Wade v. Terhune

111 F. App'x 927

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 22, 2004
• Docket: No. 03-17026
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Toby Titus Wade appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 petition as time-barred. 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.

Wade contends that his federal habeas petition should be equitably tolled because his counsel on direct appeal failed to notify him that his appeal was final and/or to deliver his transcripts. We disagree. Upon review of the record, we conclude that Wade has failed to establish the existence of extraordinary circumstances or that he was incapable of filing a timely petition. See Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001), cert. denied, 535 U.S. 1055, 122 S.Ct. 1913, 152 L.Ed.2d 823 (2002). The district court therefore properly found that equitable tolling is not warranted. See id.

We further conclude that the magistrate judge properly gave Wade the opportunity to file a supplemental declaration and to submit additional evidence in support of his petition. See Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc) (per curiam). Accordingly, we deny Wade’s request for an evidentiary hearing.

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.