                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                      NOV 19 2014
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT


JAMES E. DALY,                                   No. 13-16294

             Petitioner - Appellant,             D.C. No. 4:12-cv-00091-PJH

   v.
                                                 MEMORANDUM*
W. KNIPP, Warden,

             Respondent - Appellee.

                    Appeal from the United States District Court
                       for the Northern District of California
                    Phyllis J. Hamilton, District Judge, Presiding

                           Submitted November 17, 2014**
                              San Francisco, California

Before: GOULD, WATFORD, and FRIEDLAND, Circuit Judges.

        James E. Daly appeals from an order by the Northern District of California

dismissing his federal habeas corpus petition as untimely under 28 U.S.C. § 2244(d).




        *
             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).
We agree with the district court that Daly has not demonstrated that he is entitled to

equitable tolling, so we affirm.1

      The district court’s decision to dismiss a § 2254 habeas petition as untimely is

reviewed de novo. Nedds v. Calderon, 678 F.3d 777, 780 (9th Cir. 2012). The

district court’s decision not to order an evidentiary hearing is reviewed for abuse of

discretion. Roy v. Lampert, 465 F.3d 964, 968 (9th Cir. 2006).

      Absent equitable tolling, Daly’s petition was 197 days late. A habeas

petitioner is entitled to equitable tolling “only if he shows ‘(1) that he has been

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

his way’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649

(2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The petitioner

bears the burden of showing that equitable tolling should apply.

Espinoza-Matthews v. California, 432 F.3d 1021, 1026 (9th Cir. 2005). A habeas

petitioner is entitled to an evidentiary hearing when the petitioner “makes a

good-faith allegation that would, if true, entitle him to equitable tolling.” Roy, 465

F.3d at 969 (emphasis, citation, and internal quotation marks omitted).




1
  Daly asks this court to take judicial notice of the exhibits attached to his federal
habeas petition. Blue Br. at 14-15 n.1. Original papers and exhibits filed in the
district court are already part of the record on appeal, see F.R.A.P. 10(a)(1), so the
request to take judicial notice is denied as unnecessary.

                                           2
      A petitioner’s complete lack of access to his legal file can justify equitable

tolling. See Espinoza-Matthews, 432 F.3d at 1028; Spitsyn v. Moore, 345 F.3d 796,

801 (9th Cir. 2003). But Daly’s allegations of limited access to his legal file do not

rise to the level of extraordinary circumstances. See Chaffer v. Prosper, 592 F.3d

1046, 1049 (9th Cir. 2010) (per curiam) (holding that petitioner’s “pro se status, a

prison library that was missing a handful of reporter volumes, and reliance on

helpers who were transferred or too busy to attend to his petitions” were “hardly

extraordinary given the vicissitudes of prison life”); Ramirez v. Yates, 571 F.3d 993,

998 (9th Cir. 2009) (“Ordinary prison limitations on [a petitioner’s] access to the law

library and copier . . . were neither ‘extraordinary’ nor made it ‘impossible’ for him

to file his petition in a timely manner.”). Nor does Daly point to specific documents

he needed but could not access. See Waldron-Ramsey v. Pacholke, 556 F.3d 1008,

1013-14 (9th Cir. 2009) (“Waldron-Ramsey does not point to specific instances

where he needed a particular document, could not have kept that document within

his permitted three boxes had he been cooperative, and could not have procured that

particular document when needed.”).

      Because Daly has not alleged facts that would entitle him to equitable tolling,

it was not an abuse of discretion for the district court to decline to order an

evidentiary hearing.




                                           3
      The other circumstances for which Daly requests equitable tolling together

account for only 123 days, so even if those circumstances merited equitable tolling,

Daly’s petition would be untimely. We therefore have no reason to evaluate those

circumstances.

      For the foregoing reasons, we AFFIRM.




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