                                                                              FILED
                           NOT FOR PUBLICATION                                APR 28 2014

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



                            FOR THE NINTH CIRCUIT


JOHN EDWARD SZABO,                               No. 11-17586

              Petitioner - Appellant,            D.C. No. 2:10-cv-02608-GMS

  v.
                                                 MEMORANDUM*
CHARLES L. RYAN and ATTORNEY
GENERAL OF THE STATE OF
ARIZONA,

              Respondents - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                     G. Murray Snow, District Judge, Presiding

                        Argued and Submitted April 7, 2014
                            San Francisco, California

Before: KLEINFELD, NGUYEN, and WATFORD, Circuit Judges.

       Petitioner John Szabo filed his federal habeas corpus petition well outside

the one-year statute of limitations established by 28 U.S.C. § 2244. He contends




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                            Page 2 of 3
that we should nonetheless deem his petition timely because he is entitled to

equitable tolling of the limitations period.

      Even if Szabo is entitled to equitable tolling for the period through October

28, 2008, we conclude he is not entitled to equitable tolling beyond that date. On

that date, the state trial court appointed new postconviction counsel for Szabo. The

court also ruled that Szabo had been dilatory in pursuing his first state

postconviction petition, and noted there had been a “failure to timely file a petition

for review.” That ruling put Szabo on notice that any further attempts to pursue the

claims asserted in his first state postconviction petition—either in the state trial

court or the state court of appeals—might be deemed untimely, therefore depriving

him of statutory tolling. See 28 U.S.C. § 2244(d)(2).

      Szabo thereafter diligently pursued a successive state postconviction petition

in an attempt to exhaust his state court remedies. But Szabo did not act with

reasonable diligence in pursuing federal habeas corpus relief. Szabo could have

filed a “protective” federal habeas corpus petition and asked the federal court to

stay proceedings while he exhausted his federal claims in state court. The Supreme

Court has specifically noted that this procedure is available to a state prisoner faced

with uncertainty about whether his state postconviction petition is “properly filed”

for purposes of statutory tolling. See Pace v. DiGuglielmo, 544 U.S. 408, 416
                                                                             Page 3 of 3
(2005). And, in circumstances similar to those faced by Szabo here, we have held

that a state prisoner’s failure to file a protective federal petition “does not

demonstrate the diligence required for application of equitable tolling.” White v.

Martel, 601 F.3d 882, 884–85 (9th Cir. 2010) (per curiam).

      Szabo waited more than two years after the state court’s October 28, 2008,

ruling before he filed his federal habeas corpus petition. That is far longer than the

eleven-month delay we held showed a lack of diligence on the part of the petitioner

in White. See id. Szabo’s lengthy delay in filing his federal petition may have

been due to the erroneous advice of his state postconviction counsel. But attorney

error of that nature does not excuse Szabo’s lack of diligence in failing to file

earlier. See Lawrence v. Florida, 549 U.S. 327, 336–37 (2007).

      AFFIRMED.
