Banks v. Walker

3 Citing cases

  1. Menjivar v. Frauenheim

    Case No. 14-cv-05010-JD (N.D. Cal. May. 19, 2015)   Cited 3 times

    Several courts have rejected equitable tolling in similar circumstances. See, e.g., LaCava v. Kyler, 398 F.3d 271, 276 (3d Cir. 2005) (no extraordinary circumstance where petitioner "impl[ied] that counsel was derelict in failing to timely notify him of the state court's disposition"); Dominguez v. Brazelton, No. 12-cv-6288 LHK, 2014 WL 94324, at *3-4 (N.D. Cal. Jan. 9, 2014) (no equitable tolling where counsel did not inform petitioner that his conviction had been affirmed on direct appeal); Ursua v. Hedgpeth, No. 10-cv-1316 JF, 2011 WL 3443423, at *3 (N.D. Cal. Aug. 5, 2011) (no equitable tolling where counsel failed to notify petitioner of California Supreme Court denial of review); Banks v. Walker, No. 07-cv-02022 AK, 2010 WL 5200920, at *1 (E.D. Cal. Dec. 15, 2010) (no equitable tolling where counsel failed to notify petitioner about the denial of his direct appeal), certificate of appealability denied by Banks v. Walker, No. 11-15089 (9th Cir. May 24, 2012); Mollison v. Martel, No. 08-cv-0994 JAM EFB P, 2009 WL 2940912, at *3 (E.D. Cal. Sept. 10, 2009) (no extraordinary circumstance where petitioner alleged "that counsel failed to communicate information (crucial as it may have proven to be) under circumstances that suggest attorney negligence"), certificate of appealability denied by Mollison v. Martel, No. 10-15556 (9th Cir. Aug. 12, 2011). The Court agrees with the holdings that a petitioner is not entitled to equitable tolling where counsel did not inform him that his conviction had been affirmed on direct appeal. Moreover, not only were appellate counsel's actions mere negligence, but Menjivar has failed to demonstrate that he had been pursuing his rights diligently. He did not begin to contact appellate counsel until December 5, 2013, m

  2. Poitra v. North Dakota

    79 F. Supp. 3d 1021 (D.N.D. 2015)   Cited 2 times

    nd not enough to constitute an extraordinary circumstance because it involved no affirmative misrepresentation or other like conduct); Salinas v. Dretke, 354 F.3d 425, 431–32 (5th Cir.2004)overruled on other grounds by Jimenez v. Quarterman, 555 U.S. 113, 129 S.Ct. 681, 172 L.Ed.2d 475 (2009) (same); Hunter v. United States, No. 3:10–cv–343, 2013 WL 4780918, at * 4 (E.D.Tenn. Sept. 5, 2013) (counsel's failure to inform § 2255 petitioner that United States Supreme Court had denied certiorari was garden variety excusable neglect that did not constitute an extraordinary circumstance); Turner v. Ellington, No. 1:10–cv–0446, 2013 WL 6596949, at *3 (M.D.Ala. Dec. 13, 2013) (“[Petitioner's] lawyer's negligence in failing to notify [petitioner] that her conviction was affirmed on direct appeal is certainly not laudable, but it is not the kind of mistake which equates to abandonment or otherwise rises to the level of extraordinary circumstances sufficient to toll the statute of limitations.”); Banks v. Walker, No. 2:07–cv–02022, 2010 WL 5200920, at *1 (E.D.Cal. Dec. 15, 2010) (state postconviction counsel's failure to notify petitioner of state supreme court's denial of petition for collateral review until after deadline for filing federal habeas petition had passed was simple attorney negligence which was not an extraordinary circumstance).

  3. Dominguez v. Brazelton

    No. C 12-6288 LHK (PR) (N.D. Cal. Jan. 8, 2014)

    See Holland, 130 S. Ct. at 2564 (mere negligence by counsel, without more, does not constitute an extraordinary circumstance warranting equitable tolling); see also Randle v. Crawford, 604 F.3d 1047, 1055 (9th Cir. 2010) (state-appointed appellate counsel's failure to perfect direct appeal and incorrect advice regarding pursuit of state habeas relief did not justify equitable tolling because counsel's alleged negligence "had little to no bearing on [petitioner's] ability to file a timely federal habeas petition"). Courts have rejected equitable tolling in similar situations. See, e.g., LaCava v. Kyler, 398 F.3d 271, 276 (3d Cir. 2005) (no extraordinary circumstance where petitioner "impl[ied] that counsel was derelict in failing to timely notify him of the state court's disposition"); Banks v. Walker, No. 07-cv-02022-AK, 2010 WL 5200920, at *1 (E.D. Cal. Dec. 15, 2010) (finding that counsel's failure to notify petitioner about the denial of his direct appeal was simple attorney negligence not warranting equitable tolling), certificate of appealability denied by Banks v. Walker, No. 11-15089 (9th Cir. May 24, 2012); Mollison v. Martel, No. 08-cv-00994, 2009 WL 2940912, at *3 (E.D. Cal. Sept. 10, 2009) (no extraordinary circumstance where petitioner alleged "that counsel failed to communicate information (crucial as it may have proven to be) under circumstances that suggest attorney negligence"), certificate of appealability denied by Mollison v. Martel, No. 10-15556 (9th Cir. Aug. 12, 2011); Rodriguez v. Marshall, No. 05-cv-0230, 2009 WL 1424260, at *3 (E.D. Cal. May 20, 2009) (no extraordinary circumstance where petitioner argued "that he was prevented from timely filing the federal petition because his appellate counsel failed to notify him when the petition for review was denied by the California Supreme Court [despite having promised to do so]").