Hutcherson v. Terhune

Full title: Juan Elvis HUTCHERSON, Petitioner--Appellant, v. C.A. TERHUNE, Director…

Court: United States Court of Appeals, Ninth Circuit

Date published: Feb 6, 2002

26 F. App'x 769 (9th Cir. 2002)

Opinion

26 Fed.Appx. 769 (9th Cir. 2002) Juan Elvis HUTCHERSON, Petitioner--Appellant, v. C.A. TERHUNE, Director, Respondent--Appellee. No. 00-55658. D.C. No. CV-99-06008-NM(RZ). United States Court of Appeals, Ninth Circuit. February 6, 2002

Argued and Submitted Jan. 17, 2002.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the Central District of California, Nora M. Manella, District Judge, Presiding.

Before SCHROEDER, Chief Judge, MCKEOWN, Circuit Judge, and ZILLY, District Judge. ¹

1 Honorable Thomas S. Zilly, United States District Judge for the Western District of Washington, sitting by designation.

MEMORANDUM ^*

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

Juan Hutcherson appeals the district court's dismissal of his 28 U.S.C. § 2254 habeas petition as untimely. We affirm.

Hutcherson filed his federal petition over two years after the statute of limitations expired. See 28 U.S.C. § 2244(d)(1) (providing a one-year limitations period). Thus, his petition is untimely absent some form of tolling. Hutcherson contends that

Page 770.

he is entitled to equitable tolling for his attorney's dilatory behavior from the time that the limitations period began on April 24, 1996 until he succeeded in hiring replacement counsel in May of 1998. See Calderon v. U.S. Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir.1997) (equitable tolling granted "if 'extraordinary circumstances' beyond a prisoner's control make it impossible to file a petition on time"). Even if his attorney's conduct rose to the level of "extraordinary conduct" necessary to establish equitable tolling, Hutcherson has not alleged facts sufficient to establish that "external forces, rather than [his] lack of diligence, account for his failure to file a timely claim." Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999). Hutcherson fails to acknowledge the significance of his access to legal materials, including a "final" draft petition that was in his possession as early as October 1995, more than six months before the limitations period even began with the enactment of AEDPA on April 24, 1996. We therefore affirm the district court's dismissal of his petition as untimely.

AFFIRMED.