Peter Munoz, Jr. v. Gregory Smith

Opinion

FILED NOT FOR PUBLICATION APR 17 2013

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

PETER J. MUNOZ, Jr., No. 11-17904

Petitioner - Appellant, D.C. No. 3:11-cv-00197-LRH- RAM v.

GREGORY SMITH, Warden; MEMORANDUM * NEVADA ATTORNEY GENERAL,

Respondents - Appellees.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding

Submitted April 15, 2013 ** San Francisco, California

Before: KOZINSKI, Chief Judge, O’SCANNLAIN and N.R. SMITH, Circuit Judges.

A habeas petitioner is entitled to equitable tolling of AEDPA’s one-year

statute of limitations if he shows “(1) that he has been pursuing his rights

* This disposition isn’t appropriate for publication and isn’t precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). page 2

diligently, and (2) that some extraordinary circumstance stood in his way and

prevented timely filing.” Holland v. Florida, 130 S. Ct. 2549, 2562 (2010)

(internal quotation marks omitted). The circumstances must be “beyond a

prisoner’s control” and “make it impossible to file a petition on time.” Ford v.

Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012).

1. Munoz claims that, because his state post-conviction counsel failed to

notify him that the state proceeding was over, Munoz was unable to file his federal

petition in time. But, as the district court pointed out, Munoz had “no

constitutional right to counsel, and thus no right to effective assistance of counsel,

in post-conviction proceedings.” See Coleman v. Thompson, 501 U.S. 722,

756–57 (1991). In addition, Munoz admits he learned that the state proceedings

were over on September 9, 2010, giving him at least two months to file his petition

in federal court. It wasn’t diligent for him to wait six months.

2. Munoz’s lack of access to the prison library did not prevent him from

filing his federal petition. He could have, at the very least, prepared and filed “a

basic form habeas petition” based on his state petition. See Waldron-Ramsey v.

Pacholke, 556 F.3d 1008, 1014 (9th Cir. 2009). In fact, he had two other actions in

federal court at the time and was filing documents with the court. So even if page 3

Munoz was unable to get all the books he wanted, he obviously was capable of

filing documents.

Munoz’s argument that he received bad advice from an employee at the

prison law library is also insufficient to warrant equitable tolling. Bad advice and

miscalculations are insufficient to justify tolling. Lawrence v. Florida, 549 U.S.

327, 336–37 (2007); Miranda v. Castro, 292 F.3d 1063, 1067–68 (9th Cir. 2002).

3. Finally, Munoz claims he was entitled to an evidentiary hearing in district

court. A petitioner may be entitled to an evidentiary hearing if he makes “a good-

faith allegation that would, if true, entitle him to equitable tolling.” Roy v.

Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (internal quotation marks and

emphasis omitted). Here, even if Munoz’s allegations were true, he wouldn’t be

entitled to habeas relief because there was no extraordinary circumstance that

prevented him from filing his habeas petition in time. Thus, the district court

didn’t abuse its discretion in denying Munoz’s request for a hearing. See

McLachlan v. Bell, 261 F.3d 908, 910 (9th Cir. 2001).

AFFIRMED.