Martinez v. Ryan

133 F. App'x 382

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 16, 2005
• Docket: No. 04-16568
• Status: Published

Opinion

MEMORANDUM

**

Arizona state prisoner Robert Bradford Martinez appeals the district court’s dismissal as untimely of his 28 U.S.C. § 2254 habeas petition challenging his conviction for first degree murder, armed robbery, kidnaping and theft by means of transportation. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, see Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and we affirm.

Martinez contends that he is entitled to equitable tolling of the Antiterrorism and Effective Death Penalty Act’s one-year period of limitation due to his limited education, his reliance on other prisoners to file his petition, and his lack of access to legal materials and assistance given his custody status. We disagree. Even assuming these problems to be true, they do not constitute extraordinary circumstances which made timely filing impossible. See id. at 1107.

Martinez’s request to broaden the certificate of appealability is granted. See 9th Cir. R. 22-l(e); Isley v. Arizona Dep’t of Corr., 388 F.3d 1054, 1055-56 (2004) (holding that appellant is entitled statutory tolling from date of filing notice of post-conviction relief petition). However, even with the benefit of statutory tolling, the petition is still untimely.

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.