                                                                                            FILED
                                    NOT FOR PUBLICATION                                      APR 05 2012

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




                                    FOR THE NINTH CIRCUIT



 PHILLIP C. SANDERS,                                                No. 10-56652

                    Petitioner-Appellant,                           D.C. No. 2:07-cv-06494-DDP-
                                                                    CW
      v.
                                                                    MEMORANDUM *
 JAMES E. TILTON, Warden,

                    Respondent-Appellee.


                              Appeal from the United States District Court
                                 for the Central District of California
                              Dean D. Pregerson, District Judge, presiding

                                        Submitted April 4, 2012**
                                          Pasadena, California

Before:           WARDLAW, Circuit Judge, BERZON, Circuit Judge, and WHYTE,*** District
                  Judge.




           Petitioner Phillip C. Sanders appeals the district court’s dismissal of his petition under 28



  *
      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
  **
      Pursuant to Fed. R. App. Proc. 34(a)(2)(c), the panel unanimously finds this
matter appropriate for submission without oral argument.
  ***
      The Honorable Ronald M. Whyte, United States District Judge for the
Northern District of California, sitting by designation.
U.S.C. § 2254 as untimely. We must determine (1) whether petitioner is entitled to equitable

tolling on the ground that he was “abandoned” by his attorney while pursuing a previous habeas

petition and (2) whether the district court erred in denying petitioner an evidentiary hearing on

the equitable tolling issue.

        A district court’s dismissal of a federal habeas petition on statute of limitations grounds

is reviewed de novo, and denial of an evidentiary hearing is reviewed for abuse of discretion.

Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir. 2006) (citing United States v. Sandoval-Lopez,

409 F.3d 1193, 1195 (9th Cir. 2005)).

        The parties do not dispute that the one-year period which petitioner had to file his federal

habeas petition expired in 1997, more than ten years before he filed. See 28 U.S.C. §

2244(d)(1)-(2). However, a petitioner may be entitled to equitable tolling if he can show “‘(1)

that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance

stood in his way’ and prevented timely filing.” Holland v. Florida, 130 S. Ct. 2549, 2562, 177

L. Ed. 2d 130, 145 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

        Petitioner asserts that extraordinary circumstances existed because an attorney retained to

pursue habeas relief on his behalf in the late 1990s committed professional misconduct that

resulted in the dismissal of a previous federal habeas petition as “mixed” in 1999, forfeiting

several otherwise timely and exhausted claims. Petitioner relies on Holland v. Florida, in which

the Supreme Court held that an attorney’s failure to file a federal habeas petition despite his

client’s request to do so or respond to his client’s letters and phone calls seeking information

could “create an extraordinary circumstance that warrants equitable tolling.” Holland, 130 S. Ct.

at 2563; see also Porter v. Ollison, 620 F.3d 952, 960 (9th Cir. 2010) (interpreting Holland to

treat “violations of canons of professional responsibility” as evidence that attorney’s conduct
was “extraordinary”).

        However, Holland did not hold that attorney misconduct alone could justify equitable

tolling where the petitioner himself did not diligently pursue his rights. Indeed, the Court

explicitly found that the petitioner’s repeated attempts to contact his attorney or have him

removed from the case indicated a diligent effort to avoid the running of the statute of limitations.

See Holland, 130 S. Ct. at 2565. More importantly, the Court noted that the “very day that [the

petitioner] discovered that his AEDPA clock had expired due to [the attorney’s] failings, [the

petitioner] prepared his own habeas petition pro se and promptly filed it with the District Court.”

Id. Holland thus reaffirmed the rule that in addition to demonstrating extraordinary

circumstances, a petitioner seeking equitable tolling must show that he has exhibited “reasonable

diligence” in pursuing his rights. See id. (citing Lonchar v. Thomas, 517 U.S. 314, 326 (1996)).

       In contrast to Holland, petitioner here asserts that he learned of the district court’s

dismissal of his initial petition “on or around August 2000,” yet did not file the instant petition

until October 2007. Such a substantial delay in renewing petitioner’s habeas claims in federal

court does not reflect reasonable diligence. See Guillory v. Roe, 329 F.3d 1015, 1018 (9th Cir.

2003) (finding that where a district court dismisses a petition as “mixed,” the relevant measure of

diligence is “how quickly a petitioner sought to exhaust the claims dismissed as unexhausted, and

how quickly he returned to federal court after doing so”). Petitioner’s pro se pursuit of other legal

remedies between 2000 and 2004–including the filing of two civil suits against his attorney and a

habeas claim asserting actual innocence in state court–underscores his lack of diligence because it

indicates that petitioner was capable of both evaluating his attorney’s performance and filing a

habeas petition on his own. See Doe v. Menefee, 391 F.3d 147, 175 (2d Cir. 2004) (Sotomayor, J.)

(“In the attorney incompetence context, . . . the reasonable diligence inquiry focuses on the . . .
[petitioner’s] ability to evaluate the lawyer’s performance . . . and his ability to comprehend legal

materials and file the petition on his own.”). Accordingly, we conclude that petitioner failed to

exercise reasonable diligence in filing his untimely petition, and is therefore not entitled to

equitable tolling.

       Petitioner next argues that the district court erred in failing to hold an evidentiary hearing

on the issue of whether he was entitled to equitable tolling. A habeas petitioner “should receive an

evidentiary hearing when he makes ‘a good-faith allegation that would, if true, entitle him to

equitable tolling.’” Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (quoting Laws v.

LaMarque, 351 F.3d 919, 919 (9th Cir. 2003)) (emphasis omitted). Thus, in order to merit an

evidentiary hearing, a petitioner must first make “sufficient allegations of diligence.” Roy, 465

F.3d at 969. Given that petitioner concedes that he made no effort to renew his habeas claims in

state court until 2004 or federal court until 2007, we find that the district court did not abuse its

discretion in determining that petitioner failed to make sufficient allegations of diligence to

warrant an evidentiary hearing.

       In addition, we deny Sanders’s motion to expand the Certificate of Appealability as to his

Rule 15(c) “relation back” claim. See Fed. R. Civ. P. 15(c). No reasonable jurist could debate

whether Sanders’s claim that his 2007 petition “relate[d] back,” see Mayle v. Felix, 545 U.S. 644,

650 (2005), to his 1997 petition “deserve[d] encouragement to proceed further,” see Towery v.

Schriro, 641 F.3d 300, 311 (9th Cir. 2010) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Even if the 2007 petition could be construed as an amendment of the 1997 petition, the “relation

back” doctrine is inapplicable because “a habeas petition filed after the district court dismisses a

previous petition without prejudice for failure to exhaust state remedies cannot relate back to the

original habeas petition.” Rasberry v. Garcia, 448 F.3d 1150, 1155 (9th Cir. 2006).
JUDGMENT AFFIRMED.
