Stucky v. Hill
Stucky v. Hill
Opinion of the Court
MEMORANDUM
Billy Ray Stucky, an Oregon state prisoner, appeals the district court’s judgment dismissing his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
Stucky raises three arguments to support his contention that he is entitled to equitable tolling. He first contends he is entitled to equitable tolling because his appellate counsel failed to adequately explain the post-conviction petition process, and the prison’s legal assistants provided incorrect information. This contention lacks merit because he is not entitled to representation during post-conviction proceedings and attorney negligence on matters of post-conviction relief is not an extraordinary circumstance warranting equitable tolling. See Miranda v. Castro, 292 F.3d 1063, 1067-68 (9th Cir. 2002) (denying equitable tolling for attorney negligence because there is no right to effective assistance of counsel for post-conviction relief); see also Allen v. Lewis, 255 F.3d 798, 800 (9th Cir. 2001) (per curiam) (requiring petitioner to show that “extraordinary circumstances” were the “but-for and proximate cause of his untimeliness”).
Third, Stucky contends that he is entitled to equitable tolling because gaining access to the law library or any legal assistance at the library was “difficult.” This argument fails to warrant equitable tolling. Stucky does not support his contention with any argument or facts. See United States v. $22,474.00 in U.S. Currency, 246 F.3d 1212, 1218 (9th Cir. 2001) (declining to address contention unsupported by argument). Further, the record contains an affidavit by the law library coordinator stating that all inmates have access to the library. See Allen, 255 F.3d at 800. Lastly, Stucky is not entitled to legal assistance for post-conviction relief. See Miranda, 292 F.3d at 1068.
In the alternative, Stucky contends that this court should remand his case, pursuant to Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000) (en banc) (per curiam), for an evidentiary hearing. A remand is not warranted in this case. Unlike Whalem/Hunt, Stocky’s evidentiary record is adequately developed. See 28 U.S.C. § 2254(e)(2); cf. Whalem/Hunt, 233 F.3d at 1148 (remanding when the district court had previously rejected as a matter of law petitioner’s equitable tolling argument, and thus failed to develop an evidentiary record on the issue).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.