                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                          OCT 20 2014

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

LAWRENCE E. SCHWIGER,                            No. 13-15564

              Petitioner - Appellant,            D.C. No. 3:09-cv-00454-LRH-
                                                 VPC
  v.

JACK PALMER; ATTORNEY                            MEMORANDUM*
GENERAL OF THE STATE OF
NEVADA,

              Respondents - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                      Argued and Submitted October 7, 2014
                            San Francisco, California

Before: O’SCANNLAIN, THOMAS, and McKEOWN, Circuit Judges.

       Lawrence Schwiger appeals the dismissal of his 28 U.S.C. § 2254 habeas

corpus petition. Dismissal of a habeas petition on timeliness grounds is reviewed

de novo, Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010), as is equitable tolling



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
where the facts are undisputed, Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.

2003). We have jurisdiction pursuant to 28 U.S.C. § 2253, and affirm.

      As counsel acknowledged during argument, Schwiger’s claim that the

district judge should have affirmatively advised him to file a new petition is

foreclosed by Pliler v. Ford, 542 U.S. 225, 231 (2004) (“Requiring district courts

to advise a pro se litigant in such a manner would undermine district judges’ role

as impartial decisionmakers.”).

      We expand the certificate of appealability to include the issue of whether

equitable tolling is warranted on the grounds that the district court affirmatively

misled Schwiger. Under the circumstances presented here, Schwiger was not

misled and no “extraordinary circumstance stood in his way” to prevent timely

filing. Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005)).1

      AFFIRMED.




      1
            Because he is represented by counsel, we decline to entertain
Schwiger’s pro se motion to take judicial notice. See United States v. Bergman,
813 F.2d 1027, 1030 (9th Cir. 1987).
                                           2
