Summary
In Martinez, the United States Supreme Court held that "[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial," creating a narrow exception to the rule that ineffective assistance of counsel on collateral review does not establish cause to excuse a procedural default.
Summary of this case from Panighetti v. GasteloOpinion
This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Rick Jones, Tucson, AZ, for Petitioner-Appellant.
Robert Bradford Martinez, Buckeye, AZ, pro se.
Diane M. Acosta, Esq., AGAZ--Office of the Arizona Attorney General, Phoenix, AZ, for Respondent-Appellee.
Appeal from the United States District Court for the District of Arizona, Raner C. Collins, District Judge, Presiding. D.C. No. CV-03-00243-RCC.
Before: PREGERSON, CANBY, and THOMAS, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Arizona state prisoner Robert Bradford Martinez appeals the district court's dismissal as untimely of his 28 U.S.C. § 2254 habeas petition challenging his conviction for first degree murder, armed robbery, kidnaping and theft by means of transportation. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, see Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), and we affirm.
Martinez contends that he is entitled to equitable tolling of the Antiterrorism and Effective Death Penalty Act's one-year period
Page 383.
of limitation due to his limited education, his reliance on other prisoners to file his petition, and his lack of access to legal materials and assistance given his custody status. We disagree. Even assuming these problems to be true, they do not constitute extraordinary circumstances which made timely filing impossible. See id. at 1107.
Martinez's request to broaden the certificate of appealability is granted. See 9th Cir. R. 22-1(e); Isley v. Arizona Dep't of Corr., 383 F.3d 1054, 1055-56 (2004) (holding that appellant is entitled statutory tolling from date of filing notice of post-conviction relief petition). However, even with the benefit of statutory tolling, the petition is still untimely.
AFFIRMED.