Jose Perez v. Derrell Adam, No. 09-16261 (9th Cir. 2010)

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FILED DEC 13 2010 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JOSE PEREZ, No. 09-16261 Petitioner - Appellant, D.C. No. 2:07-cv-01344-MCE v. MEMORANDUM * DERRAL G. ADAMS, Warden, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of California Morrison C. England, District Judge, Presiding Submitted December 6, 2010 ** Before: GOODWIN, RYMER, and GRABER, Circuit Judges. California state prisoner Jose Perez appeals from the district court s judgment dismissing his 28 U.S.C. § 2254 habeas petition as untimely. We have jurisdiction under 28 U.S.C. § 2253, and we affirm. Perez contends that he is entitled to equitable tolling of the Antiterrorism * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). and Effective Death Penalty Act s one-year statute of limitations, due to his lack of legal sophistication, abandonment by appellate counsel, and other circumstances beyond his control. Perez s contention fails because a pro se petitioner s lack of legal sophistication is not an extraordinary circumstance warranting equitable tolling. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). Moreover, because there is no constitutional right to the effective assistance of counsel in state post-conviction proceedings, attorney negligence does not amount to an extraordinary circumstance sufficient to warrant equitable tolling. See Miranda v. Castro, 292 F.3d 1063, 1066-68 (9th Cir. 2002). Similarly, Perez has failed to establish that any of his remaining contentions entitles him to equitable tolling. AFFIRMED. 2 09-16261

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