Eulalio Guerrero, Ii v. Frank X. Chavez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EULALIO GUERRERO, II,
Petitioner - Appellant,
v.
FRANK X. CHAVEZ,
Respondent - Appellee.
No. 11-16333
D.C. No. 2:10-cv-00905-JAM-
DAD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted September 9, 2013
San Francisco, California
Before: SCHROEDER and BYBEE, Circuit Judges, and BATTAGLIA, District
Judge.**
California State prisoner Eulalio Guerrero appeals the district court’s
dismissal of his 28 U.S.C. § 2254 habeas corpus petition challenging his 2006
child molestation conviction after a jury trial. The district court dismissed the
FILED
SEP 19 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 Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.

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petition as untimely because it was filed more than one year after the state
conviction became final. 28 U.S.C. § 2244(d)(1). Petitioner claims that he is
entitled to equitable tolling.
The Supreme Court has held that a petitioner is entitled to equitable tolling
only if he has been diligent, and extraordinary circumstances prevented him from
timely filing. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). Petitioner’s only
argument is that he relied for two years on his daughter’s representations that she
would find him a lawyer. Guerrero was not diligent, for he has made no showing
that he made efforts to obtain counsel himself or make use of the prison law
library. See Bills v. Clark, 628 F.3d 1092, 1101 (9th Cir. 2010) (to be diligent,
must make use of whatever assistance is available). There are no extraordinary
circumstances similar to the abandonment by counsel that occurred in Maples v.
Thomas, 132 S. Ct. 912 (2012).
AFFIRMED.
2

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