                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             NOV 22 2013

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

MARIO LOPES-BENITEZ,                             No. 12-16565

              Petitioner - Appellant,            D.C. No. 3:08-cv-00543-ECR-
                                                 VPC
  v.

E.K. MCDANIEL, Warden and NEVADA                 MEMORANDUM*
ATTORNEY GENERAL,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                 Edward C. Reed, Senior District Judge, Presiding

                     Argued and Submitted November 8, 2013
                            San Francisco, California

Before: FARRIS, BLACK**, and IKUTA, Circuit Judges.

       Mario Lopes-Benitez appeals the district court’s dismissal of certain claims

in his amended habeas petition as untimely under 28 U.S.C. § 2244(d). We have

jurisdiction under 28 U.S.C. § 2253(a), and we affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Susan H. Black, Senior Circuit Judge for the U.S.
Court of Appeals for the Eleventh Circuit, sitting by designation.
      On the facts of this case, extraordinary circumstances did not prevent Lopes

from timely filing the new claims he raised in the amended petition. Cf. Holland v.

Florida, 130 S. Ct. 2549, 2562–63 (2010). Because the district court equitably

tolled the one-year statute of limitations until Lopes filed his initial petition on

October 1, 2008, Lopes had a full year to file any amended petition. 28 U.S.C.

§ 2244(d)(1). The district court appointed counsel on April 1, 2009, with six

months remaining before the deadline for filing any new claims. Because Lopes

had the assistance of counsel for six months, the untimeliness of the petition is due

not to extraordinary circumstances, but to his attorney’s delay or lack of diligence.

Cf. Coleman v. Thompson, 501 U.S. 722, 755–57 (1991). Lopes consequently fails

to clear the “very high” threshold necessary to trigger equitable tolling. Miranda v.

Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (internal quotation marks and

alterations omitted).

      Nor is statutory tolling appropriate. Even assuming the prison library

system was so deficient as to constitute a state-created constitutional impediment,

the record shows that Lopes failed to interact with the library after he filed his

initial petition. Consequently, there was no “causal connection between the

unlawful impediment and [Lopes’s] failure to file a timely habeas petition.”

Bryant v. Schriro, 499 F.3d 1056, 1060 (9th Cir. 2007).


                                            2
      Finally, the district court appropriately concluded that the four new claims at

issue on appeal did not relate back. No “common ‘core of operative facts’ unit[es]

the original and newly asserted claims.” Mayle v. Felix, 545 U.S. 644, 659 (2005).

Moreover, the district court did not err in declining to consider the state court

records that Lopes filed months after his initial petition as raising the four new

claims, because such claims were not “clear[ly] and repeated[ly] reference[d]” in

his petition. Dye v. Hofbauer, 546 U.S. 1, 4 (2005); Fed. R. Civ. P. 10(c); Rules

Governing Section 2254 Cases in the United States District Courts 2(c).

AFFIRMED.




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