Eulloqui v. Pliler

84 F. App'x 807

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 15, 2003
• Docket: No. 02-57122; D.C. No. CV-02-00999-CAS
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Francisco Eulloqui appeals the judgment denying his 28 U.S.C. § 2254 habeas petition, which challenged his conviction and 35 years to life sentence for murder. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Eulloqui challenges the dismissal of his § 2254 petition as time-barred contending that he is entitled to equitable tolling because (1) his access to the prison library was restricted due to prison lockdowns; and (2) he needed additional time to review the hundreds of pages in his file because his prior counsel did not provide him with his file in a timely manner. In the alternative, he requests remand for an evidentiary hearing. We are unpersuaded.

Eulloqui is not entitled to equitable tolling because he has not demonstrated that the alleged prison lockdowns and restricted access to the prison library amounted to “extraordinary circumstances” beyond his control preventing him from filing a timely petition. See Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.) (as amended) (recognizing that the lack of access to library material does not automatically qualify as grounds for equitable tolling), cert. denied, 535 U.S. 1055, 122 S.Ct. 1913, 152 L.Ed.2d 823 (2002); see also Miranda v. Castro, 292 F.3d 1063, 1068 (9th Cir.), (recognizing that attorney negligence in general does not constitute extraordinary circumstances sufficient to warrant equitable tolling), cert, denied, 537 U.S. 1003, 123 S.Ct. 496, 154 L.Ed.2d 399 (2002). Thus, we deny Eulloqui’s request for an evidentiary hearing, and affirm the district court’s dismissal of his § 2254 petition as time-barred. See 28 U.S.C. § 2244(d).

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.