                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 02 2010

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




                            FOR THE NINTH CIRCUIT



DELBERT GREENE,                                  No. 08-16555

              Petitioner-Appellant,              D.C. No. 2:07-cv-0092-LRH-LRL

  v.
                                                 MEMORANDUM *
E. K. McDANIEL, WARDEN,

              Respondent-Appellee.



                   Appeal from the United States District Court
                            for the District of Nevada
                    Larry R. Hicks, District Judge, Presiding

                             Submitted May 14, 2010 **
                              San Francisco, California

Before: HUG and McKEOWN, Circuit Judges, and FAWSETT, Senior District
Judge.***




        *
             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).
        ***
             The Honorable Patricia C. Fawsett, Senior United States District
Judge for the Middle District of Florida, sitting by designation.
      We must determine whether the district court properly dismissed the 28 U.S.C.

§ 2254 petition of Appellant Delbert Greene as untimely and whether Greene is

entitled to equitable tolling on the ground that the district court erred when it

dismissed his earlier, timely filed habeas petition in Greene v. Nevens, 2:06-cv-1009-

RCJ-RJJ (D. Nev.) (“Nevens II”).

      Because Greene filed his federal habeas petition after April 24, 1996, the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) governs this case. See,

e.g., Juan H. v. Allen, 408 F.3d 1262, 1270 (9th Cir. 2005). “We review de novo a

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

Randle v. Crawford, 578 F.3d 1177, 1181 (9th Cir. 2009). Because the parties do not

dispute any of the facts in the record, we also review the district court’s decision to

deny equitable tolling de novo. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).

      Greene filed the habeas petition in this case beyond the one-year AEDPA

limitations period under 28 U.S.C. § 2244(d)(1). However, the limitations period may

be equitably tolled if Greene shows that: (1) he pursued his rights diligently, and (2)

some extraordinary circumstances stood in his way. Ramirez v. Yates, 571 F.3d 993,

997 (9th Cir. 2009).

      Greene first asserts that extraordinary circumstances exist because the district

court in Nevens II erroneously dismissed his timely filed amended habeas petition for


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failing to comply with the order dated December 13, 2006 (“December 13 Order”),

which required him to state all of his claims within the body of a habeas petition form,

rather than asserting additional claims in an attached memorandum.                 The

memorandum attached to Greene’s amended petition form did not comply with the

court’s instruction because the claims contained in the memorandum, unlike the

claims asserted in the form itself, were not verified under penalty of perjury.

Notwithstanding Greene’s alleged “misunderstanding” of the December 13 Order, it

was not beyond his control to have complied with it. See Ford v. Pliler, 590 F.3d 782,

789 (9th Cir. 2009) (holding that a “petitioner’s misunderstanding of accurate

information cannot merit relief”). Therefore, the December 13 Order dismissing

Greene’s amended petition in Nevens II is not an extraordinary circumstance justifying

equitable tolling.

      Greene argues that the order of the district court in Nevens II dated January 11,

2007 (“January 11 Order”) was affirmatively misleading and thus an extraordinary

circumstance justifying equitable tolling.     He asserts first that the Order was

misleading because it imposed a dismissal “without prejudice” after the one-year

AEDPA limitations period had expired. This argument is unavailing and was squarely

rejected by this Court in Ford. Id. at 788-89. He next contends that the language in

the January 11 Order which directed him to file a new petition in a new action with


                                           3
a new application to proceed in forma pauperis was affirmatively misleading because

the statute of limitations had expired. However, the January 11 Order did not direct

Greene to take any action whatsoever. It simply notified the parties that dismissal of

the petition was “without prejudice to the filing of a new petition in a new action with

a new application to proceed in forma pauperis.” Because there was no affirmative

misstatement, Greene was not affirmatively misled. See id. at 788.

       Greene maintains that numerous hurdles he encountered in attempting to secure

habeas relief proceeding pro se could have been avoided if he had he been afforded

counsel. He does not identify any particular circumstance, other than the general

denial of counsel, that would constitute an exceptional circumstance. The absence of

counsel, without more, is not an exceptional circumstance warranting equitable

tolling. Miranda v. Castro, 292 F.3d 1063, 1068 (9th Cir. 2002).

       Finally, Greene argues that his lack of access to state court transcripts justifies

both equitable tolling and statutory tolling pursuant to 28 U.S.C. § 2244(d)(1)(B).

Because all of the issues raised in his untimely habeas petition were raised in his prior

timely filed habeas petitions, Greene’s inability to obtain state court transcripts did not

cause the untimeliness of his petition. See Ford, 590 F.3d at 790 (“[Petitioner’s]

alleged inability to access [his legal files] cannot be ‘the cause of his untimeliness’

since he did not need the legal materials they contained to file a timely habeas


                                            4
petition.” (quoting Bryant v. Ariz. Atty. Gen., 499 F.3d 1056, 1061 (9th Cir. 2007))).

Because equitable tolling does not apply, statutory tolling under 28 U.S.C. §

2244(d)(1)(B) is precluded. Roy v. Lampert, 465 F.3d 964, 972 n.3 (9th Cir. 2006).

      Finding no extraordinary circumstances warranting equitable tolling, we need

not determine whether Greene demonstrated diligence in filing his untimely petition.

      JUDGMENT AFFIRMED.




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