Rex B. Cruse v. Scott Russell

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REX B. CRUSE,
Petitioner - Appellant,
v.
SCOTT RUSSELL,
Respondent - Appellee.
No. 15-35290
D.C. No. 2:14-cv-01118-MJP
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Submitted April 26, 2016**
Before: McKEOWN, WARDLAW, and PAEZ, Circuit Judges.
Washington state prisoner Rex B. Cruse appeals pro se from the district
court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition as time barred.
We have jurisdiction under 28 U.S.C. § 2253. We review de novo, see Ramirez v.
Yates, 571 F.3d 993, 997 (9th Cir. 2009), and we affirm.
FILED
APR 29 2016
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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Cruse contends that he is entitled to equitable tolling in light of his reliance
on erroneous third-party legal advice, pro se status, limited access to legal
materials in his prison’s law library, and lack of “fair notice” that the statute of
limitations was running. “A petitioner seeking equitable tolling bears the heavy
burden of showing (1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way.” Chaffer v. Prosper, 592 F.3d
1046, 1048 (9th Cir. 2010) (internal quotation omitted). Cruse’s reliance on
erroneous legal advice, pro se status, and limited law library access do not
constitute extraordinary circumstances. See Ramirez, 571 F.3d at 998 (access to
law library); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (pro se
status); Miranda v. Castro, 292 F.3d 1063, 1066-67 (9th Cir. 2002) (erroneous
legal advice). Furthermore, there is no authority to support Cruse’s contention that
he was entitled to “fair notice” that the statute of limitations was running. Thus,
we conclude that none of Cruse’s allegations, nor their combination, so interfered
with his ability to file a timely federal habeas petition as to warrant equitable
tolling. See Chaffer, 592 F.3d at 1049.
We treat Cruse’s additional argument as a motion to expand the certificate of
appealability and deny the motion. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195
F.3d 1098, 1104-05 (9th Cir. 1999).
AFFIRMED.
15-35290 2

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