                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 27 2012

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




                            FOR THE NINTH CIRCUIT



JAMES WALTER WERBY,                              No. 11-35217

               Petitioner - Appellant,           D.C. No. 3:08-cv-01381-PK

  v.
                                                 MEMORANDUM *
MARK NOOTH,

               Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Oregon
                      Garr M. King, District Judge, Presiding

                            Submitted January 17, 2012 **

Before:        LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.

       Oregon state prisoner James Walter Werby appeals from the district court’s

judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have jurisdiction

under 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. Appellant. P. 34(a)(2).
      Werby contends that he is entitled to equitable tolling because of the

restrictive conditions under which he was incarcerated. Even assuming this alleged

deprivation was an “extraordinary circumstance,” equitable tolling is not warranted

because Werby failed to show that he exercised diligence in pursuing federal relief

or that extraordinary circumstances prevented the timely filing of his section 2254

petition. See Holland v. Florida, 130 S. Ct. 2549, 2562 (2010).

      Werby’s request that we remand for an evidentiary hearing is denied.

      AFFIRMED.




                                          2                                    11-35217
