Herrera v. Butler

MEMORANDUM ** Petitioner Theodore Herrera contends that the district court erroneously dismissed his first petition for a writ of habeas corpus, and that either equitable tolling or relation back saves his second petition, which he filed over a year and a half after the dismissal of the first one, from dismissal under 28 U.S.C. § 2244 (d). We hold that equitable tolling is unavailable because Herrera did not pursue his rights diligently. See Pace v. DiGuglielmo, 544 U.S. 408, 418-19 , 125 S.Ct. 1807 , 161 L.Ed.2d 669 (2005); Guillory v. Roe, 329 F.3d 1015, 1018 (9th Cir.2003) (as amended). For the same reason, undue delay, Herrera’s second petition does not relate back to his first petition. See Anthony v. Cambra, 236 F.3d 568, 577 (9th Cir.2000) (citing Foman v. Davis, 371 U.S. 178, 182 , 83 S.Ct. 227 , 9 L.Ed.2d 222 (1962)). AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.