                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 05 2010

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




                            FOR THE NINTH CIRCUIT



LARRY M. WISENBAKER,                             No. 08-17160

              Petitioner - Appellant,            D.C. No. 3:03-cv-0316-ECR-RAM

  v.
                                                 MEMORANDUM *
CRAIG FARWELL, ET AL.,

              Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Nevada
                Edward C. Reed, Jr., Senior District Judge, Presiding

                        Argued and Submitted July 16, 2010
                            San Francisco, California

Before: HUG and M. SMITH, Circuit Judges, and TODD, Senior District Judge.**

       Petitioner Larry M. Wisenbaker, a Nevada state prisoner, appeals the district

court’s dismissal of his petition for habeas relief as untimely. We have jurisdiction

under 28 U.S.C. §§ 1291 and 2253. We review de novo the district court’s


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable James Dale Todd, Senior United States District Judge
for the Western District of Tennessee, sitting by designation.
dismissal of the petition as time-barred, Spitsyn v. Moore, 345 F.3d 796, 799 (9th

Cir. 2003), and we affirm. As the facts and procedural history are familiar to the

parties, we do not recite them here except as necessary to explain our decision.

      The Anti-Terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C.

§ 2244(d)(1), established a one-year statute of limitations for federal habeas

petitions. It is undisputed that Wisenbaker’s petition was filed on June 10, 2003,

more than four months after the limitations period expired on January 26, 2003.

Wisenbaker contends that he is entitled to equitable tolling because: (1) residual

effects from a brain injury received in a stabbing prevented him from filing the

petition on time; and (2) despite his requests, he did not receive his files from his

former attorney, David Amesbury, until after the statute of limitations had expired.

      The United States Supreme Court recently confirmed that AEDPA’s one-

year statute of limitations may be equitably tolled in appropriate cases. See

Holland v. Florida, 130 S. Ct. 2549, 2560-62 (2010). A petitioner seeking

equitable tolling must show “‘(1) that he has been pursuing his rights diligently,

and (2) that some extraordinary circumstance stood in his way’ and prevented

timely filing.” Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005)). “The threshold for obtaining equitable tolling is very high,” Townsend v.




                                           2
Knowles, 562 F.3d 1200, 1205 (9th Cir. 2009), and it is “unavailable in most

cases.” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999).

      Wisenbaker was stabbed in the head on January 3, 2001, while he was

incarcerated. During the evidentiary hearing in the district court, Dr. Thomas

Francis Kinsora, Ph.D., a neuropsychologist, testified that, due to the resulting

brain injury, Wisenbaker had impaired cognitive functioning and various medical

problems that would have made it “nearly impossible” for him to prepare a habeas

petition on his own. However, Kinsora was unaware that Wisenbaker was assisted

by inmate law clerks and, with their help, had actively and extensively pursued two

civil rights actions during the months immediately preceding the expiration of the

habeas deadline, showing that he was not unable to litigate during that time period.

      Most important, Kinsora was unaware that Wisenbaker had actively and

extensively pursued two civil rights actions during the months immediately

preceding the expiration of the habeas deadline, showing that he was not unable to

litigate during that time period. Thus, Wisenbaker cannot demonstrate that his

brain injury was an extraordinary circumstance that prevented him from complying

with the statute of limitations.

      The fact that Wisenbaker received his files from Amesbury, his former

attorney, after the statute of limitations had expired also does not constitute an


                                           3
extraordinary circumstance that prevented timely filing of the petition.

Wisenbaker mailed his petition to the district court on June 10, 2003, prior to

receiving the files on June 23, 2003. That Wisenbaker was able to submit his

petition before obtaining the files does not automatically foreclose equitable

tolling. See United States v. Battles, 362 F.3d 1195 (9th Cir. 2004). However, it

can be an important factor. Id. at 1198 n.5 (“[D]epending on the whole developed

factual picture, the actual filing may loom large in the final tolling determination

for it might ultimately show that he was not actually delayed at all.”).

      It is evident from Wisenbaker’s petition that he had all the information that

he needed, even without his files. The petition presented seven well-supported

grounds for relief containing detailed factual allegations. The submission of such a

complete petition shows that any delay in receiving his files did not cause

Wisenbaker to miss the deadline. See Bryant v. Arizona Attorney Gen., 499 F.3d

1056, 1061 (9th Cir. 2007) (“The prisoner must show that the extraordinary

circumstances were the cause of his untimeliness.” (citation and internal quotation

marks omitted)).

      Amesbury’s conduct in this case falls short of the type of conduct that

justified equitable tolling in Spitsyn, 345 F.3d 796. In that case, Spitsyn’s attorney,

who had been retained to file a federal habeas petition, failed to do so and did not


                                           4
respond to Spitsyn’s inquiries until after the statute of limitations had expired. Id.

at 798; cf. Stillman v. LaMarque, 319 F.3d 1199, 1200 (9th Cir. 2003) (attorney

“agreed to provide ‘some assistance’ in preparing pro se state and federal habeas

petitions”). However, Amesbury did not represent Wisenbaker in this federal

habeas proceeding, and Wisenbaker was fully aware that he did not. While

Amesbury did give Wisenbaker erroneous information about when the AEDPA

statute of limitations would expire, such “‘a garden variety claim of excusable

neglect’” does not warrant equitable tolling. Holland, 130 S. Ct. at 2564 (quoting

Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)); see also Lawrence v.

Florida, 549 U.S. 327, 336-37 (2007) (miscalculating a limitations period “is

simply not sufficient to warrant equitable tolling”).

      Wisenbaker has failed to demonstrate that extraordinary circumstances

prevented him from filing his habeas petition within the statute of limitations.

Therefore, Wisenbaker is not entitled to equitable tolling, and his petition is

untimely.

      AFFIRMED.




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