Omero Becerra RODRIGUEZ, Petitioner-Appellant, v. J. MARSHALL, Warden, Respondent-Appellee, 234 F. App'x 746

MEMORANDUM Omero Becerra Rodriguez appeals the dismissal of his habeas corpus petition as time-barred under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2241 et seq. There is no dispute that his petition was untimely under 28 U.S.C. § 2244(d)(1). At issue is whether Rodriguez is entitled to equitable tolling based on his counsel’s failure to notify him of the conclusion of his direct appeal in California state court. Rodriguez filed his federal habeas petition approximately four months after the one-year deadline under AEDPA.

He argues that equitable tolling is appropriate in his case because his appellate counsel promised in writing to notify him of any actions taken by the court, yet counsel failed to contact him following the California Supreme Court’s denial of his petition for review on June 11, 2003. Rodriguez claims he did not learn the status of his ease until December 14, 2004, when he received a case printout from the California Supreme Court in response to his November 26, 2004 letter.

In his letter to the state court, Rodriguez notes that he had attempted to contact his lawyer in writing and by phone concerning the status of his case, but had received no response. It is not clear from the record when these communications occurred. Equitable tolling is appropriate only if Rodriguez can show “ ‘(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Lawrence v. Florida, — U.S. -, 127 S.Ct. 1079, 1085, 166 L.Ed.2d 924 (2007) (quoting Pace v.

DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005)). Equitable tolling is “unavailable in most cases,” Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999), and “the threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule,” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.2002) (quoting United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000) ). Ordinary negligence on the part of counsel is not an extraordinary circumstance warranting equitable tolling.

See Lawrence, 127 S.Ct. at 1085 (“Attorney miscalculation [of AEDPA’s limitations period] is simply not sufficient to warrant equitable tolling, particularly in the post-conviction context where prisoners have no constitutional right to counsel.”); Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (attorney miscalculation and “negligence in general” not sufficient to warrant equitable tolling). However, we have acknowledged “that where an attorney’s misconduct is sufficiently egregious, it may constitute an ‘extraordinary circumstance’ warranting equitable tolling of AEDPA’s statute of limitations.” Spitsyn v.

Moore, 345 F.3d 796, 800 (9th Cir.2003) (finding attorney’s actions sufficiently egregious where attorney failed to prepare and file a petition although he was hired one year before the deadline; petitioner and his mother contacted the attorney numerous times seeking action; and, despite a request within the limitations period, attorney failed to return petitioner’s file until more than two months after the limitations period had expired). In this case, the record is not clear as to what efforts Rodriguez made to contact appellate counsel’s office or when any purported communications occurred.

Thus, we cannot evaluate whether appellate counsel’s oversight was sufficiently egregious or whether Rodriguez acted with the requisite diligence to justify equitable tolling. We therefore REVERSE and REMAND for an evidentiary hearing to determine whether equitable tolling should apply. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. . The statute of limitations began to run on September 9, 2003, and, because of some statutory tolling, expired on October 13, 2004. Rodriguez filed his federal petition on February 14, 2005.