Bill Hemenway v. State of Washington , 409 F. App'x 93 ( 2010 )

FILED
UNITED STATES COURT OF APPEALS NOV 10 2010
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S . CO U RT OF AP PE A LS
BILLY JO LYNN HEMENWAY, No. 09-35245
Petitioner - Appellant, D.C. No. 3:07-cv-05634-RBL
Western District of Washington
v.
STATE OF WASHINGTON and JEFF ORDER
UTTECHT,
Respondents - Appellees.
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
The panel has voted to grant the petition for panel rehearing.
The memorandum disposition filed on August 2, 2010, is withdrawn. A
replacement memorandum disposition will be filed concurrently with this order.
Appellant shall have 14 days from the date judgment is entered to file a
petition for rehearing. See Fed. R. App. P. 40. If appellant files a petition for
rehearing, the state may file an answer within 14 days thereafter, whereupon the
matter shall be deemed submitted.
09-35245
FILED
NOT FOR PUBLICATION NOV 10 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
BILL JO LYNN HEMENWAY, No. 09-35245
Petitioner - Appellant, D.C. No. 3:07-cv-05634-RBL
v.
MEMORANDUM *
STATE OF WASHINGTON and JEFF
UTTECHT,
Respondents - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
**
Submitted July 21, 2010
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
Washington state prisoner Billy Jo Lynn Hemenway appeals from the
district court's judgment dismissing his 28 U.S.C. y2254 petition as untimely. We
have jurisdiction under 28 U.S.C. y2253(a), and we affirm.
*
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).
Hemenway contends that he was entitled to equitable tolling of AEDPA's
statute of limitations due to his dyslexia and illiteracy. This court reviews de novo
a district court's order denying a habeas petition on statute of limitations grounds.
Randle v. Crawford, 604 F.3d 1047, 1052 (9th Cir. 2010). The denial of an
evidentiary hearing in connection with a claim of entitlement to equitable tolling is
reviewed for abuse of discretion. See Mendoza v. Carey, 449 F.3d 1065, 1068 (9th
Cir. 2006).
Excluding the time during which his state petitions were properly pending,
see 28 U.S.C. y2244(d)(2), Hemenway's federal petition was filed more than a
year beyond AEDPA's one-year statute of limitations. See 28 U.S.C. y2244(d)(1).
A litigant seeµing equitable tolling of AEDPA's statute of limitations bears
the burden of establishing his entitlement to such tolling. Mendoza, 449 F.3d at
1068. In this case, Hemenway has not shown that his literacy limitations caused
his delay in filing his federal habeas petition. Indeed, he was able to file state and
federal pleadings, and participate actively in his own representation both at his trial
and on his direct appeal.
The district court did not abuse its discretion in denying Hemenway's
request for an evidentiary hearing. See Mendoza, 449 F.3d at 1068.
AFFIRMED.
09-35245