Kingdom v. Lamarque

Ninth Circuit

Kingdom v. Lamarque

268 F. App'x 671

Court of Appeals for the Ninth Circuit·Decided March 6, 2008·No. No. 07-15549·Published

Opinion

MEMORANDUM

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California prisoner Miltonous Kingdom appeals from the district court’s judgment dismissing as untimely his 28 U.S.C. § 2254 petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo, Brambles v. Duncan, 412 F.3d 1066, 1069 (9th Cir.2005), and we affirm.

Kingdom contends that he is entitled to equitable tolling because his attorney’s misconduct in failing to file a timely petition constituted extraordinary circumstances beyond his control. This contention fails because ordinary attorney negligence does not constitute an extraordinary circumstance sufficient to warrant equitable tolling. See Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001); cf. Spitsyn v. Moore, 345 F.3d 796, 800-802 (9th Cir.2003). Furthermore, we agree with the district court that the record reflects that Kingdom did not pursue his rights diligently. See Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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MEMORANDUM

**

California prisoner Miltonous Kingdom appeals from the district court’s judgment dismissing as untimely his 28 U.S.C. § 2254 petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo, Brambles v. Duncan, 412 F.3d 1066, 1069 (9th Cir.2005), and we affirm.

Kingdom contends that he is entitled to equitable tolling because his attorney’s misconduct in failing to file a timely petition constituted extraordinary circumstances beyond his control. This contention fails because ordinary attorney negligence does not constitute an extraordinary circumstance sufficient to warrant equitable tolling. See Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001); cf. Spitsyn v. Moore, 345 F.3d 796, 800-802 (9th Cir.2003). Furthermore, we agree with the district court that the record reflects that Kingdom did not pursue his rights diligently. See Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Kingdom v. Lamarque, 268 F. App'x 671 (9th Cir. 2008).

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