossible to file a habeas petition).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.