                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                     SEPTEMBER 16
                                                                            2014

                            FOR THE NINTH CIRCUIT                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS




KEVIN SCOTT DAVIS,                               No. 13-15245

             Petitioner - Appellant,             D.C. No.
                                                 3:11-cv-00897-RCJ-WGC
   v.

PALMER; NEVADA STATE GENERAL,                    MEMORANDUM*

             Respondents - Appellees.

                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                           Submitted September 10, 2014**
                              San Francisco, California

Before: SCHROEDER, OWENS, and FRIEDLAND, Circuit Judges.


   Kevin Scott Davis appeals from a judgment by the District of Nevada dismissing

his federal habeas corpus petition as untimely under 28 U.S.C. § 2244(d). We



        *
             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).
agree with the district court that Davis has not demonstrated eligibility for equitable

tolling, so we affirm.1

    We review de novo the district court’s decision to dismiss a § 2254 habeas

petition as untimely. Nedds v. Calderon, 678 F.3d 777, 780 (9th Cir. 2012). We

review the district court’s decision not to order an evidentiary hearing for abuse of

discretion. Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006).

    Davis argues that he is entitled to at least 100 days of equitable tolling2 based on

a combination of attorney negligence, lack of library access, and the state court’s

delay in resolving his motion to withdraw the guilty plea.3 None of these grounds



1
  This court “may take notice of proceedings in other courts, both within and
without the federal judicial system, if those proceedings have a direct relation to
matters at issue.” United States ex rel. Robinson Rancheria Citizens Council v.
Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992); see also Fed. R. Evid. 201. We
therefore grant Davis’s motion to take judicial notice of certain state court pleadings,
which were not included in Davis’s pro se pleadings before the district court.
2
  Davis alternately requests statutory tolling pursuant to 28 U.S.C. § 2244(d)(1)(B)
based on a state-created impediment for these same grounds. Because we address
the possibility of an impediment as part of the equitable tolling argument, we will
not duplicate this analysis to address impediments for statutory tolling.
3
  Davis additionally argues that he should have been allowed to appear for oral
argument in his plea withdrawal motion, that he should have been appointed counsel
for his plea withdrawal motion, and that the state court should not have dismissed his
motion to withdraw the guilty plea. None of these arguments bear on the timeliness
of his federal habeas petition.


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qualify for equitable tolling because none prevented Davis from timely filing his

federal habeas petition.

   A federal habeas petitioner is entitled to equitable tolling of AEDPA’s 1-year

statute of limitations “only if he shows ‘(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, 560 U.S. 631, 649 (2010) (quoting

Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

   Davis’s allegation of attorney misconduct based on his attorney’s failure to file a

direct appeal in state court is not an extraordinary circumstance because his attorney

did not commit egregious misconduct, nor did Davis show that it prevented him

from timely filing his federal habeas petition. See Spitsyn v. Moore, 345 F.3d 796,

800 (9th Cir. 2003); Randle v. Crawford, 604 F.3d 1047, 1058 (9th Cir. 2009).

   Davis’s allegations of limited library access fail because “[o]rdinary prison

limitations on [a prisoner’s] access to the law library” are “neither ‘extraordinary’

nor [make] it ‘impossible’ for him to file his petition in a timely manner.” Ramirez

v. Yates, 571 F.3d 993, 998 (9th Cir. 2009). Davis has not pointed to any specific

information that he needed but could not access.

   Davis also has not shown that the state court’s delay in adjudicating his motion to

withdraw the guilty plea caused his untimely federal petition. The state’s delay


                                          3
during the motion to withdraw the guilty plea did not cause Davis’s state habeas

petition to be untimely because Davis was not required to bring the motion to

withdraw the guilty plea prior to filing his state habeas petition. See Hart v. State, 1

P.3d 969, 971-72 (Nev. 2000) (holding that post-conviction challenges to a guilty

plea could be brought as a motion to withdraw guilty plea or as a habeas petition),

overruled by Harris v. State, 329 P.3d 619 (Nev. 2014). The delay also did not

cause Davis’s federal petition to be untimely because he did not need to wait for the

Nevada Supreme Court to resolve his state habeas petition before filing his federal

habeas petition and either asking for a stay or omitting any claims not previously

raised in his motion to withdraw the guilty plea. See Rhines v. Weber, 544 U.S.

269, 275-77 (2005) (holding that district courts have discretion to stay federal

habeas petitions pending exhaustion of claims in state court where there was good

cause for the failure to exhaust previously); O’Sullivan v. Boerckel, 526 U.S. 838,

845 (1999) (“[S]tate prisoners must give the state courts one full opportunity to

resolve any constitutional issues by invoking one complete round of the State’s

established appellate review process.”).

   Finally, Davis acknowledges that he waited until after the statute of limitations

had run to file his federal habeas petition because he was waiting for remittitur on an

appeal of a non-appealable order of the state district court, and he does not argue that

this mistake was an extraordinary circumstance or was caused by an extraordinary


                                           4
circumstance. See Johnson v. United States, 544 U.S. 295, 311 (2005) (“[W]e have

never accepted pro se representation alone or procedural ignorance as an excuse for

prolonged inattention when a statute’s clear policy calls for promptness . . . .”).4

    Because Davis does not qualify for equitable tolling, his petition would be

untimely regardless of the resolution of the other issues raised on appeal. We

therefore decline to reach those issues.

    For the foregoing reasons, we AFFIRM.




4
  Davis has not alleged facts that would entitle him to equitable tolling, so it was not
an abuse of discretion for the district court to decline to order an evidentiary hearing.
See Roy, 465 F.3d at 969 (holding that a habeas petitioner is entitled to an
evidentiary hearing when the petitioner “makes a good-faith allegation that would, if
true, entitle him to equitable tolling” (emphasis, citation, and internal quotation
marks omitted)).


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