Andrew L. Mackey v. WILLIAM MUNIZ, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW L. MACKEY,
Petitioner-Appellant,
v.
WILLIAM MUNIZ, Warden,
Respondent-Appellee.
14-17260
D.C. No. 2:12-cv-01245-TLN-
CKD
MEMORANDUM*
Appeal from the United States District Court
for the District of Eastern California
Troy L. Nunley, District Judge, Presiding
Submitted June 6, 2016**
San Francisco, California
Before: SILVERMAN and NGUYEN, Circuit Judges, and GARBIS, Senior
District Judge.***
FILED
JUL 19 2016
MOLLY C. DWYER, CL
U.S. COURT OF APPEA
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Marvin J. Garbis, Senior United States District Judge
for the District of Maryland, sitting by designation.

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Andrew Mackey appeals the district court’s dismissal of his petition for a
writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we
affirm.
Mackey, who suffers from severe mental impairments, filed the instant
habeas petition challenging his conviction of child molestation related offenses
after the expiration of the one-year statute of limitations set forth in 28 U.S.C. §
2244(d). Conspicuously missing from the record is any testimony from Mackey to
the effect that he wanted to file a federal habeas petition but did not have the ability
to do so himself and did not know how to get help.
The district court dismissed the petition as untimely and declined to apply
equitable tolling to extend the limitations period. Reviewing the dismissal of
Mackey’s petition de novo, United States v. Avery, 719 F.3d 1080, 1082 (9th Cir.
2013), we agree with the district court that equitable tolling is inappropriate
because the record does not reflect any diligence on Mackey’s part in attempting to
file his federal habeas petition within the limitations period. See Holland v.
Florida, 560 U.S. 631, 649 (2010) (noting a petitioner is eligible for equitable
tolling only if he pursued rights diligently and would have timely filed but for
some extraordinary circumstance); see also Yow Ming Yeh v. Martel, 751 F.3d
2

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1075, 1078 (9th Cir. 2014) (“[E]ven in cases of debilitating impairment the
petitioner must still demonstrate diligence.”). Therefore, the petition was untimely
and was properly dismissed.1
AFFIRMED.
1 Because Mackey’s petition was not timely filed, the question of whether Mackey
exhausted his state remedies is moot.
3

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