                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 05 2010

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




                            FOR THE NINTH CIRCUIT



TERRANCE JAMES BURKE,                            No. 08-16187

              Petitioner - Appellant,            D.C. No. 2:06-cv-00459-FCD

  v.                                             MEMORANDUM *

MICHAEL MARTEL,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Frank C. Damrell, District Judge, Presiding

                          Submitted September 13, 2010 **

Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       California state prisoner Terrance James Burke appeals from the district

court’s judgment dismissing his 28 U.S.C. § 2254 petition as untimely. 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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Burke contends that he was entitled to equitable tolling due to his reliance on

Dictado v. Ducharme, 244 F.3d 724, 726, 727-28 (9th Cir. 2001), abrogated by

Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005). In the alternative, Burke seeks an

evidentiary hearing on his claim to equitable tolling.

      Reliance on circuit precedent subsequently overruled by the Supreme Court

can constitute an extraordinary circumstance that may warrant equitable tolling.

See Harris v. Carter, 515 F.3d 1051, 1054, 1057 (9th Cir. 2008); see also

Townsend v. Knowles, 562 F.3d 1200, 1205-06 (9th Cir. 2009). In order to

establish entitlement to such tolling, however, Burke must show that he was

diligent in pursuing post-conviction relief. See Holland v. Florida, — U.S. —, 130

S. Ct. 2549, 2562 (2010).

      Burke contends that he was diligent in pursuing his state post-conviction

remedies, given personal and health problems, as well as constraints on his law

library access. Accepting as true that Burke in fact relied on Dictado, and crediting

the veracity of his explanations for delays in filing each of his three state habeas

petitions, Burke nonetheless fails to demonstrate the requisite diligence. In

particular, Burke fails to account for periods of time during which he was

unimpeded by the burdens that he cites as justifying the lengthy delays between

filings. The district court did not abuse its discretion in denying an evidentiary


                                           2                                     08-16187
hearing on the tolling question, as the facts, even if established as true, do not

demonstrate the necessary diligence. Cf. Harris, 515 F.3d at 1052-54; Townsend,

562 F.3d at 1203.

      Absent equitable tolling, Burke’s federal habeas petition was filed two years

and nine months beyond the AEDPA deadline. Accordingly, the district court’s

judgment dismissing his petition as untimely was correct.

      We construe Burke’s additional contentions with respect to Thorson v.

Palmer, 479 F.3d 643 (9th Cir. 2007), and In re Robbins, 18 Cal. 4th 770 (Cal.

1998), as a motion to expand the certificate of appealability, and we deny the

motion. See Newdow v. Lefevre, 598 F.3d 638, 644 (9th Cir. 2010).

      AFFIRMED.




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