Tjiak Wie Wong v. Lamarque

75 F. App'x 617

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 15, 2003
• Docket: No. 02-17019; D.C. No. CV-01-01768-MCE
• Status: Published

Opinion

MEMORANDUM

**

Tjiak Wie Wong, a California state prisoner, appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and affirm.

Wong contends that he is entitled to equitable tolling because appellate counsel misled him into thinking that she was still representing him on direct review. Wong’s contention lacks merit because his counsel’s failures do not qualify as extraordinary circumstances warranting equitable tolling. See Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001) (denying equitable tolling based on counsel’s negligence), cert. denied, 535 U.S. 1055, 122 S.Ct. 1913, 152 L.Ed.2d 823 (2002). Further, Wong cannot show the requisite diligence between the five years after his conviction became final and his first state habeas petition to justify equitable tolling. See Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999).

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.