                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 28 2011

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




                            FOR THE NINTH CIRCUIT



RODNEY BLACH,                                    No. 09-17571

              Petitioner - Appellant,            D.C. No. 4:05-cv-04446-PJH

  v.
                                                 MEMORANDUM *
JOHN DOVEY, Director for Adult
Institutions; CALIFORNIA
DEPARTMENT OF CORRECTIONS
AND REHABILITATION; SCOTT
KERNAN, Director of Adult Institutions,
California Department of Corrections,

              Respondents - Appellees.



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

                     Argued and Submitted September 1, 2011
                            San Francisco, California

Before: FISHER and RAWLINSON, Circuit Judges, and MILLS, Senior District
Judge.**


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Richard Mills, Senior District Judge for the United
States District Court for Central Illinois, sitting by designation.
       Petitioner Rodney Blach (Blach) appeals the district court’s dismissal of his

untimely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He

contends that he was prevented from filing a timely petition due to difficulty

gaining access to his legal papers, being placed in isolation, and his transfer to a

different prison facility.

       Blach argues that due to extraordinary circumstances and his diligence to

overcome those circumstances, he is entitled to equitable tolling. See Lakey v.

Hickman, 633 F.3d 782, 784 (9th Cir. 2011), as amended. But the ability to file

other petitions for post-conviction relief during the AEDPA limitations period

demonstrates that a petitioner also had the ability to file a federal habeas petition.

See Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010) (holding that the

district court properly denied petitioner’s request for an evidentiary hearing on

equitable tolling where the petitioner filed several petitions for post-conviction

relief containing the same arguments presented in his federal habeas petition).

Blach was able to prepare a truncated twenty-four page state petition raising the

same claims as his belated federal petition. The fact that Blach was able to file this

post-conviction petition demonstrates the lack of extraordinary circumstances.

       The district court did not abuse its discretion when it denied Blach's petition

without holding an evidentiary hearing. "To obtain an evidentiary hearing in


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district court, a habeas petitioner must, in addition to showing diligence in state

court, allege a colorable claim for relief." West v. Ryan, 608 F.3d 477, 485 (9th

Cir. 2010) (citation omitted). "To allege a colorable claim, he must allege facts

that, if true, would entitle him to habeas relief." Id. (citation omitted). "If the

record refutes the applicant's factual allegations or otherwise precludes habeas

relief, a district court is not required to hold an evidentiary hearing." Id. (citation,

alteration, and internal quotation marks omitted).

      Because Blach's allegations that extraordinary circumstances precluded him

from timely filing his habeas petition were not supported by the record, no

evidentiary hearing was warranted.

      AFFIRMED.




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