                                                                            FILED
                                                                             JUL 15 2011
                           NOT FOR PUBLICATION                           MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS

                    UNITED STATES COURT OF APPEALS

                           FOR THE NINTH CIRCUIT


ARTHUR EUGENE JOHNSON,                          No. 10-16177

             Petitioner - Appellant,            D.C. No. 2:09-cv-00850-JAM-
                                                GGH
  v.

JAMES A. YATES,                                 MEMORANDUM*

             Respondent - Appellee.



                   Appeal from the United States District Court
                       for the Eastern District of California
                    John A. Mendez, District Judge, Presiding

                             Submitted June 15, 2011
                             San Francisco, California


Before: SCHROEDER, RIPPLE,** and BEA, Circuit Judges.




      * This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        ** The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
      Arthur Eugene Johnson appeals the district court’s judgment dismissing as

untimely his § 2254 habeas corpus petition. See 28 U.S.C. § 2254. We have

jurisdiction pursuant to 28 U.S.C. § 2253(a), and we now affirm.

      On March 13, 2007, Mr. Johnson’s state-court conviction for attempted

murder and being a felon in possession of a firearm became final and triggered the

running of the one-year statute of limitations for filing a federal habeas petition

under § 101 of the Antiterrorism and Effective Death Penalty Act (“AEDPA”).

See 28 U.S.C. § 2244(d)(1). The limitations period was tolled during the pendency

of Mr. Johnson’s state habeas proceedings, which spanned September 8, 2007,

through September 10, 2008. See 28 U.S.C. § 2244(d)(2). Mr. Johnson’s petition,

therefore, had to be filed no later than March 17, 2009.

      Mr. Johnson was placed in administrative segregation from December 16,

2008, to February 5, 2009, after he got in a fight with another inmate. During this

time, he did not have access to his legal papers. After Mr. Johnson was released

from administrative segregation, he completed his federal habeas petition and gave

it to prison authorities to be mailed. Although two separate pages of the petition

were dated March 18, 2009, Mr. Johnson did not sign either of those pages. The

outgoing prison mail log shows the petition was mailed on March 25, 2009.




                                           2
      The State moved to dismiss Mr. Johnson’s petition on timeliness grounds. It

observed that Mr. Johnson’s federal habeas petition was at least one day late and,

more likely, eight days late given that “the prison’s log of outgoing mail provides

strong evidence of the date [the petitioner] handed over his petition.” Huizar v.

Carey, 273 F.3d 1220, 1224 (9th Cir. 2001). The district court granted the State’s

motion.

      In his appeal, Mr. Johnson maintains that the district court should have

equitably tolled the time during which he was in administrative segregation. “We

review de novo the district court’s dismissal of a federal habeas petition on statute

of limitations grounds.” Ferguson v. Palmateer, 321 F.3d 820, 822 (9th Cir. 2003).

      In Holland v. Florida, 130 S. Ct. 2549 (2010), the Supreme Court set forth

the criteria that we must employ to determine if the statute of limitations under the

AEDPA should be equitably tolled. Specifically, “a ‘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.” Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408,

418 (2005) (emphasis deleted)).

      Mr. Johnson has not met these criteria. First, he has not established

reasonable diligence. Mr. Johnson does not set forth what steps he took before,


                                          3
during or after his segregation to pursue his federal habeas rights. See Roy v.

Lampert, 465 F.3d 964, 972 (9th Cir. 2006) (noting that it was important that the

petitioners “pursued their claims within a reasonable period of time before the

external impediment . . . came into existence” (emphasis in original)). In his reply

brief, Mr. Johnson makes a passing reference to his numerous requests for access

to his legal files during his administrative segregation. Even if we were to consider

this statement, see Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (stating

that “arguments raised for the first time in a reply brief are waived”), it describes

only Mr. Johnson’s efforts while in segregation; it does not speak to his efforts to

pursue his federal habeas rights before his segregation began or after it ended.

      Second, assuming that Mr. Johnson could establish reasonable diligence, he

also must show that an “extraordinary circumstance” prevented him from timely

filing his petition. Mr. Johnson’s petition for state habeas relief was denied by the

California Supreme Court on September 8, 2008, more than three months before he

was placed in administrative segregation on December 16, 2008. He was released

from administrative segregation on February 5, 2009, more than one month before

his federal habeas petition was due on March 17, 2009. Mr. Johnson has come

forward with no evidence or argument to suggest that the forty-five days that he




                                           4
spent in segregation hindered him from filing his federal habeas petition in a timely

manner.1

       Lott v. Mueller, 304 F.3d 918 (9th Cir. 2002), on which Mr. Johnson relies,

does not suggest a different result. Our decision to allow equitable tolling in Lott

was based on the “peculiar facts” of that case, which are not mirrored here. Id. at

923.

       AFFIRMED.




       1
         The State argues that Mr. Johnson’s placement in administrative
segregation was due to his own misconduct and, therefore, does not qualify as an
“extraordinary circumstance” that warrants equitable tolling. We are unaware of
any case law from this court or any other court of appeals that has held, as a matter
of law, that segregation occasioned by a prisoner’s own misconduct cannot qualify
as an “extraordinary circumstance.” Nevertheless, it is not necessary for the court
to address this contention. Regardless of the reason Mr. Johnson was placed in
segregation, he has not met the requirements for equitable tolling.

                                          5
