                                                                              FILED
                            NOT FOR PUBLICATION                                JAN 16 2015

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



                             FOR THE NINTH CIRCUIT


NICOLAS FELIX,                                    No. 12-15649

              Petitioner - Appellant,             D.C. No. 3:09-CV-00483-LRH-
                                                  WGC
  v.

RENEE BAKER and NEVADA                            MEMORANDUM*
ATTORNEY GENERAL,

              Respondents - Appellees.


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

                             Submitted October 6, 2014**
                              San Francisco, California

Before: THOMAS, Chief Judge, and D.W. NELSON and LEAVY, Circuit Judges.

       Petitioner Nicolas Felix (“Felix”) appeals the district court’s dismissal of his

federal habeas petition as untimely. We have jurisdiction pursuant to 28 U.S.C.

§ 2253, 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).
      The district court did not err in concluding that Felix is not entitled to

equitable tolling. We have held that a “combination of (1) a prison law library’s

lack of Spanish-language legal materials, and (2) a petitioner’s inability to obtain

translation assistance before the one-year deadline, could constitute extraordinary

circumstances” entitling that petitioner to equitable tolling. Mendoza v. Carey, 449

F.3d 1065, 1069 (9th Cir. 2006). “[A] non-English-speaking petitioner seeking

equitable tolling must, at a minimum, demonstrate that during the running of the

AEDPA time limitation, he was unable, despite diligent efforts, to procure either

legal materials in his own language or translation assistance from an inmate,

library personnel, or other source.” Id. at 1070. In January 2007, Felix mailed his

state habeas petition in English. While he submitted some papers to the district

court in Spanish, he was able to submit his pro se habeas petition, his application to

proceed in forma pauperis and his motion for the appointment of counsel in

English. This record suggests that Felix either has some proficiency in English or

access to a translator and is, thus, barred from equitable relief. See id. at 1069.

      Fleix’s claim that he is entitled to equitable tolling because he relied on his

attorney’s miscalculation of the filing deadline is without merit. See, e.g.,

Lawrence v. Florida, 549 U.S. 327, 336–37 (2007); Randle v. Crawford, 604 F.3d

1047, 1058 (9th Cir. 2009).


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       The district court did not err in finding statutory tolling inapplicable.

AEDPA provides that the one-year statute of limitations does not begin to run until

“the date on which the impediment to filing an application created by State action

in violation of the Constitution or laws of the United States is removed, if the

applicant was prevented from filing by such State action.” 28 U.S.C.

§ 2244(d)(1)(B). Here, Felix was able to file his federal petition, albeit late. He

has not provided a specific time-frame for when a state-created impediment to

filing his petition was removed. Felix’s ability to file a state habeas petition

successfully while subject to the alleged impediment undermines his assertion that

unconstitutional state action prevented him from timely filing a federal habeas

petition.

       AFFIRMED.




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