     10-2593
     Rivera v. United States


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 30th day of November, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JOSÉ A. CABRANES,
 9                DEBRA ANN LIVINGSTON,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13      CARLOS F. RIVERA,
14
15                   Petitioner-Appellant,
16
17                   -v.-                                               10-2593
18
19      UNITED STATES OF AMERICA,
20
21                   Respondent-Appellee.
22
23      - - - - - - - - - - - - - - - - - - - -X
24
25      FOR APPELLANT:
26                                            Robert J. Boyle
27                                            New York, NY
28

                                                 1
 1   FOR APPELLEE:
 2                              Eric J. Glover (Robert M.
 3                              Spector, on the brief),
 4                              Assistant United States
 5                              Attorney, for David B. Fein,
 6                              United States Attorney,
 7                              District of Connecticut,
 8                              New Haven, CT
 9
10
11        Appeal from a judgment of the United States District
12   Court for the District of Connecticut (Kravitz, J.).
13
14        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
15   AND DECREED that the district court’s judgment is AFFIRMED.
16
17        Carlos Rivera appeals from a judgment entered in the
18   United States District Court for the District of Connecticut
19   denying as untimely his petition for a writ of habeas
20   corpus. We assume the parties’ familiarity with the
21   underlying facts, the procedural history, and the issues
22   presented for review.
23
24   [1] Rivera argues that the district court erred by denying
25   his motion to equitably toll the one-year limitations period
26   for filing his habeas petition. See 28 U.S.C. § 2255(f)(1).
27   We review the district court’s legal conclusions de novo and
28   its factual findings for clear error. Jenkins v. Greene,
29   630 F.3d 298, 302 (2d Cir. 2010). Where a district court
30   declines to grant equitable tolling “in the exercise of its
31   discretion, we apply an abuse of discretion standard.” Id.
32
33        “To equitably toll the one-year limitations period, a
34   petitioner must show that extraordinary circumstances
35   prevented him from filing his petition on time, and he must
36   have acted with reasonable diligence throughout the period
37   he seeks to toll.” Hizbullahankhamon v. Walker, 255 F.3d
38   65, 75 (2d Cir. 2001) (internal quotation marks omitted).
39   “[W]e set a high bar to deem circumstances sufficiently
40   ‘extraordinary’ to warrant equitable tolling.” Dillon v.
41   Conway, 642 F.3d 358, 363 (2d Cir. 2011) (per curiam).
42   Rivera has failed to surmount that bar. The circumstances
43   he alleges--a delay in his ability to get in contact with
44   his attorney to request a copy of his trial transcripts and

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 1   other documents, and the temporary withholding of those
 2   documents by the prison mail room to ensure compliance with
 3   a prison rule--are far from extraordinary. Rivera has not
 4   alleged egregious conduct on the part of his attorney. See
 5   Baldayaque v. United States, 338 F.3d 145, 152-53 (2d Cir.
 6   2003). Nor has he alleged intentional interference by
 7   prison personnel on the verge of the filing deadline. See
 8   Valverde v. Stinson, 224 F.3d 129, 133-34 (2d Cir. 2000).
 9   Rivera was denied access to the requested documents only
10   temporarily; the confiscation of his transcripts was
11   accidental; and at no point was he deprived of his actual
12   habeas petition. “[T]he usual problems inherent in being
13   incarcerated do not justify equitable tolling,” and the
14   conduct alleged by Rivera is not “far enough outside the
15   range of behavior that reasonably could be expected . . .
16   that [it] may be considered ‘extraordinary.’” Baldayaque,
17   338 F.3d at 152.
18
19        Rivera has also not shown that the difficulties he
20   faced prevented him from filing his petition on time. To be
21   eligible for equitable tolling, a petitioner must
22   “demonstrate a causal relationship between the extraordinary
23   circumstances on which the claim for equitable tolling rests
24   and the lateness of his filing, a demonstration that cannot
25   be made if the petitioner, acting with reasonable diligence,
26   could have filed on time notwithstanding the extraordinary
27   circumstances.” Valverde, 224 F.3d at 134. The district
28   court observed that Rivera still had a couple of weeks to
29   file before his § 2255 motion was due once he received the
30   requested documents. The court acted within its discretion
31   in concluding that this was enough time for Rivera to have
32   filed a timely, even if unpolished, petition. See Belot v.
33   Burge, 490 F.3d 201, 207-08 (2d Cir. 2007) (holding that it
34   was “within the court’s reasonable discretion” to conclude
35   that a petitioner was not entitled to equitable tolling
36   because he “ought reasonably to have begun his preparation
37   earlier and filed an unpolished--but timely--petition rather
38   than wait to file his more polished petition until the week
39   that the deadline expired.’” (internal quotation marks and
40   alterations omitted)).
41
42   [2] The district court did not abuse its discretion by
43   declining to hold an evidentiary hearing. See Chang v.
44   United States, 250 F.3d 79, 82 (2d Cir. 2001) (reviewing the

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 1   denial of a merits hearing under 28 U.S.C. § 2255 for abuse
 2   of discretion); see also Bolarinwa v. Williams, 593 F.3d
 3   226, 232 (2d Cir. 2010) (remanding to the district court to
 4   consider a petitioner’s equitable tolling claim and noting
 5   that “[t]he decision as to whether an evidentiary hearing is
 6   warranted is . . . consigned to the district court”). The
 7   record was sufficiently developed for the district court to
 8   conclude that the circumstances Rivera faced were not
 9   extraordinary and did not prevent him from filing a habeas
10   petition on time. Because an evidentiary hearing was not
11   necessary to determine that Rivera was ineligible for
12   equitable tolling, it was not an abuse of discretion for the
13   court to forgo one.
14
15        We have considered Rivera’s remaining arguments and
16   find them to be without merit. For the foregoing reasons,
17   the judgment of the district court is hereby AFFIRMED.
18
19
20
21                              FOR THE COURT:
22                              CATHERINE O’HAGAN WOLFE, CLERK
23




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