                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 20 2011

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




                            FOR THE NINTH CIRCUIT



ANTHONY TAYLOR,                                  No. 09-16917

              Petitioner - Appellant,
                                                 No. 2:05-cv-0860 JAM-GGH
  v.

C. EVANS, Warden,                                MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                      Argued and Submitted November 1, 2010
                             San Francisco, California

Before: GOULD and IKUTA, Circuit Judges, and MAHAN,** District Judge.

       Appellant Taylor raises three issues in this appeal: (1) whether the California

Court of Appeal erroneously concluded that he was not deprived of due process of

law when he was sentenced under the state’s “three strike” law based on a prior


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
serious felony conviction that he had not sustained; (2) whether the district court

erroneously dismissed his ineffective assistance of counsel claim as unexhausted;

and (3) whether the district court erroneously concluded that his juror misconduct

claim was not entitled to equitable tolling.

      Under the Antiterrorism and Effective Death Penalty Act of 1996, which

governs this matter, the reviewing court “must deny [the] petition unless the state

court’s adjudication of the claims resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law as

determined by the United States Supreme Court or was based on an unreasonable

determination of the facts in light of the evidence presented before the state

courts.” Bible v. Ryan, 571 F.3d 860, 869 (9th Cir. 2009) (citing 28 U.S.C. §

2254(d)).

      The court of appeal did not unreasonably apply clearly established Supreme

Court law (specifically, United States v. Tucker, 404 U.S. 1048 (1972) and

Townsend v. Burke, 334 U.S. 736 (1948)) when it rejected petitioner's due process

claim, because its conclusion that the sentencing court had not relied on the

disputed conviction in sentencing the defendant is not an unreasonable

determination of the facts in light of the evidence presented to it. 28 U.S.C. §

2254(d). This conclusion is supported by the sentencing court’s statement that it


                                           2
calculated Taylor’s criminal history “regardless” of the disputed conviction, and

that aside from the disputed conviction, Taylor had sustained three “strikes” or

felony convictions.

      Further, the district court did not err when it dismissed Taylor’s ineffective

assistance of counsel claim as unexhausted. Under Sandgathe v. Maass, 314 F.3d

371, 377 (9th Cir. 2002), the court need not decide if a claim was in fact brought if

it appears that the state court actually considered and decided it. To satisfy the

exhaustion requirement, Taylor must “fairly present” his federal claims to the state

courts. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan v. Henry, 513

U.S. 364, 365–66 (1995) (per curiam); Casey v. Moore, 386 F.3d 896, 911 (9th

Cir. 2004) (quoting Baldwin, 541 U.S. at 29).

      Claims are “fairly presented” in an attachment to the petition when the

petitioner submits “extensive argument in support of all [such] claims as well as

citations to [supporting] authority and to relevant parts of the record.”

Insyxiengmay v. Morgan, 403 F.3d 657, 669 (9th Cir. 2005).

      Taylor did not present an argument in support of his ineffective assistance

claim nor did he cite to requisite authority as required by Insyxiengmay. Id. Rather,

he simply attached a memorandum of the Sacramento County Superior Court to his

petition, which memorandum mentioned the claim.


                                           3
      Finally, the district court did not err when it concluded that Taylor was not

entitled to equitable tolling. Under Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003),

a petitioner is entitled to equitable tolling if there are “extraordinary

circumstances” that render the actions of counsel egregious, and not simply

negligent. Id. at 801. In that case, the failure of Spitsyn’s counsel to communicate

with, perform essential services for, and conduct basic research to aid his client

warranted equitable tolling. Id. at 800–02. Here, Taylor’s counsel had ample

communication with him, yet simply missed the deadline to file the petition.

      Holland v. Florida, 130 S. Ct. 2549 (2010), held that petitioner Holland was

entitled to equitable tolling due to his counsel’s failure to respond to letters from

him, to do any necessary research, to communicate with him over a period of

years, and ultimate neglect to inform him that the Supreme Court had decided his

case. The court distinguished Holland from cases such as the present case, by

stating that “a ‘garden variety claim of excusable neglect,’ such as simple

‘miscalculation’ that leads a lawyer to miss a filing deadline, does not warrant

equitable tolling.” Id. (internal citations omitted).

      Taylor’s counsel merely missed the deadline to file the petition. His conduct

did not rise to the level of egregious conduct, and his attempt take the blame for his

actions does not convince this court otherwise.


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AFFIRMED.




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