Ben Noyakuk v. Craig Turnbull

* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BEN NOYAKUK,
Petitioner - Appellant,
v.
CRAIG TURNBULL,
Respondent - Appellee.
No. 08-35946
D.C. No. 3:07-cv-00191-JWS-
DMS
MEMORANDUM*
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted June 26, 2012
Anchorage, Alaska
Before: GOODWIN, W. FLETCHER, and M. SMITH, Circuit Judges.
Petitioner-Appellant Ben Noyakuk appeals the dismissal of his habeas
corpus petition as untimely. As the facts and procedural history are familiar to the
parties, we do not recite them here except as necessary to explain our disposition.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
JUL 16 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2
Noyakuk concedes that he filed his habeas corpus petition under 28 U.S.C. §
2254 two days after the expiration of the one-year statute of limitations. 28 U.S.C.
§ 2244(d)(1). However, he contends that he is entitled to equitable tolling because
his attorney at trial and on direct appeal led him to believe that it was not possible
to file a habeas petition to challenge the denial of a suppression motion.
To receive equitable tolling, the petitioner must show: “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood
in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Mere attorney
negligence does not give rise to equitable tolling. In Frye v. Hickman, 273 F.3d
1144 (9th Cir. 2001), this court held that the “miscalculation of the limitations
period by [petitioner’s] counsel and his negligence in general do not constitute
extraordinary circumstances sufficient to warrant equitable tolling.” Id. at 1146;
see also Miranda v. Castro, 292 F.3d 1063, 1068 (9th Cir. 2002) (same). The
statement by Noyakuk’s attorney was incorrect and likely negligent, but under
Frye and Miranda, such negligence does not rise to the level of “extraordinary
circumstances” that allow equitable tolling. Accordingly, we agree with the
district court that Noyakuk’s petition was untimely.
AFFIRMED.

-- 2 of 2 --