                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 07 2012

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




                             FOR THE NINTH CIRCUIT



ANDERSON P. THURSTON,                            No. 10-16142

               Petitioner - Appellant,           D.C. No. 2:08-cv-02280-LKK-
                                                 GGH
  v.

JAMES YATES,                                     MEMORANDUM *

               Respondent - Appellee.



                   Appeal from the United States District Court
                       for the Eastern District of California
                Lawrence K. Karlton, Senior District Judge, Presiding

                      Argued and Submitted September 1, 2011
                             San Francisco, California

Before: FISHER and RAWLINSON, Circuit Judges, and MILLS, Senior District
Judge.**

       Appellant Anderson Thurston (Thurston) challenges the district court’s

dismissal of his habeas petition as untimely. Thurston contends that he was

entitled to additional equitable tolling.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Richard Mills, Senior District Judge for the United
States District Court for Central Illinois, sitting by designation.
      1. The state’s argument that Thurston’s federal habeas petition is

procedurally barred was not raised in the district court. Rather than determining

whether the state’s reason for failing to raise procedural default meets the

extraordinary circumstances standard, we review Thurston’s claims on the merits.

See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002).




      2. Thurston agrees with the district court’s grant of equitable tolling for the

period between August 9, 2006 and June 30, 2008. However, Thurston argues that

the district court erred in not granting equitable tolling between June 30, 2008 and

September 23, 2008.

      A habeas petitioner is eligible for equitable tolling when he diligently

pursues his federal rights, and is nevertheless incapable of filing a timely federal

habeas petition because of extraordinary circumstances. See Lakey v. Hickman,

633 F.3d 782, 784 (9th Cir. 2011), as amended. Additionally, there must be a

causal link between the extraordinary circumstances and the inability to file a

timely petition. See id. at 786. The diligence required for equitable tolling does

not have to be maximum feasible diligence, but rather reasonable diligence. See

Holland v. Florida, 130 S. Ct. 2549, 2565 (2010). An appellant may be entitled to

equitable tolling during a period when the appellant has no access to his legal files,


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and such deprivation made it impossible to timely file the appellant’s habeas

petition. See Ramirez v. Yates, 571 F.3d 993, 1000-01 (9th Cir. 2009).

      The magistrate judge found that Thurston was not diligent in filing his

federal habeas petition because at the point he learned that his state supreme court

habeas petition had been denied, he filed a petition for rehearing in the state court

rather than filing a federal habeas petition. Unfortunately, Thurston’s attempt to

preserve his federal claims by filing in state court does not warrant equitable

tolling. See Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1012-13 & n.3 (9th Cir.

2009). Moreover, ignorance of the law does not warrant equitable tolling. See

Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir. 1986).

      That Thurston was in administrative segregation for thirty-two days with no

access to his legal files does not change the outcome. Even allowing for these

thirty-two days, there remains a gap of fifty-three days. Therefore, the district

court did not err in granting defendant’s motion to dismiss, because Thurston’s

habeas petition was barred by the one-year statute of limitations contained in the

Antiterrorism and Effective Death Penalty Act. See 28 U.S.C. § 2244(d)(1).

      AFFIRMED.




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