                                                                             FILED
                     UNITED STATES COURT OF APPEALS                           NOV 10 2010

                                                                         MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                          U.S . CO U RT OF AP PE A LS




BILLY JO LYNN HEMENWAY,                           No. 09-35245

              Petitioner - Appellant,             D.C. No. 3:07-cv-05634-RBL
                                                  Western District of Washington
  v.

STATE OF WASHINGTON and JEFF                      ORDER
UTTECHT,

              Respondents - Appellees.




Before:      B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

       The panel has voted to grant the petition for panel rehearing.

       The memorandum disposition filed on August 2, 2010, is withdrawn. A

replacement memorandum disposition will be filed concurrently with this order.

       Appellant shall have 14 days from the date judgment is entered to file a

petition for rehearing. See Fed. R. App. P. 40. If appellant files a petition for

rehearing, the state may file an answer within 14 days thereafter, whereupon the

matter shall be deemed submitted.




                                                                                   09-35245
                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 10 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



BILL JO LYNN HEMENWAY,                           No. 09-35245

               Petitioner - Appellant,           D.C. No. 3:07-cv-05634-RBL

  v.
                                                 MEMORANDUM *
STATE OF WASHINGTON and JEFF
UTTECHT,

               Respondents - Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Ronald B. Leighton, District Judge, Presiding

                                                         **
                               Submitted July 21, 2010

Before:        B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

       Washington state prisoner Billy Jo Lynn Hemenway appeals from the

district court's judgment dismissing his 28 U.S.C. y2254 petition as untimely. We

have jurisdiction under 28 U.S.C. y2253(a), 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. App. P. 34(a)(2).
      Hemenway contends that he was entitled to equitable tolling of AEDPA's

statute of limitations due to his dyslexia and illiteracy. This court reviews de novo

a district court's order denying a habeas petition on statute of limitations grounds.

Randle v. Crawford, 604 F.3d 1047, 1052 (9th Cir. 2010). The denial of an

evidentiary hearing in connection with a claim of entitlement to equitable tolling is

reviewed for abuse of discretion. See Mendoza v. Carey, 449 F.3d 1065, 1068 (9th

Cir. 2006).

      Excluding the time during which his state petitions were properly pending,

see 28 U.S.C. y2244(d)(2), Hemenway's federal petition was filed more than a

year beyond AEDPA's one-year statute of limitations. See 28 U.S.C. y2244(d)(1).

      A litigant seeµing equitable tolling of AEDPA's statute of limitations bears

the burden of establishing his entitlement to such tolling. Mendoza, 449 F.3d at

1068. In this case, Hemenway has not shown that his literacy limitations caused

his delay in filing his federal habeas petition. Indeed, he was able to file state and

federal pleadings, and participate actively in his own representation both at his trial

and on his direct appeal.

      The district court did not abuse its discretion in denying Hemenway's

request for an evidentiary hearing. See Mendoza, 449 F.3d at 1068.

      AFFIRMED.


                                                                                 09-35245
