                                                                              FILED
                            NOT FOR PUBLICATION                                JAN 19 2012

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



ROBERT BATTISTE,                                   No. 11-15686

               Petitioner - Appellant,             D.C. No. 2:09-cv-01390-JAM

  v.
                                                   MEMORANDUM *
ANTHONY HEDGPETH, Warden,

               Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                             Submitted January 17, 2012

Before:        LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.

       California state prisoner Robert Battiste appeals pro se from the district

court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We

have jurisdiction under 28 U.S.C. § 2253, and we affirm.

       Battiste contends that the district court erred by dismissing his petition as

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
untimely because his attorney’s failure to file a federal habeas petition entitles him

to equitable tolling. Battiste is not entitled to equitable tolling because he has not

shown that his attorney’s conduct was so egregious as to constitute an

“extraordinary circumstance” that prevented him from filing a timely petition. See

Holland v. Florida, 130 S. Ct. 2549, 2563-64 (2010). He also has not shown that

he was diligent in pursuing his rights during the relevant time periods. See Bryant

v. Ariz. Att’y Gen., 499 F.3d 1056, 1061 (9th Cir. 2007). Accordingly, we affirm

the dismissal of Battiste’s petition.

      AFFIRMED.




                                            2                                    11-15686
