United States v. Barnes

MEMORANDUM ** Herman Barnes, Jr., a federal prisoner, appeals pro se the dismissal as untimely of his 28 U.S.C. § 2255 motion to vacate the sentence imposed following his conviction by bench trial for armed bank robbery and other crimes. He contends that the district court should have disregarded the one-year statute of limitations due to the merit of his claim that he was denied his Sixth Amendment right to effective assistance of counsel when on direct appeal his attorney failed to raise the issue of an insanity defense. Barnes has not shown that he is entitled to equitable tolling of the statute of limitations because extraordinary circumstances beyond his control made it impossible for him to file his § 2255 motion on time. See Roy v. Lampert, 465 F.3d 964, 969 (9th Cir.2006), petition for cert. filed (U.S. Jan. 22, 2007) (No. 06-1015). He also has not established a fundamental miscarriage of justice. See Majoy v. Roe, 296 F.3d 770 (9th Cir.2002) (holding that time-barred claims may be heard if evidence shows that it is more likely than not that no reasonable juror would have found defendant guilty beyond a reasonable doubt). We therefore affirm the district court’s judgment. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.