                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 02 2010

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




                             FOR THE NINTH CIRCUIT



 MANUEL JOSEPH TRUJILLO,                          No. 08-15045

               Petitioner - Appellant,            D.C. No. 05-cv-02251-JKS

   v.

 DARRELL G. ADAMS, Warden,                        MEMORANDUM *

               Respondent - Appellee.



                     Appeal from the United States District Court
                        for the Eastern District of California
                     James K. Singleton, District Judge, Presiding

                            Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        California state prisoner Manuel Joseph Trujillo appeals from the district

court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We

have jurisdiction pursuant to 28 U.S.C. § 2253, 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).

JC/Research
        Trujillo contends he is entitled to equitable tolling because his state appellate

counsel’s failure to exhaust a federal claim before the California Supreme Court,

despite assurances she would do so, prevented the timely filing of his federal

habeas petition and that circumstance was beyond his control. We agree with the

district court that counsel’s omission was more akin to ordinary negligence than an

egregious omission. See Miranda v. Castro, 292 F.3d 1063, 1068 (9th Cir. 2002);

cf. Spitsyn v. Moore, 345 F.3d 796, 800 (9th Cir. 2003). Further, the record shows

that Trujillo received, shortly before it was filed, a copy of the petition for review

appellate counsel filed with the California Supreme Court. Thus, Trujillo’s

contention fails. See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

        Trujillo also contends we should remand to the district court for an

evidentiary hearing on the availability of equitable tolling. This contention lacks

merit. See Tapia v. Roe, 189 F.3d 1052, 1056 (9th Cir. 1999).

        We deny Trujillo’s request to expand the certificate of appealability to

include his claim that his first federal habeas petition was improperly dismissed as

unexhausted. See Hiivala v. Wood, 195 F.3d 1098, 1103-05 (9th Cir. 1999)

(per curiam).

        AFFIRMED.




JC/Research                                  2                                     08-15045
