     15-1884
     Franklin v. State of New York

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 24th day of May, two thousand sixteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                BARRINGTON D. PARKER,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       STEVEN FRANKLIN,
13                Petitioner-Appellant,
14
15                    -v.-                                               15-1884
16
17       STATE OF NEW YORK,
18                Respondent-Appellee.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        JOHN S. WALLENSTEIN, LAW OFFICE
22                                             OF JOHN S. WALLENSTEIN, Garden
23                                             City, New York.
24
25       FOR APPELLEE:                         JODI L. MANDEL (with Leonard
26                                             Joblove and Anthea H. Bruffee on
27                                             the brief) for Kenneth P.
28                                             Thompson, District Attorney of

                                                  1
 1                              Kings County, Brooklyn, New
 2                              York.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Eastern District of New York (Weinstein, J.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Steven Franklin appeals from the judgment of the United
12   States District Court for the Eastern District of New York
13   (Weinstein, J.), dismissing his habeas corpus petition as
14   time-barred. We assume the parties’ familiarity with the
15   underlying facts, the procedural history, and the issues
16   presented for review. Franklin argues that he is entitled to
17   equitable tolling. A petitioner is entitled to equitable
18   tolling “only if he shows ‘(1) that he has been pursuing his
19   rights diligently, and (2) that some extraordinary
20   circumstance stood in his way’ and prevented timely filing.”
21   Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace
22   v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “Equitable
23   tolling applies only in the ‘rare and exceptional
24   circumstance[].’” Smith v. McGinnis, 208 F.3d 13, 17 (2d
25   Cir. 2000) (alteration in original) (quoting Turner v.
26   Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999)). No record
27   evidence supports Franklin’s assertion that an extraordinary
28   circumstance prevented him from timely filing his petition;
29   Franklin’s contention that he suffered from mental illness
30   is belied by his ability to draft, during the operative time
31   period, a motion to vacate the judgment in state court, and
32   diligently study for his GED exam.
33
34        For the foregoing reasons, and finding no merit in
35   Franklin’s other arguments, we hereby AFFIRM the judgment of
36   the district court.
37
38                              FOR THE COURT:
39                              CATHERINE O’HAGAN WOLFE, CLERK
40




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