                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 14 2011

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




                            FOR THE NINTH CIRCUIT



CHAD E. SINGLETON,                               No. 09-57003

              Petitioner - Appellant,            D.C. No. 3:09-cv-00471-LAB-
                                                 CAB
  v.

KEN CLARK, Warden,                               MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                           Submitted October 11, 2011 **
                               Pasadena, California

Before: PREGERSON and D.W. NELSON, Circuit Judges, and LYNN, District
Judge.***




        *
             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 Honorable Barbara G. Lynn, District Judge for the U.S. District
Court for Northern Texas, Dallas, sitting by designation.
      Chad Singleton appeals the district court’s dismissal of his federal habeas

petition time-barred. 28 U.S.C. § 2244(d)(1). We have jurisdiction pursuant to 28

U.S.C. § 1291.

      We review the dismissal of a habeas petition de novo, Jiminez v. Rice, 276

F.3d 478, 481 (9th Cir. 2001), and the district court’s factual findings for clear

error, Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir. 2007). We view the factual

allegations in the light most favorable to Singleton. Evans v. Chavis, 546 U.S.

189, 201 (2006).

      Singleton’s federal habeas petition is untimely, as he filed it after the

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

      Singleton concedes that statutory tolling does not apply.

      Equitable tolling is available only where extraordinary circumstances

beyond the prisoner’s control made it impossible to file a petition on time. Frye v.

Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001). Singleton is entitled to equitable

tolling only if he shows that (1) he has been pursuing his rights diligently and (2)

some extraordinary circumstance stood in his way and prevented timely filing.

Holland v. Florida, 560 U.S. __, 130 S.Ct. 2549, 2562-63 (2010).

      Singleton did not act diligently. He has not explained the unreasonable gaps

between the filing of each state petition, or from the finding of untimeliness by the
state courts to the filing of his federal petition. See, e.g., Lakey v. Hickman, 633

F.3d 782, 787 (9th Cir. 2011).

      Singleton also has not shown how his disabilities prevented him from filing

a timely petition. He bears the burden of showing that he was incapable of filing

his federal petition on time. Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir.

2002). He has not done so.

      AFFIRMED.
