                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 24 2011

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




                            FOR THE NINTH CIRCUIT



JESUS ORNELAS DIAZ,                              No. 09-15373

               Petitioner - Appellant,           D.C. No. 5:06-cv-06370-RMW

  v.
                                                 MEMORANDUM *
ROSEANNE CAMPBELL,

               Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Northern District of California
                    Ronald M. Whyte, District Judge, Presiding

                            Submitted January 10, 2011 **

Before:        BEEZER, TALLMAN, and CALLAHAN Circuit Judges.

       California state prisoner Jesus Ornelas Diaz appeals from the district court’s

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

jurisdiction under 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).
      Diaz contends that the district court erred in dismissing his petition as

untimely. He relies on Mendoza v. Carey, 449 F.3d 1065 (9th Cir. 2006), to argue

that he is entitled to equitable tolling because he did not have access to Spanish

language materials or bilingual assistance. However, he fails to sufficiently

“demonstrate that during the running of the AEDPA time limitations, 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” which could constitute grounds for equitable tolling. See Mendoza, 449

F.3d at 1068-70 (recognizing “that equitable tolling may be justified if language

barriers actually prevent timely filing”) (italics added).

      In a related claim, Diaz contends that the statute of limitations did not begin

until a state-created impediment was removed. However, the record shows that

Diaz was able to file two state habeas petitions. See Ramirez v. Yates, 571 F.3d

993, 1000-1001 (9th Cir. 2009) (relief under 28 U.S.C. § 2244(d)(1)(B) available

only if impediment prevented any filing in any court).

      Finally, Diaz contends that he is entitled to gap tolling for the periods

between his filings in the state courts. Diaz has failed to demonstrate that he filed

his petitions within a reasonable time, such that they were “pending” pursuant to

28 U.S.C. § 2244(d)(2). See Banjo v. Ayers, 614 F.3d 964, 968 (9th Cir. 2010).


                                            2                                     09-15373
Diaz’s request for an evidentiary hearing and oral arguments are denied.

AFFIRMED.




                                   3                                  09-15373
