                                                                             FILED
                            NOT FOR PUBLICATION                               MAY 17 2013

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




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 11-17065

              Plaintiff - Appellee,               D.C. Nos.    2:11-cv-00739-RLH
                                                               2:08-cr-00085-RLH -
  v.                                              PAL

GALEN FISHER,
                                                  MEMORANDUM *
              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Nevada
                   Roger L. Hunt, Senior District Judge, Presiding

                              Submitted May 7, 2013 **
                              San Francisco, California


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

       Galen Fisher appeals the district court’s denial of his motion for relief under

28 U.S.C. § 2255 as untimely. Fisher argues that his lawyer’s refusal to file an




        *
             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).
appeal justifies equitable tolling. Fisher requests an evidentiary hearing to develop

his claim.

      This court reviews de novo the dismissal of a petition for writ of habeas

corpus as time-barred. See Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).

Fisher is entitled to equitable tolling if he can show “(1) that he has been pursuing

his rights diligently, and (2) that some extraordinary circumstance stood in his way

and prevented timely filing.” United States v. Buckles, 647 F.3d 883, 889 (9th Cir.

2011), cert. denied, 132 S. Ct. 436 (2011) (internal quotation marks omitted). He

must also show that the extraordinary circumstances caused the untimeliness. Id.

      Regardless of whether Fisher’s lawyer’s conduct constitutes ineffective

assistance of counsel, Fisher has not shown that this conduct caused the

untimeliness of his § 2255 motion. See Id. at 890 (holding that counsel’s

ineffective failure to help petitioner file a Rule 4-1(e) motion “had no effect” on

the timeliness of a § 2255 motion). He also failed to show that this conduct was

more than “garden variety” negligence. See Doe v. Busby, 661 F.3d 1001, 1011-12

(9th Cir. 2011). Because Fisher has not shown circumstances under which he

would be entitled to equitable tolling, we also deny his request for a hearing. Cf.

Buckles, 647 F.3d at 892.

      AFFIRMED.


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