                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           NOV 05 2015
TENACE DEMOND KNIGHT,                            No. 11-17350           MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


              Petitioner - Appellant,            D.C. No. 4:10-cv-00276-SBA

 v.
                                                 MEMORANDUM*
CALIFORNIA DEPARTMENT OF
CORRECTIONS and ROBERT H.
TRIMBLE, Warden,

              Respondents - Appellees.



TENACE DEMOND KNIGHT,                            No. 14-16262

              Petitioner - Appellant,            D.C. No. 4:10-cv-00276-SBA

 v.

CALIFORNIA DEPARTMENT OF
CORRECTIONS and TIM V. VIRGA,
Warden,

              Respondents - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                  Saundra B. Armstrong, District Judge, Presiding

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                             Submitted October 19, 2015**
                               San Francisco, California

Before: THOMAS, Chief Judge and REINHARDT and McKEOWN, Circuit
Judges.

        Tenace Knight, a California State prisoner, appeals the district court’s

dismissal of his 28 U.S.C. § 2254 petition as untimely and the denial of his Federal

Rule of Civil Procedure 60(b)(6) motion for relief from judgment. Because the

parties are familiar with the facts and procedural history, we will not recount it

here.

        We have jurisdiction over this consolidated appeal pursuant to 28 U.S.C.

§§ 1291 and 2254. We review the district court’s dismissal of a habeas petition de

novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999), and denial of a Rule

60(b) motion for abuse of discretion, Foley v. Biter, 793 F.3d 998, 1001–02 (9th

Cir. 2015).

        Equitable tolling of the Antiterrorism and Effective Death Penalty Act’s

(AEDPA’s) one-year statute of limitations is appropriate if (1) extraordinary

circumstances beyond a petitioner’s control prevent timely filing and (2) the

petitioner pursues their rights with reasonable diligence. Luna v. Kernan, 784 F.3d



         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                            2
640, 646 (9th Cir. 2015). The extraordinary circumstance need only proximately

cause the untimely filing. Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir.

2003). Because the Ninth Circuit has adopted the stop-clock approach to

calculating equitable tolling, the diligence inquiry turns on whether the petitioner

was diligent during the extraordinary circumstance. Gibbs v. LeGrand, 767 F.3d

879, 892 (9th Cir. 2014). “Diligence after an extraordinary circumstance is lifted

may be illuminating as to overall diligence, but is not alone determinative.” Id.

      An extraordinary circumstance may exist if a petitioner mistakenly files their

petition in the wrong forum within the limitations period. See Burnett v. N.Y. Cent.

R.R. Co., 380 U.S. 424, 434 (1965); Oltman v. Holland Am. Line, Inc., 538 F.3d

1271, 1280 (9th Cir. 2008). Such an extraordinary circumstance existed in this

case. Knight was instructed by prison officials to send his federal habeas petition

to the state court in which he was convicted. He was told that the state court would

forward the petition to the proper forum. He did as instructed, operating under the

mistaken belief that the state court was the proper place to file the petition. It was

not until 44 days later, when Knight received the petition back from the state court,

that Knight realized the error.

      Knight was also reasonably diligent throughout the limitations period.

Because Knight thought he had properly filed his petition, it was reasonable to stop


                                           3
pursuing further remedies. Knight was thus diligent during the extraordinary

circumstance. Furthermore, Knight was diligent throughout the time of properly

filing the petition. As a prisoner in Administrative Segregation working full time,

it was nearly impossible for Knight to access the prison law library. Despite these

limitations, Knight attempted to access the law library and obtain the proper court

address on multiple occasions.

      Given Knight’s diligence through the time of filing, the extraordinary

circumstance proximately caused the late filing. Because the statute of limitations

clock stopped for the 44 days Knight’s petition was with the state court, the

petition—which would otherwise have been untimely by 28 days—was filed 16

days before the statute of limitations expired.

      REVERSED.




                                           4
                                                                             FILED
Knight v. CDC, Nos. 11-17350, 14-16262
                                                                              NOV 05 2015
MCKEOWN, J., dissenting:                                                  MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


      I respectfully dissent. The crux of Knight’s complaint is that he

inadvertently sent his 28 U.S.C. § 2254 habeas petition to state court, not federal

court, and consequently is entitled to equitable tolling. He admits that “the original

instructions that came with the petition forms had the federal court address on

them,” but states that “unfortunately, I overlooked that when I sent my petition.”

What occurred here cannot satisfy the requirement of “extraordinary circumstances

beyond a prisoner’s control [that] make it impossible to file a petition on time.”

Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013) (citation omitted) (first

emphasis added). His oversight, while unfortunate, is not an extraordinary

circumstance but simply amounts to garden-variety negligence. See Holland v.

Florida, 560 U.S. 631, 651-52 (2010) (“[A] garden variety claim of excusable

neglect, such as a simple ‘miscalculation’ that leads a lawyer to miss a filing

deadline, does not warrant equitable tolling.”) (citations omitted); Waldron-

Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009) (noting that mere

“oversight, miscalculation or negligence on [the petitioner’s] part . . . preclude[s]

the application of equitable tolling” (citation omitted)).

      Knight’s admission that the correct address was on the forms also

undermines his excuse that a prison employee told him to mail his petition to state
court. Not only did Knight not know who allegedly told him the wrong address,

his declaration twice referred to the claimed deputy as a male. He said it might

have been Deputy Munoz, but Rebecca Munoz is a female floor officer. There is

no admissible evidence to support Knight’s claim that he received erroneous

advice from a prison official. Taken together, the allegations and evidence do not

establish extraordinary circumstances. I would affirm the district court and deny

Knight’s request for equitable tolling.
