                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                              JUL 02 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

SERGEI V. KOROLEV,                              No. 08-16509

              Petitioner - Appellant,           D.C. No. 3:05-CV-04992-MMC

  v.
                                                MEMORANDUM*
ROBERT A. HOREL, Warden,

              Respondent - Appellee.


                  Appeal from the United States District Court
                     for the Northern District of California
               Maxine M. Chesney, Senior District Judge, Presiding

                       Argued and Submitted June 17, 2010
                            San Francisco, California

Before: HAWKINS, FISHER, and TYMKOVICH,** Circuit Judges.

       Sergei V. Korolev (“Korolev”) appeals the dismissal of his habeas petition as

untimely under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2244(d), claiming that either his petition was timely when


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
            The Honorable Timothy M. Tymkovich, United States Circuit Judge for
the Tenth Circuit, sitting by designation.
filed under existing Ninth Circuit precedent or that he is entitled to equitable tolling.

We affirm.

      The district court correctly held that the statute of limitations was not statutorily

tolled pursuant to Bunney v. Mitchell, 262 F.3d 973 (9th Cir. 2001). Although Bunney

held that a California Supreme Court decision denying a state habeas petition was not

final until thirty days after the decision was filed, it was based on a prior version of

the California Rules of Court. The California Rule was amended effective January 1,

2003, to make clear that a denial of a writ is final immediately upon filing. See Cal.

Rules of Court, Rule 8.532.

      Nor does Bunney justify equitable tolling of the statute. Korolev attempts to

rely on Harris v. Carter, 515 F.3d 1051 (9th Cir. 2008), in which we permitted

equitable tolling because the petitioner had waited in reliance on an existing Ninth

Circuit precedent that was overruled by the Supreme Court only after it became too

late for him to comply with the altered deadline. See Dictado v. Ducharme, 244 F.3d

724, 727-28 (9th Cir. 2001), overruled by Pace v. DiGulielmo, 544 U.S. 408, 417

(2005). In Harris, the underlying circuit precedent that was later overruled (Dictado)

was interpreting federal law; reliance on Dictado was reasonable because nothing

undercut its interpretation until the Supreme Court ruled in Pace. See Harris, 515

F.3d at 1055. Our decision in Bunney, however, turned entirely on state law. As


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noted above, these state rules were amended effective January 1, 2003 – nearly two

years before Korolev’s petition was filed – thus undermining the basis of Bunney.

Cal. Rules of Court, Rule 8.532(b)(2)(C); see Corjasso v. Ayers, 278 F.3d 874, 880

n.1 (9th Cir. 2002) (applying former rule because it was in effect at the time, but

recognizing proposed change in law).1 Despite the lack of “red-flag” or “yellow-flag”

treatment of Bunney by Westlaw or Lexis at the time of filing, because the change in

law had already occurred, any research into the basis of that opinion would have

revealed the change in the California rule. See Lawrence v. Florida, 549 U.S. 327,

336-37 (2007) (“Attorney miscalculation is simply not sufficient to warrant equitable

tolling, particularly in the postconviction context where prisoners have no

constitutional right to counsel.”); see also Holland v. Florida, No. 09-5327, 2010 WL

2346549, at *13-14 (U.S. June 14, 2010) (gross attorney misconduct might justify

equitable tolling, but not “garden variety” miscalculation of deadlines).

      Turning to Korolev’s other arguments for equitable tolling, “a litigant seeking

equitable tolling bears the burden of establishing two elements: (1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood in



      1
        Korolev argues that we later reaffirmed Bunney in an en banc decision, Allen
v. Lewis, 295 F.3d 1046 (9th Cir. 2002) (en banc); however, Allen was a 2002 case,
so the habeas petition was necessarily filed before the effective date of the new rule
and has no application here.

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his way.” Pace, 544 U.S. at 418. Whether the petitioner is proceeding pro se is

relevant, though “a pro se petitioner’s confusion or ignorance of the law is not, itself,

a circumstance warranting equitable tolling.” Waldron-Ramsey v. Pacholke, 556 F.3d

1008, 1013 n.4 (9th Cir. 2009).

      Here, although Korolev had not technically engaged his counsel to represent

him in the federal proceedings until after the federal petition was filed, he was

represented by the same counsel in filing his state petition and admits that this counsel

assisted in the preparation of the federal petition (preparing it, mailing it to him for

signature, and getting it filed). See Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th

Cir. 2003) (“When a lawyer prepares legal documents on behalf of a prisoner and

arranges for those documents to be signed and filed, the prisoner is not proceeding

without assistance of counsel.”). On this record, the district court did not err in

determining that Korolev was “proceeding with the assistance of counsel.”

      Korolev alleges that a number of factors collectively rendered him unable to

timely pursue his rights, including mental illness and an inability to communicate well

in English or to obtain Russian materials. Korolev has nonetheless not demonstrated

that these impediments were causally related to his untimely filing, especially because

Korolev did not personally prepare the petition. See Spitsyn v. Moore, 345 F.3d 796,

799 (9th Cir. 2003) (“The prisoner must show that the ‘extraordinary circumstances’


                                           4
were the cause of his untimeliness.” (emphasis added)). Korolev’s cursory allegations

of causation are belied by the record, in which counsel was able to file a state petition

one day before the expiration of the AEDPA limitations period. Korolev also

promptly signed and returned the federal petition prepared by counsel, and admitted

that he did provide input in connection with the habeas investigation and the petition.

The district court, which gave Korolev an opportunity to amend his petition to clarify

a connection between his disabilities and his untimely filing, correctly concluded that

Korolev’s alleged extraordinary circumstances did not in fact contribute to the

untimely filing and cannot serve as a basis for equitable tolling.

      AFFIRMED.




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