FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREW PASQUALE CHAFFER, 

No. 07-16853 Petitioner-Appellant,

D.C. No.

v.  CV-06-00950-LKK

K. PROSPER; EDMUND G. BROWN,

ORDER AND JR.,* Attorney General, OPINION Respondents-Appellees. 

Appeal from the United States District Court

for the Eastern District of California

Lawrence K. Karlton, District Judge, Presiding

Argued and Submitted

August 14, 2008—San Francisco, California

Submission Withdrawn September 2, 2008

Resubmitted September 1, 2009

Filed January 19, 2010

Before: Diarmuid F. O’Scannlain and Barry G. Silverman,

Circuit Judges, and James K. Singleton,**

Senior District Judge.

Per Curiam Opinion

*Edmund G. Brown, Jr. is substituted for his predecessor, Bill Lockyer,

as Attorney General of the State of California, pursuant to Fed. R. App.

P. 43(c)(2). 

**The Honorable James K. Singleton, United States District Judge for

the District of Alaska, sitting by designation. 

1209
COUNSEL

Timothy J. Foley, Sacramento, California, argued the cause

for the appellant and filed briefs. With him on the briefs was

Daniel J. Broderick.

David Andrew Eldridge, Deputy Attorney General, Sacramento, California, argued the cause for the appellees and filed

a brief. With him on the brief were Edmund G. Brown, Jr.,

Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Michael P. Farrell, Senior Assistant Attorney General, and Brian G. Smiley, Supervising Deputy Attorney General.

ORDER

Appellees’ request to publish the unpublished memorandum disposition is GRANTED. The memorandum disposition

filed September 18, 2009, is modified by changing <known to

the parties> to <set forth in Chaffer v. Prosper, 542 F.3d 662,

CHAFFER v. PROSPER 1211
663-65 (9th Cir. 2008),>. So modified, the memorandum disposition is redesignated as a per curiam opinion and is filed

concurrently herewith.

The panel has unanimously voted to deny the petition for

rehearing. Judges O’Scannlain and Silverman have voted to

deny the petition for rehearing en banc, and Judge Singleton

so recommends. The full court has been advised of the petition for rehearing en banc and no judge of the court has

requested a vote on it. Fed. R. App. P. 35(b). The petition for

rehearing and the petition for rehearing en banc are DENIED.

No subsequent petitions for rehearing or rehearing en banc

may be filed.

OPINION

PER CURIAM:

Chaffer appeals from the district court’s dismissal of his

federal habeas petition for failure to comply with the one-year

statute of limitations of the Antiterrorism and Effective Death

Penalty Act (“AEDPA”). 28 U.S.C. § 2244(d)(1). We review

de novo whether the statute of limitations should be tolled.

Townsend v. Knowles, 562 F.3d 1200, 1204 (9th Cir. 2009).

The facts are set forth in Chaffer v. Prosper, 542 F.3d 662,

663-65 (9th Cir. 2008), and need not be repeated here except

as necessary. 

I

Chaffer argues that he is entitled to statutory tolling for the

115-day gap between the denial of his first habeas petition in

the Lassen County Superior Court and the filing of his second

habeas petition in the California Court of Appeal, as well as

for the 101-day gap between the denial of his second habeas

1212 CHAFFER v. PROSPER
petition and the filing of his third habeas petition in the California Supreme Court. Id. § 2244(d)(2). 

[1] Under California’s indeterminate timeliness rule, “[a]s

long as the prisoner filed a petition for appellate review within

a ‘reasonable time,’ he c[an] count as ‘pending’ (and add to

the 1-year time limit) the days between (1) the time the lower

state court reached an adverse decision, and (2) the day he

filed a petition in the higher state court.” Evans v. Chavis, 546

U.S. 189, 193 (2006). Until the California Supreme Court

indicates otherwise, we “operate[ ] on the assumption that

California law . . . [does] not differ significantly from the laws

of other States, i.e., that California’s ‘reasonable time’ standard [does] not lead to filing delays substantially longer than

those in States with determinate timeliness rules.” Id. at 198.1

[2] Because Chaffer’s filing delays were substantially longer than the “30 to 60 days” that “most States” allow for filing

petitions, and Chaffer’s petitions offered no justification for

the delays as required under California law, In re Swain, 209

P.2d 793, 795-96 (Cal. 1949)), we fail to see how “unexplained delay[s] of this magnitude could fall within the scope

of the federal statutory word ‘pending,’ ” Evans, 546 U.S. at

201 (emphasis added); see also Waldrip v. Hall, 548 F.3d

729, 734-35 (9th Cir. 2008). Chaffer is therefore not entitled

to statutory tolling.

II

[3] Chaffer also argues that equitable tolling can save his

federal habeas petition from untimeliness. A petitioner seek1California has not provided any guidance as to what constitutes a

timely non-capital habeas petition. See King v. LaMarque, 464 F.3d 963,

966 (9th Cir. 2006). The Supreme Court has suggested that we “seek guidance on the matter by certifying a question to the California Supreme

Court in an appropriate case.” Evans, 546 U.S. at 199. We did so, Chaffer

v. Prosper, 542 F.3d 662 (9th Cir. 2008), but the court denied certification,

Chaffer v. Prosper, No. S166400 (filed Mar. 11, 2009). 

CHAFFER v. PROSPER 1213
ing equitable tolling bears the heavy burden of showing “(1)

that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way.” Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005).

A

[4] Chaffer alleges that his pro se status, a prison library

that was missing a handful of reporter volumes, and reliance

on helpers who were transferred or too busy to attend to his

petitions justified the delay; however, these circumstances are

hardly extraordinary given the vicissitudes of prison life, and

there is no indication in the record that they made it “impossible” for him to file on time. Ramirez v. Yates, 571 F.3d 993,

997 (9th Cir. 2009).

While denial of access to legal files may in some cases constitute “the type of external impediment for which we [grant]

equitable tolling,” Waldron-Ramsey v. Pacholke, 556 F.3d

1008, 1013 (9th Cir. 2009), Chaffer’s allegations are insufficient. First, “he entrusted [his inmate law clerk] with his legal

documents at his peril.” United States v. Cicero, 214 F.3d

199, 205 (D.C. Cir. 2000). Second, although he alleges that he

lacked access to his files the entire time his inmate law clerk

was working on his petition, he “does not point to specific

instances where he needed a particular document . . . and

could not have procured that particular document when needed.” Waldron-Ramsey, 556 F.3d at 1013-14. Even crediting

his assertion that he lacked access to his files for 46 days,

rather than the 4 days post-transfer as supported by the record,

tolling the entire period still makes his federal filing too late

because he needs all but six days tolled. 

Chaffer’s mistaken reliance on Saffold v. Carey, 312 F.3d

1031 (9th Cir. 2003), as creating a bright-line rule for timeliness of California habeas petitions is also unavailing. Harris

v. Carter, 515 F.3d 1051 (9th Cir. 2008), is distinguishable,

as there the petitioner relied on a correct reading of then1214 CHAFFER v. PROSPER
current case law, whereas here Chaffer relied on a misunderstanding. Furthermore, Harris held that equitable tolling

applies “in the rare case where a petitioner relies on our

legally erroneous holding in determining when to file a federal habeas petition.” Id. at 1057 (emphasis added). Here

Chaffer relied on Saffold in determining when to file his state

habeas petitions.

[5] Because Chaffer cannot point to any extraordinary circumstances that prevented him from timely filing, he is not

entitled to equitable tolling. 

B

[6] Chaffer has also failed to show that he has been diligently pursuing his rights. He claims that he “did everything

in [his] power” to file his habeas petitions on time, yet, tellingly, he does not controvert the prison librarian’s declaration

that, according to access logs and her own recollection, he

never ventured into the prison library between October 2004

and August 2006. Indeed, he fails to make any specific “alleg-

[ation] what [he] did to pursue [his] claims and complain

about [his] situation[ ].” Roy v. Lampert, 465 F.3d 964, 973

(9th Cir. 2006). While he asserts that he relied on “whatever

volunteer assistance [he] could find” to file in a “timely and

diligent manner,” the “fact that an inmate law clerk was

assisting in drafting the state petition does not relieve [him]

from the personal responsibility of complying with the law.”

Marsh v. Soares, 223 F.3d 1217,1220 (10th Cir. 2000). Consequently, Chaffer has not made the requisite showing of diligence to warrant equitable tolling.

III

For the foregoing reasons, the judgment of the district court

dismissing Chaffer’s habeas petition as untimely is

AFFIRMED.

CHAFFER v. PROSPER 1215