Opinion
The 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NOT FOR PUBLICATION.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)
Theodore Herrera, Sr., Represa, CA, pro se.
Sharon M. Bunzel, Esq., O'Melveny & Myers, LLP, San Francisco, CA, for Plaintiff-Appellant.
Pamela K. Critchfield, Esq., Office of the California Attorney General, San Francisco, CA, for Respondent-Appellee.
Appeal from the United States District Court for the Northern District of California, Vaughn R. Walker, District Judge, Presiding. D.C. No. CV-03-04333-VRW.
Before: RYMER, T.G. NELSON, and W. FLETCHER, 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 9th Cir. R. 36-3.
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.