                                                                            FILED
                             NOT FOR PUBLICATION                            SEP 30 2014

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



                             FOR THE NINTH CIRCUIT


TRUNG QUANG PHAN,                                 No. 13-15911

                Petitioner - Appellant,           D.C. No. 4:11-cv-05286-PJH

  v.
                                                  MEMORANDUM**
JEFFREY BEARD,*

                Respondent - Appellee.


                     Appeal from the United States District Court
                        for the Northern District of California
                     Phyllis J. Hamilton, District Judge, Presiding

                           Submitted September 23, 2014***

Before:         W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.

       California state prisoner Trung Quang Phan appeals from the district court’s

judgment dismissing his 28 U.S.C. § 2254 petition as untimely. We have

          *
             Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Jeffrey
Beard is substituted for his predecessor, Matthew Cate, as Secretary of the
Department of Corrections and Rehabilitation.
          **
             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).
jurisdiction under 28 U.S.C. § 2253. We review de novo a district court’s

dismissal of a federal habeas petition on statute of limitations grounds, and the

denial of an evidentiary hearing for abuse of discretion. See Mendoza v. Carey,

449 F.3d 1065, 1068 (9th Cir. 2006). We affirm.

      Phan, whose native language is Vietnamese, contends that he is entitled to

equitable tolling because of his lack of English proficiency, the absence of

Vietnamese language legal materials in the prison, and his inability to obtain

assistance to file a federal habeas petition until 2010. This contention fails because

Phan has not shown that he diligently attempted to procure either legal materials in

Vietnamese or assistance in filing his federal habeas petition. See Holland v.

Florida, 560 U.S. 631, 649 (2010) (to be entitled to equitable tolling, a petitioner

must demonstrate diligence); Mendoza, 449 F.3d at 1070 (discussing showing a

non-English speaker must make to qualify for equitable tolling).

      Phan also contends that the district court erred by failing to hold an

evidentiary hearing regarding his equitable tolling argument. Because Phan failed

to make allegations regarding his diligence that would, if true, entitle him to

equitable tolling, the district court did not abuse its discretion by dismissing the




                                           2                                      13-15911
petition without holding an evidentiary hearing. See Roy v. Lampert, 465 F.3d

964, 969 (9th Cir. 2006).

      AFFIRMED.




                                        3                                  13-15911
