                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 29 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JERRY LARA,                                      No. 13-15476

              Petitioner - Appellant,            D.C. No. 2:12-cv-00505-KJD-PAL

 v.
                                                 MEMORANDUM*
DWIGHT NEVEN, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                             for the District of Nevada
                  Kent J. Dawson, Senior District Judge, Presiding

                          Submitted September 15, 2015**
                             San Francisco, California

Before: CALLAHAN, CHRISTEN, and FRIEDLAND, Circuit Judges.

      Jerry Lara was convicted in 1997 for first-degree murder and discharging a

firearm into a vehicle. He was sentenced to two consecutive 20-year terms and his

conviction was affirmed by the Nevada Supreme Court in 2000. His first state


        *
             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).
post-conviction petition was finally denied in 2004. He filed a second state post-

conviction petition in 2008, which was finally denied in 2011. On March 15,

2012, Lara filed a federal habeas petition in the District Court for the District of

Nevada. The petition alleged that the jury instruction based on Kazalyn v. State,

825 P.2d 578 (Nev. 1992), relieved the state of the burden of proving that the

killing was deliberate, as well as premeditated. He further alleged that the

instruction had been disapproved in Byford v. State, 994 P.2d 700 (Nev. 2000), and

Polk v. Sandoval, 503 F.3d 903 (9th Cir. 2007), overruled in part by Babb v.

Lozowsky, 719 F.3d 1019, 1028-30 (9th Cir. 2013). The district court dismissed

the petition as both untimely and procedurally barred. We agree that the district

court properly dismissed the petition as untimely.

      Pursuant to 28 U.S.C. § 2244(d)(1), the one-year statute of limitations

applicable to Lara’s habeas petition begins to run from the latest of: (a) the date on

which the judgment becomes final, (b) the date a state-created impediment to filing

is removed, (c) the date the Supreme Court newly recognizes a constitutional right

that is made retroactively applicable to cases on collateral review, or (d) the date on

which the factual predicate of the claim could have been discovered through the

exercise of due diligence.




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      Lara argues that he is entitled to delayed accrual of the limitations period

pursuant to 28 U.S.C. § 2244(d)(1)(B), (C), or (D). We disagree. Even if Lara’s

lack of law library access while in lockdown constituted a state-created

impediment, from November 2006 until February 2008 Lara had law library access

two times per week, three hours at a time. The Ninth Circuit’s decision in Polk,

503 F.3d 903, does not support Lara’s argument for a delayed onset of the

limitations period because it was not a new rule of constitutional law issued by the

Supreme Court. As to the factual predicate of his claim, Lara knew of the jury

instruction at the time of his trial, and Byford was decided while his direct state

appeal was still pending.

     Lara’s argument that he is entitled to statutory tolling during the pendency of

his second habeas petition is equally unavailing. Under 28 U.S.C. § 2244(d)(2),

statutory tolling of the one-year limitations period is only available if the state

habeas petition was “properly filed.” Because the Nevada Supreme Court

determined that Lara’s second state habeas petition was untimely, the petition did

not satisfy this threshold requirement. See Pace v. DiGuglielmo, 544 U.S. 408,

417 (2005).

     Equitable tolling is available upon a showing that the petitioner diligently

pursued his rights but “some extraordinary circumstance stood in his way.”


                                            3
Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace, 544 U.S. at 418). We

have indicated that equitable tolling is only available where a petitioner shows an

extraordinary circumstance beyond his control that made it almost impossible to

file a timely petition. See Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010).

Here, accepting Lara’s allegations as true, neither his limited access to the law

library in prison, nor his lack of advice or assistance from counsel, nor their

combination so interfered with his ability to file a timely federal petition as to

allow for equitable tolling.

      The District Court’s dismissal of Lara’s habeas petition as untimely is

AFFIRMED.




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