James Walter Werby v. Mark Nooth

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. Appellant. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES WALTER WERBY,
Petitioner - Appellant,
v.
MARK NOOTH,
Respondent - Appellee.
No. 11-35217
D.C. No. 3:08-cv-01381-PK
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Submitted January 17, 2012**
Before: LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.
Oregon state prisoner James Walter Werby appeals from the district court’s
judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have jurisdiction
under 28 U.S.C. § 2253, and we affirm.
FILED
JAN 27 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-35217 2
Werby contends that he is entitled to equitable tolling because of the
restrictive conditions under which he was incarcerated. Even assuming this alleged
deprivation was an “extraordinary circumstance,” equitable tolling is not warranted
because Werby failed to show that he exercised diligence in pursuing federal relief
or that extraordinary circumstances prevented the timely filing of his section 2254
petition. See Holland v. Florida, 130 S. Ct. 2549, 2562 (2010).
Werby’s request that we remand for an evidentiary hearing is denied.
AFFIRMED.

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