Herrera v. Butler

Ninth Circuit

Herrera v. Butler

184 F. App'x 648

CourtCourt of Appeals for the Ninth Circuit

DecidedJune 15, 2006

DocketNo. 04-17211

StatusPublished

Cited by4 cases

This text of 184 F. App'x 648 (Herrera v. Butler) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Herrera v. Butler, 184 F. App'x 648 (9th Cir. 2006).

Pincite

Opinion

MEMORANDUM

**

Petitioner Theodore Herrera contends that the district court erroneously dismissed his first petition for a writ of habeas corpus, and that either equitable tolling or relation back saves his second petition, which he filed over a year and a half after the dismissal of the first one, from dismissal under 28 U.S.C. § 2244(d).

We hold that equitable tolling is unavailable because Herrera did not pursue his rights diligently. See Pace v. DiGuglielmo, 544 U.S. 408, 418-19, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005); Guillory v. Roe, 329 F.3d 1015, 1018 (9th Cir.2003) (as amended). For the same reason, undue delay, Herrera’s second petition does not relate back to his first petition. See Anthony v. Cambra, 236 F.3d 568, 577 (9th Cir.2000) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)).

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 9th Cir. R. 36-3.

Free access — add to your briefcase to read the full text and ask questions with AI

MEMORANDUM

**

Petitioner Theodore Herrera contends that the district court erroneously dismissed his first petition for a writ of habeas corpus, and that either equitable tolling or relation back saves his second petition, which he filed over a year and a half after the dismissal of the first one, from dismissal under 28 U.S.C. § 2244(d).

We hold that equitable tolling is unavailable because Herrera did not pursue his rights diligently. See Pace v. DiGuglielmo, 544 U.S. 408, 418-19, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005); Guillory v. Roe, 329 F.3d 1015, 1018 (9th Cir.2003) (as amended). For the same reason, undue delay, Herrera’s second petition does not relate back to his first petition. See Anthony v. Cambra, 236 F.3d 568, 577 (9th Cir.2000) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)).

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 9th Cir. R. 36-3.

Cite This Page — Counsel Stack

Bluebook (online)

184 F. App'x 648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herrera-v-butler-ca9-2006.

Opinion

Related

Cite This Page — Counsel Stack