Jacob Daniel Wolf v. JOE A. LIZARRAGA, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACOB DANIEL WOLF,
Petitioner-Appellant,
v.
JOE A. LIZARRAGA, Warden,
Respondent-Appellee.
No. 17-56963
D.C. No. 2:17-cv-00726-JPR
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Jean Rosenbluth, Magistrate Judge, Presiding
Argued and Submitted November 8, 2019
Pasadena, California
Before: SCHROEDER and FRIEDLAND, Circuit Judges, and SILVER,** District
Judge.
Petitioner Jacob Wolf was convicted in California Superior Court of making
criminal threats and stalking. He appeals the district court’s dismissal of his
federal habeas petition as untimely. We affirm.
FILED
NOV 29 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 Honorable Roslyn O. Silver, United States District Judge for the
District of Arizona, sitting by designation.

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Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a
state prisoner may petition for a writ of habeas corpus in federal court for one year
after his conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). The district court
ruled that Wolf’s conviction became final on February 10, 2015, when the time for
directly appealing his conviction expired. Wolf contends that his conviction
became final on May 11, 2015, when the time for seeking review of the California
Court of Appeal’s dismissal of his attempted appeal expired. But Wolf did not file
his petition until January 25, 2017, so even assuming that his conviction became
final on the date most favorable to Wolf, his federal habeas petition was filed more
than one year later.
Congress has provided for statutory tolling of AEDPA’s limitations period
when state post-conviction review is pending. 28 U.S.C. § 2244(d)(2). In
California, post-conviction review is considered pending both during lower court
proceedings and also while the petitioner prepares to seek review from a higher
court, provided the period between the time of the lower court decision and the
time an appeal is filed is “reasonable.” Valdez v. Montgomery, 918 F.3d 687, 690
(9th Cir. 2019). Generally, a reasonable time for filing an appeal is between 30
and 60 days. Evans v. Chavis, 546 U.S. 189, 201 (2006). Here, Wolf filed his
third state habeas petition, which was nearly identical to his prior petitions, 175
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days after the denial of his second state petition. He failed to adequately justify
this unreasonable delay, and thus is not entitled to statutory tolling for that delay.
A petitioner may be entitled to equitable tolling of AEDPA’s statute of
limitations, however, if he diligently pursued his rights and extraordinary
circumstances caused his late filing. Holland v. Florida, 560 U.S. 631, 649 (2010).
Wolf argues that he was diligent and his delay was due to his attorney’s negligence
as well as to his own limited access to legal resources. We have held that ordinary
attorney negligence is not an extraordinary circumstance. See Doe v. Busby, 661
F.3d 1001, 1012 (9th Cir. 2011). Moreover, Wolf was not even represented by an
attorney for most of the 175-day delay between the denial of his second state
petition and the filing of his third state petition. And, limitations on access to legal
resources in prison are not considered extraordinary circumstances but are inherent
in prison life. Chaffer v. Prosper, 592 F.3d 1046, 1049 (9th Cir. 2010). Wolf has
not sufficiently alleged extraordinary circumstances caused excessive delay
warranting equitable tolling.
The district court correctly ruled that Wolf’s federal petition was untimely.
AFFIRMED.
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