Summary
rejecting petitioner's contention that lack of access to legal materials and a law library constituted cause for failure to exhaust and procedural bar
Summary of this case from Vickrey v. RyanOpinion
No. 06-35218.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed May 22, 2008.
David Tarver, Airway Heights, WA, pro se.
Donna H. Mullen, Esq., Office of the Washington Attorney General, Olympia, WA, for Respondents-Appellees.
Appeal from the United States District Court for the Western District of Washington, Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-05-05237-FDB.
Before: PREGERSON, TASHIMA and GOULD, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Washington state prisoner David Tarver appeals pro se from the district court's judgment dismissing his 28 U.S.C. § 2254 petition as unexhausted and procedurally barred. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.
Tarver contends the district court erred by dismissing his § 2254 petition for failure to exhaust state remedies, because the failure to do so was caused by his lack of access to legal materials and a law library while he was in transport. We reject this contention because Tarver has failed to show how the alleged inadequate access prevented him from filing a timely petition, or a timely motion for an extension of time, especially in light of the fact that his first request for an extension of time was not filed until four months after the time period he was in transport. See Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999). Accordingly, the district court's judgment dismissing the petition as unexhausted and procedurally barred is affirmed. See O'Sullivan v. Boerckel, 526 U.S. 838, 844, 848, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).