                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 22 2010

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




                            FOR THE NINTH CIRCUIT



DARREL KING,                                     No. 07-17105

              Petitioner - Appellant,            D.C. No. CV-06-07484-SBA

  v.
                                                 MEMORANDUM *
FERNANDO GONZALEZ, Acting
Warden of the California Correctional
Institution,

              Respondent - Appellee.



                   Appeal from the United States District Court
                      for the Northern District of California
                  Saundra B. Armstrong, District Judge, Presiding

                             Submitted June 18, 2010 **
                              San Francisco, California

Before: TYMKOVICH,*** BYBEE and N.R. SMITH, Circuit Judges.




        *
             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. ¶ 34(a)(2).
        ***
             The Honorable Timothy M. Tymkovich, Circuit Judge for the Tenth
Circuit Court of Appeals, sitting by designation.
      Petitioner-Appellant Darrel King appeals the district court’s decision

granting Respondent-Appellee’s motion to dismiss and denying King’s petition for

writ of habeas corpus. Although King concedes that his habeas petition was

untimely under the one-year period of limitations set forth in the Antiterrorism and

Effective Death Penalty Act of 1996, he argues that the district court erred in

holding that equitable tolling does not apply. We review this determination de

novo, see Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003), and we affirm.

      Equitable tolling is available only if “extraordinary circumstances beyond a

prisoner’s control make it impossible to file a petition on time.” Id. at 799

(quotation marks omitted). We have consistently held that “miscalculation of the

limitations period by [petitioner’s] counsel and his negligence in general do not

constitute extraordinary circumstances sufficient to warrant equitable tolling.”

Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001). Because King’s attorney

made a good faith effort to file King’s habeas petition but simply miscalculated the

filing deadline, his conduct was negligent at worst and does not constitute

extraordinary circumstances sufficient for equitable tolling. And given our

consistent proclamations that an attorney’s negligent miscalculation of a filing

deadline is insufficient to justify equitable tolling, we reject the argument that such

a miscalculation is sufficient when coupled with a client’s requests for diligence.


                                           2
See id.

      AFFIRMED.




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