Barry Lowell Barger v. BRAD CAIN, Superintendent, Snake River Correctional Institution

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BARRY LOWELL BARGER,
Petitioner-Appellant,
v.
BRAD CAIN, Superintendent,
Snake River Correctional Institution
Respondent-Appellee.
No. 17-35888
D.C. No. 2:16-cv-01314-PK
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Marco Hernandez, District Judge, Presiding
Submitted March 4, 2019**
Portland, Oregon
Before: GRABER and BERZON, Circuit Judges, and TUNHEIM, Chief District
Judge.***
FILED
MAR 06 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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 John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.

-- 1 of 3 --

Petitioner Barry Lowell Barger appeals the district court’s order denying his
28 U.S.C. § 2254 petition for writ of habeas corpus for failing to file the petition
within the statute of limitations period and the district court’s denial of an
evidentiary hearing on equitable tolling. For the reasons that follow, we affirm.
We review the denial of a § 2254 petition de novo, Leavitt v. Arave, 383
F.3d 809, 815 (9th Cir. 2004) (per curiam), and the denial of an evidentiary hearing
for an abuse of discretion, United States v. Rodrigues, 347 F.3d 818, 823 (9th Cir.
2003).
1. With regard to the statute of limitations, Barger is not entitled to
equitable tolling. Equitable tolling, as a general rule, requires extraordinary
circumstances, beyond a prisoner’s control, that make it impossible to file a timely
petition. Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010).
Barger has failed to show such circumstances here. The circumstances
outside of Barger’s control—specifically, the Oregon Supreme Court’s decision to
affirm one of his convictions and remand another for entry of acquittal—were not
extraordinary. They were merely the normal progression of a case. Further, the
Oregon Supreme Court’s decision did not itself cause Barger’s untimeliness.
Instead, Barger’s untimeliness was caused by his misunderstanding of when his
judgment became final and his failure to seek clarification from his attorney.
2

-- 2 of 3 --

2. The district court did not abuse its discretion in denying an evidentiary
hearing. An evidentiary hearing is warranted if the petitioner makes “specific
factual allegations that, if true, state a claim on which relief could be granted.”
United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011) (quoting United
States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984)). The new facts Barger
would show at an evidentiary hearing address only his diligence in pursuing his
rights. They do not change that, as we noted above, no extraordinary
circumstances prevented Barger from timely filing his petition. Thus, even if all
the facts Barger alleges are true, he is still not entitled to equitable tolling.
AFFIRMED.
3

-- 3 of 3 --