                                                                             FILED
                            NOT FOR PUBLICATION                               OCT 27 2011

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




                            FOR THE NINTH CIRCUIT



JAMES RICHARD PORTER,                            No. 09-15871

              Petitioner-Appellant,              D.C. No. CV-08-157-AWI-TAG

  v.
                                                 MEMORANDUM *
ROBERT A. HOREL, Warden,

              Respondent-Appellee.


                    Appeal from the United States District Court
                        for the Eastern District of California
                     Anthony W. Ishii, District Judge, Presiding

                      Argued and Submitted October 12, 2011
                            San Francisco, California

Before: THOMAS and MURGUIA, Circuit Judges, and ALBRITTON, Senior
District Judge.**

       California state prisoner James Richard Porter (“Porter”) appeals the district

court’s dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus as

untimely.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable William H. Albritton, III, Senior District Judge for the
U.S. District Court for Middle Alabama, Montgomery, sitting by designation .
       Porter does not dispute that his petition was filed outside of the one-year

statute of limitations of the Antiterrorism and Effective Death Penalty Act

(“AEDPA”). See 28 U.S.C. § 2244(d). Porter argues that the statute of limitations

should be tolled, or that he is entitled to an evidentiary hearing to allow him to

establish the requirements for equitable tolling. Because the history and facts of

the case are familiar to the parties, we need not recount them here.

       We affirm the district court’s denial of Porter’s petition as untimely, and the

district court’s denial of an evidentiary hearing. A district court’s denial of habeas

corpus for untimeliness is reviewed de novo. Laws v. Lamarque, 351 F.3d 919,

922 (9th Cir. 2003). Although Porter originally argued in his brief for both

statutory and equitable tolling of the statute of limitations in this case, he later

narrowed his grounds for relief to only equitable tolling. Equitable tolling may be

established when a petitioner can show “(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way.”

Holland v. Florida, 130 S. Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo,

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

       Based on the extensive medical evidence in the record, and the evidence that

Porter made filings in state court at various points during the several-year period of

time after the conclusion of his original state court case, we cannot conclude that



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Porter has demonstrated that he was mentally incapable of meeting his federal

filing deadline. Therefore, Porter has not demonstrated that his mental illness

made filing impossible so as to constitute an extraordinary circumstance beyond

his control to allow for equitable tolling. See Laws, 351 F.3d at 922-23. In

addition, we cannot conclude that any attorney misconduct reflected in the record

could have tolled the statute of limitations for a sufficient period of time so as to

render Porter’s federal petition timely. See Spitsyn v. Moore, 345 F.3d 796,

800–01 (9th Cir. 2003).

      Porter contends that if equitable tolling has not been established based on the

evidence in the record, he should have been given an evidentiary hearing to

establish equitable tolling. A district court’s failure to hold an evidentiary hearing

is reviewed for abuse of discretion. Roberts v. Marshall, 627 F.3d 768, 773 (9th

Cir. 2010), cert. denied, No. 11-5243, 2011 WL 4535775 (U.S. Oct. 3, 2011).

      Porter has failed to allege facts which he would have presented at an

evidentiary hearing which are not already in the record. Because he has not made

“a good-faith allegation that would, if true, entitle him to equitable tolling,” Laws,

351 F.3d at 921, he has not shown that he is entitled to an evidentiary hearing. See

Roberts, 627 F.3d at 773 (upholding denial of evidentiary hearing where medical

evidence did not support a finding that incompetence was a cause of untimeliness



                                            3
and petitions were filed in state court during the limitations period).

      Accordingly, the district court’s decision not to provide Porter with an

evidentiary hearing and the denial of Porter’s petition as untimely are

AFFIRMED.




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