                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 16 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


BEN NOYAKUK,                                     No. 08-35946

              Petitioner - Appellant,            D.C. No. 3:07-cv-00191-JWS-
                                                 DMS
  v.

CRAIG TURNBULL,                                  MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                            for the District of Alaska
                   John W. Sedwick, District Judge, Presiding

                       Argued and Submitted June 26, 2012
                               Anchorage, Alaska

Before: GOODWIN, W. FLETCHER, and M. SMITH, Circuit Judges.

       Petitioner-Appellant Ben Noyakuk appeals the dismissal of his habeas

corpus petition as untimely. As the facts and procedural history are familiar to the

parties, we do not recite them here except as necessary to explain our disposition.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Noyakuk concedes that he filed his habeas corpus petition under 28 U.S.C. §

2254 two days after the expiration of the one-year statute of limitations. 28 U.S.C.

§ 2244(d)(1). However, he contends that he is entitled to equitable tolling because

his attorney at trial and on direct appeal led him to believe that it was not possible

to file a habeas petition to challenge the denial of a suppression motion.

      To receive equitable tolling, the petitioner must show: “(1) that he has been

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

in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Mere attorney

negligence does not give rise to equitable tolling. In Frye v. Hickman, 273 F.3d

1144 (9th Cir. 2001), this court held that the “miscalculation of the limitations

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

extraordinary circumstances sufficient to warrant equitable tolling.” Id. at 1146;

see also Miranda v. Castro, 292 F.3d 1063, 1068 (9th Cir. 2002) (same). The

statement by Noyakuk’s attorney was incorrect and likely negligent, but under

Frye and Miranda, such negligence does not rise to the level of “extraordinary

circumstances” that allow equitable tolling. Accordingly, we agree with the

district court that Noyakuk’s petition was untimely.

      AFFIRMED.




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