                                                                                         FILED
                            NOT FOR PUBLICATION                                          JUL 19 2016
                                                                                   MOLLY C. DWYER, CL
                                                                                     U.S. COURT OF APPEA
                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT


ANDREW L. MACKEY,                                14-17260

              Petitioner-Appellant,              D.C. No. 2:12-cv-01245-TLN-
                                                 CKD
  v.

                                                 MEMORANDUM*
WILLIAM MUNIZ, Warden,

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the District of Eastern California
                     Troy L. Nunley, District Judge, Presiding

                              Submitted June 6, 2016**
                              San Francisco, California

Before: SILVERMAN and NGUYEN, Circuit Judges, and GARBIS, Senior
District Judge.***



        *
              This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
              The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Marvin J. Garbis, Senior United States District Judge
for the District of Maryland, sitting by designation.
      Andrew Mackey appeals the district court’s dismissal of his petition for a

writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we

affirm.

      Mackey, who suffers from severe mental impairments, filed the instant

habeas petition challenging his conviction of child molestation related offenses

after the expiration of the one-year statute of limitations set forth in 28 U.S.C. §

2244(d). Conspicuously missing from the record is any testimony from Mackey to

the effect that he wanted to file a federal habeas petition but did not have the ability

to do so himself and did not know how to get help.

      The district court dismissed the petition as untimely and declined to apply

equitable tolling to extend the limitations period. Reviewing the dismissal of

Mackey’s petition de novo, United States v. Avery, 719 F.3d 1080, 1082 (9th Cir.

2013), we agree with the district court that equitable tolling is inappropriate

because the record does not reflect any diligence on Mackey’s part in attempting to

file his federal habeas petition within the limitations period. See Holland v.

Florida, 560 U.S. 631, 649 (2010) (noting a petitioner is eligible for equitable

tolling only if he pursued rights diligently and would have timely filed but for

some extraordinary circumstance); see also Yow Ming Yeh v. Martel, 751 F.3d


                                           2
1075, 1078 (9th Cir. 2014) (“[E]ven in cases of debilitating impairment the

petitioner must still demonstrate diligence.”). Therefore, the petition was untimely

and was properly dismissed.1

      AFFIRMED.




1
  Because Mackey’s petition was not timely filed, the question of whether Mackey
exhausted his state remedies is moot.
                                       3
