Mario Lopes-Benitez v. E.K. MCDANIEL, Warden and NEVADA ATTORNEY GENERAL

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO LOPES-BENITEZ,
Petitioner - Appellant,
v.
E.K. MCDANIEL, Warden and NEVADA
ATTORNEY GENERAL,
Respondents - Appellees.
No. 12-16565
D.C. No. 3:08-cv-00543-ECR-
VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Senior District Judge, Presiding
Argued and Submitted November 8, 2013
San Francisco, California
Before: FARRIS, BLACK ** , and IKUTA, Circuit Judges.
Mario Lopes-Benitez appeals the district court’s dismissal of certain claims
in his amended habeas petition as untimely under 28 U.S.C. § 2244(d). We have
jurisdiction under 28 U.S.C. § 2253(a), and we affirm.
FILED
NOV 22 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Susan H. Black, Senior Circuit Judge for the U.S.
Court of Appeals for the Eleventh Circuit, sitting by designation.

-- 1 of 3 --

On the facts of this case, extraordinary circumstances did not prevent Lopes
from timely filing the new claims he raised in the amended petition. Cf. Holland v.
Florida, 130 S. Ct. 2549, 2562–63 (2010). Because the district court equitably
tolled the one-year statute of limitations until Lopes filed his initial petition on
October 1, 2008, Lopes had a full year to file any amended petition. 28 U.S.C.
§ 2244(d)(1). The district court appointed counsel on April 1, 2009, with six
months remaining before the deadline for filing any new claims. Because Lopes
had the assistance of counsel for six months, the untimeliness of the petition is due
not to extraordinary circumstances, but to his attorney’s delay or lack of diligence.
Cf. Coleman v. Thompson, 501 U.S. 722, 755–57 (1991). Lopes consequently fails
to clear the “very high” threshold necessary to trigger equitable tolling. Miranda v.
Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (internal quotation marks and
alterations omitted).
Nor is statutory tolling appropriate. Even assuming the prison library
system was so deficient as to constitute a state-created constitutional impediment,
the record shows that Lopes failed to interact with the library after he filed his
initial petition. Consequently, there was no “causal connection between the
unlawful impediment and [Lopes’s] failure to file a timely habeas petition.”
Bryant v. Schriro, 499 F.3d 1056, 1060 (9th Cir. 2007).
2

-- 2 of 3 --

Finally, the district court appropriately concluded that the four new claims at
issue on appeal did not relate back. No “common ‘core of operative facts’ unit[es]
the original and newly asserted claims.” Mayle v. Felix, 545 U.S. 644, 659 (2005).
Moreover, the district court did not err in declining to consider the state court
records that Lopes filed months after his initial petition as raising the four new
claims, because such claims were not “clear[ly] and repeated[ly] reference[d]” in
his petition. Dye v. Hofbauer, 546 U.S. 1, 4 (2005); Fed. R. Civ. P. 10(c); Rules
Governing Section 2254 Cases in the United States District Courts 2(c).
AFFIRMED.
3

-- 3 of 3 --