                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 19 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ARTHUR FRANKLIN KNOX,                           No.    16-56149

                Petitioner-Appellant,           D.C. No.
                                                2:15-cv-01631-GHK-KES
 v.

DEBBIE ASUNCION, Warden,                        MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Central District of California
                    George H. King, District Judge, Presiding

                           Submitted February 5, 2019**
                              Pasadena, California

Before: GOULD, NGUYEN, and OWENS, Circuit Judges.

      Petitioner Arthur Franklin Knox appeals from the district court’s dismissal

of his petition for writ of habeas corpus as untimely. Knox bore the burden of

showing that he was eligible for enough tolling to render his petition timely. See

Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). We issued a certificate of


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
appealability to determine Knox’s eligibility for statutory and equitable tolling.

Because the district court did not err in finding that Knox’s petition was untimely,

we affirm.

       “AEDPA’s one-year statute of limitations in [28 U.S.C.] § 2244(d)(1)

applies to each claim in a habeas application on an individual basis.” Mardesich v.

Cate, 668 F.3d 1164, 1171 (9th Cir. 2012). The statutory tolling provision

provides tolling while a “properly filed application for State post-conviction or

other collateral review with respect to the pertinent judgment or claim is pending.”

28 U.S.C. § 2244(d)(2) (emphasis added). Equitable tolling is similarly analyzed

on a claim-by-claim basis, depending on the underlying circumstances that gave

rise to equitable tolling. See, e.g., Butler v. Long, 752 F.3d 1177, 1181 (9th Cir.

2014) (remanding for the district court to analyze which claims were eligible for

equitable tolling because they were improperly dismissed by the district court).

       In his federal habeas petition, which he filed 78 days late, Knox challenged

his state conviction on three grounds: (1) insufficiency of the evidence (“Claim

One”), (2) ineffective assistance of counsel (“Claim Two”), and (3) deprivation of

his right to a fair trial by the trial court’s failure to dismiss a juror with limited

English proficiency (“Claim Three”). The district court found statutory tolling as

to Claims Two and Three—while the California Supreme Court reviewed Knox’s

last state habeas petition—because neither of these claims had been deemed


                                             2
procedurally defaulted in state post-conviction proceedings.1 Statutory tolling thus

covers the 72-day period from September 10, 2014 to November 25, 2014, and that

time “shall not be counted toward any period of limitation.” See 28 U.S.C. §

2244(d)(2).

      As to the remaining limitations period beginning November 26, 2014, the

district court did not err in finding that equitable tolling did not apply. Knox

argues that equitable tolling should apply while he was in administrative

segregation from October 10, 2014, until January 21, 2015, because he did not

have access to all of his legal files during that time. We assume without deciding

that this situation would qualify as an “extraordinary circumstance” for purposes of

equitable tolling. See, e.g., Lott v. Mueller, 304 F.3d 918, 924 (9th Cir. 2002).

      However, the period until November 25, 2014, was already excluded from

the limitations period by statutory tolling. For the remaining period, from

November 26, 2014, until Knox was released from administrative segregation on

January 21, 2015, the district court did not clearly err in finding that Knox failed to

exercise reasonable diligence in requesting his missing legal files. Evidence in the

record established a “prison policy that property requests made by an inmate in


      1
        Although the state argues on appeal that the district court erred in assessing
Knox’s arguments on a claim-by-claim basis, and by granting statutory tolling to
two of his claims, they argued to the contrary in their motion to dismiss below.
Thus, to the extent there was error, the state has invited it. See United States v.
Reyes-Alvarado, 963 F.2d 1184, 1187 (9th Cir. 1992), as amended (June 15, 1992).

                                           3
administrative segregation must be submitted in writing,” although Knox argues

that exceptions had been made previously for other inmates. As the district court

noted, “[i]t is undisputed that Petitioner made one written request for legal

materials,” and that he could have, but chose not to, make follow-up requests.

Based on this record, we cannot say that the district court clearly erred by finding

that Knox did not exercise reasonable diligence.

      In sum, although 72 days of statutory tolling extended the limitations period

through February 19, 2015, for two of his claims, Knox’s petition was

constructively filed on February 26, 2015. Accordingly, it was untimely.

      AFFIRMED.




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