                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              NOV 16 2009

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

TONY RICHARD MARTINEZ,                           No. 07-55625

             Petitioner - Appellant,             D.C. No. CV-06-01039-RGK

  v.
                                                 MEMORANDUM *
M. KNOWLES,

             Respondent - Appellee.



TONY RICHARD MARTINEZ,                           No. 07-56102

             Petitioner - Appellant,             D.C. No. CV-06-01039-RGK

  v.

M. KNOWLES,

             Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                   R. Gary Klausner, District Judge, Presiding

                     Argued and Submitted November 3, 2009
                              Pasadena, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER, SILER, ** and IKUTA, Circuit Judges.



      In appeal no. 07-55625, Martinez’s claim for equitable tolling fails because

he did not sufficiently demonstrate that “extraordinary circumstances made it

impossible to file a petition on time.” Ramirez v. Yates, 571 F.3d 993, 997 (9th

Cir. 2009) (alterations and quotation marks omitted). Because “[o]rdinary prison

limitations on [a petitioner’s] access to the law library” are “neither ‘extraordinary’

nor made it ‘impossible’ for [the petitioner] to file his petition in a timely manner,”

id. at 998, Martinez is not entitled to equitable tolling for the period during which

he was in prison lockdown and prevented from accessing the law library and

necessary legal materials. Indeed, Martinez was able to file his untimely federal

habeas petition during this period. Even if Martinez was entitled to equitable

tolling for the eleven days he was denied access to his legal files, his habeas

petition would still be untimely, because he filed his petition thirteen days late.

      We lack jurisdiction to consider the merits of appeal no. 07-56102 because

Martinez failed to appeal the district court’s denial of his motion for an extension

of time to file a late appeal (the “Denial Order”). “[A]n order denying a motion to



       **
             The Honorable Eugene E. Siler, Jr., Senior United States Circuit
Judge for the Sixth Circuit, sitting by designation.

                                          -2-
file a late notice of appeal is itself appealable,” Diamond v. U. S. Dist. Ct., 661

F.2d 1198, 1198 (9th Cir. 1981), and Martinez’s failure to file a notice of appeal, as

required by Federal Rule of Appellate Procedure 3, “is fatal to an appeal,” Smith v.

Barry, 502 U.S. 244, 248 (1992). See 16A Charles Alan Wright et al., Federal

Practice and Procedure § 3950.3, at 307 & n.130 (4th ed. 2008). Contrary to

Martinez’s argument, the Denial Order did not state that Martinez need not file a

notice of appeal to the Denial Order. Rather, the Denial Order stated that Martinez

need not file a “separate notice of appeal” to appeal the court’s earlier denial of his

habeas petition because Martinez’s previously filed notice of appeal was sufficient.

      Appeal no. 07-55625 AFFIRMED; appeal no. 07-56102 DISMISSED

FOR LACK OF JURISDICTION.




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