ORDER GRANTING MOTION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS

CHARLES R. BREYER, District Judge.

I. INTRODUCTION

Rogelio May Ruiz seeks federal habeas relief from his state convictions. (First Am. Pet.) Respondent moves to dismiss the petition for such relief as untimely and unexhausted. (Mot. Dismiss.) Because the Court agrees that the petition is untimely, the Motion to Dismiss is GRANTED.

II. BACKGROUND

In November 2006, Petitioner pleaded guilty to four counts of lewd or lascivious acts on a child by force, and one count of oral copulation by use of force or injury in the Santa Clara County Superior Court. (First Am. Pet. Ex. A); Cal. Penal Code § 288(b)(1); Cal Penal Code § 288a(c)(2). On January 29, 2007, Petitioner received a sentence of forty years imprisonment. (First Am. Pet. Ex. D at 26, 28.) The California Court of Appeal affirmed the conviction on June 28, 2007. (First Am. Pet. Ex. G.) Petitioner did not seek review in the California Supreme Court. (First Am. Pet.)

Between 2007 and 2016, Petitioner filed four habeas petitions pro se with the Santa Clara County Superior Court, in which he challenged the conditions of his confinement, claimed he had the ineffective assistance of his trial counsel, and claimed he suffered cruel and unusual punishment. (First Am. Pet. Ex. H, J1, J2, L1, L2, N.) All four petitions were denied. (First Am. Pet. Ex. I, K, M, O.) Between May 30, 2014, and August 12, 2015, Petitioner filed five state habeas petitions pro se with the California Supreme Court, in which Petitioner raised claims concerning the conditions of his confinement. (First Am. Pet. at 4.) All five petitions were denied. (Id.) This federal habeas petition was filed on December 23, 2016. (Pet.)

III. DISCUSSION

A. Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a statute of limitation on petitions for a writ of habeas corpus filed by state prisoners. 28 U.S.C. § 2244(d)(1). Under AEDPA, petitions filed by prisoners challenging non-capital state convictions or sentences must be filed within one year of the date on which: (A) The judgment became final after the conclusion of direct review or the time passed for seeking direct review; (B) an impediment to filing an application created by unconstitutional state action was removed, if such action prevented petitioner from filing; (C) the constitutional right asserted was recognized by the Supreme Court, if the right was newly recognized by the Supreme Court and made retroactive to cases on collateral review; or (D) the factual predicate of the claim could have been discovered through the exercise of due diligence. Id.

B. Timeliness of the Petition

Here, because Petitioner did not file a petition for review in the California Supreme Court after the California Court of Appeal affirmed the conviction on June 28, 2007, his process of direct review came to an end forty days later, on August 7, 2007. (First Am. Pet. Ex. G); see Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (explaining that the AEDPA limitations period begins to run from expiration of the time for seeking direct review). Petitioner therefore had until August 8, 2008, to file a federal habeas petition within the one-year limitation period. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (calculating AEDPA's one-year limitation period according to Federal Rule of Civil Procedure 6(a)); (First Am. Pet. Ex. G). However, AEDPA's one-year limitation period is subject to statutory tolling under § 2244(d)(2) for the "time during which a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). Here, Petitioner filed his first state habeas petition in the Santa Clara County Superior Court on August 15, 2007, which was denied on September 26, 2007. (First Am. Pet. Ex. H, I.) Because his petition was properly filed within the one-year limitations period, the limitations period was tolled by forty-two days until September 18, 2008. (See First Am. Pet. Ex. H); 28 U.S.C. § 2244(d)(2). Petitioner did not file his second state habeas petition until October 16, 2014, after the limitations period expired on September 18, 2008. (First Am. Pet. Ex. J1.) His second petition for a writ of habeas corpus to the superior court did not revive the expired limitations period because AEDPA "does not permit the reinitiation of the limitations period that has ended before the state petition was filed." See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Therefore, Petitioner is not entitled to further statutory tolling.

Petitioner's federal habeas petition was not filed until December 23, 2016, which is well after the September 18, 2008, deadline. (Pet.) Thus, the petition is untimely unless Petitioner can show that he is entitled to equitable tolling. See Holland v. Florida, 560 U.S. 631, 645 (2010) (holding that petitioners may be entitled to equitable tolling of the AEDPA statute of limitations).

C. Equitable Tolling

To receive equitable tolling of AEDPA's one-year limitation period, a petitioner must show (1) that some "extraordinary circumstance" stood in his way and prevented him from filing on time, and (2) that he has been pursuing his rights diligently. Holland, 560 U.S. at 649. The diligence required for purposes of equitable tolling is "reasonable diligence," rather than "maximum feasible diligence." Id. at 653 (citation and internal quotation marks omitted). He also must show that the extraordinary circumstance "proximately caused" his late filing. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). This is a "very high bar" reserved for "rare cases." Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014). Equitable tolling determinations are highly fact-specific, and therefore require a flexible, case-by-case approach. Bills v. Clark, 628 F.3d 1092, 1097-98 (9th Cir. 2010). If more than one "extraordinary circumstance" is alleged, a petitioner can show that the circumstances together made a timely filing impossible, rather than proving that each factor independently made a timely filing impossible. Ramirez v. Yates, 571 F.3d 993, 1000 (9th Cir. 2009).

Petitioner claims that he is entitled to equitable tolling for the period between September 26, 2007, and December 23, 2016, because he: (1) reasonably relied on the incorrect legal advice of his court-appointed trial counsel; (2) cannot speak English and lacked access to Spanish-language legal materials and translators; (3) was repeatedly placed in administrative segregation where he lacked access to his personal legal materials; (4) suffered from mental health impairment while incarcerated; and (5) pursued his rights diligently during this time period. (Opp'n Mot. Dismiss at 6.) However, these circumstances do not meet the high standard to warrant equitable tolling for the period between September 26, 2007, and December 23, 2016. Because Petitioner argues that these factors both individually and collectively qualify as "extraordinary circumstance[s]" justifying equitable tolling, the Court addresses his claims both individually and collectively. (See Opp'n Mot. Dismiss at 6.)

1. Reliance on Incorrect Attorney Advice

Citing Gibbs v. Legrand, 767 F.3d 879 (9th Cir. 2014), Petitioner argues that he is entitled to equitable tolling because he was effectively abandoned by his trial counsel, who failed to correctly inform him of filing deadlines. (Opp'n Mot. Dismiss at 8); see Gibbs, 767 F.3d at 889. Petitioner claims that: (1) His trial counsel misinformed him about the appellate process when she advised him to file three different habeas petitions and wait two years between habeas filings; and (2) he did not receive notification of the superior court's denial of his 2007 state habeas petition until 2014 and thought that his appeal was properly pending throughout that time based on the incorrect advice of his trial counsel. (Pet'r Decl. ¶ 3, 5.)

The right to the assistance of effective counsel is derived from the right to counsel for that specific proceeding. Miranda, 292 F.3d at 1068 ("[B]ecause [petitioner] had no right to the assistance of his appointed appellate counsel regarding post-conviction relief, it follows that he did not have the right to that attorney's `effective' assistance, either."). Further, equitable tolling is not warranted for "garden variety" claims of excusable attorney neglect, such as missing a filing deadline. Holland, 560 U.S. at 651-52. However, more serious instances of attorney misconduct, such as where an attorney fails to communicate with the client and perform essential services, may qualify as an "extraordinary circumstance" warranting equitable tolling. Id.; see also Maples v. Thomas, 565 U.S. 266, 271 (2012) (holding that petitioner was abandoned by his attorneys because they ceased working on petitioner's case without informing him and without securing substitute counsel, and such abandonment was an extraordinary circumstance). The distinction lies with whether the attorney's error "is constructively attributable to the client and thus is not a circumstance beyond the litigant's control." Holland, 560 U.S. at 657 (Alito, J., concurring). A petitioner cannot be held constructively responsible for the conduct of an attorney who has "abandoned" petitioner by ceasing to operate as his agent in a meaningful way. Maples, 565 U.S. at 282.

Petitioner's claim of attorney abandonment fails because he was not represented by counsel for his post-conviction proceedings. (See First Am. Pet. Ex. H, J1, L1, N.) Petitioner's trial counsel could not have abandoned him for his post-conviction petitions. The Ninth Circuit held in Miranda that petitioners are not entitled to equitable tolling based on incorrect legal advice from counsel regarding proceedings for which that counsel was not retained, stating that the petitioner in Miranda "had no right to" the legal advice given by his direct review counsel regarding petitioner's post-conviction relief. Miranda, 292 F.3d at 1067-68. Moreover, in cases where equitable tolling has been seriously considered on grounds of attorney abandonment in post-conviction relief proceedings, petitioners were represented by counsel in those proceedings. See Holland, 560 U.S. at 635-36 (petitioner claiming attorney abandonment in post-conviction relief proceedings was represented by counsel in those proceedings); Maples, 565 U.S. at 270 (same); Gibbs, 767 F.3d at 882-83 (same); Spitsyn, 345 F.3d at 798 (same). Here, by contrast, Petitioner is claiming that he was abandoned by an attorney for a proceeding for which the attorney was not retained. (Opp'n Mot. Dismiss at 8); see Miranda, 292 F.3d at 1067-68.

Further, Petitioner's failure to receive notice of the denial of his state habeas petition by the superior court cannot be attributed to the conduct of his trial counsel, as Petitioner filed his state habeas petition pro se. See Gibbs, 767 F.3d at 886 (explaining that a petitioner proceeding pro se is entitled to notification directly from the court regarding a decision made on their post-conviction relief petition). Notice was not the responsibility of Petitioner's trial counsel, because she did not represent him in his post-conviction proceedings. Cf. id. at 886-87 (noting that because petitioner was represented by counsel, counsel was the one to receive docket notifications by the court). Petitioner was the sole individual responsible for ensuring he was informed of the status of his habeas petitions.

Even if the circumstances of Petitioner's representation did not bar him from making an attorney abandonment claim, trial counsel's miscalculation of the filing deadline does not amount to an "extraordinary circumstance" outside of the control of Petitioner. See Holland, 560 U.S. at 651-52 (holding that a missed deadline due to an attorney's "miscalculation" does not amount to more than negligence). Petitioner has incorrectly applied the reasoning in Gibbs to the facts of this case, arguing that like in Gibbs, Petitioner's attorney's conduct was extraordinary enough to constitute abandonment. (Opp'n Mot. Dismiss at 8.) In Gibbs, petitioner's attorney—who was assigned to represent petitioner in his petitions for post-conviction relief—failed to inform petitioner that the Nevada Supreme Court had affirmed the denial of his state habeas petition, failed to communicate with petitioner despite petitioner's numerous attempts to communicate, and delayed in returning petitioner's legal documents after petitioner terminated him as counsel. 767 F.3d at 883-84. In contrast, Petitioner's trial attorney made incorrect statements about federal habeas petition deadlines, which is not enough to constitute an "extraordinary circumstance." See Miranda, 292 F.3d at 1068 ("miscalculation of the limitations period . . . and . . . negligence in general do not constitute extraordinary circumstances sufficient to warrant equitable tolling.") (quoting Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001)).

Petitioner was not abandoned by counsel during his post-conviction proceedings because he was not represented by counsel during those proceedings and therefore could not have been abandoned during them. See id. at 1067-68. Regardless, miscalculation of filing deadlines does not constitute an "extraordinary circumstance" outside the control of Petitioner. Id. at 1068. For these reasons, Petitioner is not entitled to equitable tolling on the ground of attorney abandonment.

2. Lack of Spanish-Language Legal Materials

Petitioner next contends that he is entitled to equitable tolling on the ground that he was denied access to legal materials in the only language he understands—Spanish—and his occasional access to amateur translation services was insufficient. (Opp'n Mot. Dismiss at 9; Pet'r Decl. ¶ 4.) Petitioner is not entitled to equitable tolling on this ground, as he has failed to demonstrate that he was diligent in his efforts to procure Spanish-language materials and has not offered substantive proof that he lacked access to Spanish-language materials during large portions of his incarceration.

Language limitations may justify equitable tolling "if language barriers actually prevent timely filing." Mendoza v. Carey, 449 F.3d 1065, 1069 (9th Cir. 2006). Petitioners seeking equitable tolling on language barrier grounds must demonstrate that for the duration of the AEDPA time limitation, they were unable to procure legal materials in their language or translation assistance despite "diligent efforts." Id. at 1070.

Petitioner here offers little evidence that there were, in fact, no Spanish language legal materials in the prison libraries where he was incarcerated or any bilingual individuals willing to help him with his petitions. (See Opp'n Mot. Dismiss at 9-11.) In Mendoza, the petitioner filed forty-seven declarations (in addition to his own) from Spanish-speaking inmates stating that there were no Spanish-language legal materials or librarians and legal clerks who spoke Spanish at the prison. 449 F.3d at 1067-68. Here, Petitioner claims that he lacked access to Spanish-language legal materials from September 2, 2008, to September 29, 2009, when he was housed at Salinas Valley State Prison, and after September 29, 2009, when he was transferred to Correctional Training Facility (Soledad). (Pet'r Decl. ¶ 9(c)-(d).) Specifically, Petitioner claims that he "believe[s] Correction[al] Training Facility did not have Spanish-language law library materials." (Pet'r Decl. ¶ 9(d).) Petitioner has offered no substantive evidence other than his Declaration to support his belief that these two facilities lacked Spanish-language legal materials.1 (See Opp'n Mot. Dismiss at 9-11.) Petitioner's stated belief is insufficient without evidence that he requested access and was denied or that in fact these facilities lacked Spanish-language legal materials. See Mendoza, 449 F.3d at 1067-68 (Petitioner detailed multiple incidents where he requested access to Spanish-language legal materials and was denied or discovered that such materials did not exist, in addition to forty-seven declarations from other Spanish speaking inmates confirming that the facility lacked Spanish-language legal materials.). Further, it is unclear where Petitioner was held prior to September 2, 2008, and whether that facility had Spanish-language legal materials. (See Pet'r Decl. ¶ 9.)

Petitioner has also failed to demonstrate that he was diligent in his efforts to procure Spanish-language legal materials or translation services. In Mendoza, the Ninth Circuit held that the inability to understand English "`in and of itself, does not automatically' justify equitable tolling." 449 F.3d at 1070-71 (quoting Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir. 2002)). Even in his declaration, Petitioner has not described any instances where he attempted to obtain Spanish-language legal materials and was unable to access such materials. See Torres v. Dexter, 662 F.Supp.2d 1156, 1160-61 (C.D. Cal. 2009) (explaining that the petitioner failed to make a showing that he was diligent in his efforts to obtain Spanish-language legal materials while incarcerated).

Lastly, Petitioner has failed to account for the time most critical to his equitable tolling claim—from the denial of his first state habeas petition on September 26, 2007, to the expiration of his AEDPA deadline on September 18, 2008. (Pet'r Decl. ¶ 9(a)-(w); Opp'n Mot. Dismiss at 9-11); see Gibbs, 767 F.3d at 884-85 (explaining that the petitioner who was 193 days late in filing his federal habeas petition had to establish that he was entitled to equitable tolling "at least" for 193 days prior to the AEDPA deadline). Because reinitiation of the limitations period is not permitted, incidents that occurred after the expiration of the limitations deadline cannot be used to justify equitable tolling for the period before the expiration of the deadline. See Ferguson, 321 F.3d at 823 (holding that AEDPA does not permit reinitiation of the limitations period). As such, demonstrations that Petitioner lacked access to legal materials in Spanish after the expiration of his AEDPA limitations deadline on September 18, 2008, are insufficient.

Petitioner has failed to demonstrate that he lacked access to Spanish-language legal materials or translation services and that he was diligent in his efforts to procure such materials and services. He has also failed to account for the period of time prior to the expiration of the AEDPA deadline. Thus, Petitioner is not entitled to equitable tolling on the ground of lack of access to Spanish-language legal materials.

3. Access to Property and Legal Papers

Petitioner next contends that he is entitled to equitable tolling because he lacked access to his personal legal materials throughout his incarceration when he was moved to different facilities and placed in administrative segregation. (Pet'r Decl. ¶ 9(a)-(w), 11(a)-(c), 13(a)-(ee).) He is not entitled to equitable tolling on this ground, because he has failed to demonstrate that he was, in fact, denied access to his legal material throughout his transfers and while he was in administrative segregation. (See Opp'n Mot. Dismiss at 11-12.) Further, Petitioner makes no argument that denial of access to his legal materials and property made timely filing impossible. (See id.)

The Ninth Circuit has held that equitable tolling may be justified when a prisoner has been denied access to their legal files, if lack of access made timely filing impossible and the petitioner pursued his or her rights diligently. Ramirez, 571 F.3d at 998. The reasoning behind this rule is that it would be "`unrealistic to expect [a habeas petitioner] to prepare and file a meaningful petition on his own within the limitations period' without access to his legal file." Espinoza-Mathews v. California, 432 F.3d 1021, 1027-28 (9th Cir. 2005) (quoting Spitsyn, 345 F.3d at 801). However, lack of access must be absolute, because limited access to the prison law library is a routine part of prison life and therefore not "extraordinary." Ramirez, 571 F.3d at 998 (explaining that if "common day-to-day security restrictions in prison" justified equitable tolling, the exception would "swallow the rule").

Petitioner has failed to demonstrate that he was denied all access to his legal materials during the time he was in administrative segregation. Being placed in administrative segregation does not in and of itself justify equitable tolling, because placement in administrative segregation does not prove that Petitioner was denied all access to his legal materials. See Ramirez, 571 F.3d at 998 (holding that the petitioner was not entitled to equitable tolling for the time he remained in administrative segregation because he continued to have limited access to the law library). Therefore, Petitioner's claims that he was placed in administrative segregation, without evidence that he was actively denied access to his personal legal materials, does not justify equitable tolling.

Though Petitioner has repeatedly stated that he was denied access to his legal materials, Petitioner only offers one concrete example of a time in 2014 where Petitioner requested access to his legal materials and was denied. (Pet'r Decl. ¶ 9(v), 13(a).) In Espinoza-Matthews, the Ninth Circuit granted equitable tolling to a petitioner who was able to demonstrate that he had repeatedly inquired about his property and was denied access by prison officials. 432 F.3d at 1027-28. In contrast, Petitioner references one time in 2014 where he filed an internal administrative complaint inquiring into the whereabouts of his lost personal legal materials. (Pet'r Decl. ¶ 9(v), 13(a).) This one complaint is insufficient evidence of diligence, especially because the inquiry occurred six years past the expiration of the AEDPA deadline. (See id.); Gibbs, 767 F.3d at 884-85; Ferguson, 321 F.3d at 823 (holding that AEDPA does not permit reinitiation of the limitations period). Petitioner's one filing in 2014 fails to demonstrate that he was sufficiently diligent after the expiration of AEDPA deadline and fails to support any claim that Petitioner was diligent prior to the expiration of the AEDPA deadline on September 18, 2008.

Regardless, even if equitable tolling were warranted for the period of time in which Petitioner was placed in administrative segregation, Petitioner's federal habeas petition would still be untimely. According to Petitioner's declaration, he was placed in administrative segregation for forty-one days, July 23, 2008, to September 2, 2008. (Pet'r Decl. ¶ 9(b).) If Petitioner were granted forty-one days of equitable tolling, his new AEDPA deadline would be October 29, 2008. See Espinoza-Matthews, 432 F.3d at 1027-28 (granting equitable tolling for the number of days the petitioner was denied access to his personal legal materials while in administrative segregation). Even with this new deadline, the petition would still be untimely because the Petitioner was next placed in administrative segregation from February 15, 2010, to May 30, 2010, over a year after the October 29, 2008, deadline. (See Pet'r Decl. ¶ 9(e)); Ferguson, 321 F.3d at 823.

Because Petitioner has failed to demonstrate that he was denied access to his personal legal materials and was diligent in attempting to access his legal materials, Petitioner's claims that he lacked access to his legal materials as a result of movement between facilities and administrative segregation are insufficient to warrant equitable tolling.

4. Mental Health Impairment

Petitioner argues that he is entitled to equitable tolling because he experienced mental health crises and suicidal episodes that impaired his ability to timely file his federal habeas petition. (Opp'n Mot. Dismiss at 12-13.) However, under Ninth Circuit precedent, Petitioner's mental health issues do not amount to the level of impairment required to justify equitable tolling.

Mental incompetency is an extraordinary circumstance beyond the prisoner's control. Calderon v. United States, 163 F.3d 530, 541 (9th Cir. 1998), rev'd on other grounds by Woodford v. Garceau, 538 U.S. 202 (2003); see also Laws v. Lamarque, 351 F.3d 919, 923 (2003) (holding that mental incompetency justifies equitable tolling). Because competency standards vary "in relation to the task the defendant is expected to perform," competency in an AEDPA equitable tolling case must be determined by a petitioner's ability to comply with the AEDPA deadline. Bills, 628 F.3d at 1099-100. Equitable tolling due to mental impairment is permissible if: (1) A petitioner can show that his mental impairment was an "`extraordinary circumstance' beyond his control . . . by demonstrating the impairment was so severe that either (a) [the] petitioner was unable rationally or factually to personally understand the need to timely file, or (b) [the] petitioner's mental state rendered him unable personally to prepare a habeas petition . . .;" and (2) the petitioner was diligent in pursuing his claims. Id. (quoting Holland, 560 U.S. at 649). The Court must also consider whether a petitioner's mental health impairment prevented him from diligently seeking assistance. Id. at 1101.

Petitioner's claim of mental impairment fails to meet the first prong of the Bills test because Petitioner has failed to show that his mental impairment was sufficiently severe to render him unable to understand the need to timely file, or that his mental impairment made timely filing impossible. (See Opp'n Mot. Dismiss at 12-13); Bills, 628 F.3d at 1099-100. Petitioner claims that his thinking was "clouded" by his depression, which made it "difficult to focus on pursuing his legal challenge," and that he attempted to commit suicide in 2015 and 2016. (Opp'n Mot. Dismiss at 12-13; see Pet'r Decl. ¶ 9(a).) However, Petitioner does not claim that he was unable to understand the need to file a timely petition and has not explained why his depression was an extraordinary circumstance that prevented him from filing a timely petition. (See Opp'n Mot. Dismiss at 12-13.) His medical records indicate that though he was diagnosed with major depressive disorder, throughout this time his cognition remained within "normal limits" and his thinking remained "linear" and "logical." (Reply to Opp'n Mot. Dismiss Ex. 1 at AGO021-48.) Based on his undisputed medical records, Petitioner's mental impairment was not sufficiently severe and therefore fails the first prong of the Bills test. Cf. Forbess v. Franke, 749 F.3d 837, 840-41 (9th Cir. 2014) (finding that petitioner's mental impairment was sufficiently severe because his delusions that he was an undercover FBI agent and that his trial was a "sham" rendered him incapable of understanding the need to file a timely petition).

Petitioner also fails to meet the second prong of the Bills test because he has not shown that he was diligent in preparing his federal habeas petition during the relevant time period or that his mental impairment was the "but-for" cause of any delay. See Bills, 628 F.3d at 1100 ("Thus, a petitioner's mental impairment might justify equitable tolling if it interferes with the ability to understand the need for assistance, the ability to secure it, or the ability to cooperate with or monitor assistance the petitioner does secure."); (Opp'n Mot. Dismiss at 12-13.) Though Petitioner's suicide attempts in 2015 and 2016, (Pet'r Decl. ¶¶ 13(a)-13(ee)), may have been sufficiently severe as to hinder his ability to file a federal habeas petition in a timely manner, Petitioner has not met the burden of demonstrating that for the duration of the relevant time period he experienced mental health impairments that inhibited him from making a timely filing. Petitioner is not entitled to equitable tolling for mental health impairments that occurred six and a half years after the AEDPA deadline had passed. See Gibbs, 767 F.3d at 884-85.

Petitioner is therefore not entitled to equitable tolling on the ground of mental impairment because his mental impairment does not amount to incompetence for purposes of adhering to the AEDPA filing deadline.

5. Diligence

Petitioner claims that he has been diligent in pursuing his rights, as evidenced by the briefs he filed in the California Supreme Court in 2009 and 2011, and the eight state habeas petitions he filed in the California Supreme Court and the Santa Clara County Superior Court after he received the denial of his first state habeas petition in 2014. (Opp'n Mot. Dismiss at 7; First Am. Pet. Ex. H, J1, J2, L1, L2, N.)

Though Petitioner's filings demonstrate some diligence, they are insufficient to account for the amount of time necessary to make Petitioner's filing timely. See Gibbs, 767 F.3d at 884-85 (explaining that a petitioner requesting equitable tolling must account for time prior to the expiration of the AEDPA deadline). The brief Petitioner filed in 2009—his first filing after his first state habeas petition was denied—was after the AEDPA deadline had already passed, and therefore did not reinitiate the limitations period. See Ferguson, 321 F.3d at 823; (Opp'n Mot. Dismiss at footnote 1). As previously addressed, Petitioner was the sole individual responsible for receiving the superior court's denial of his habeas petition, and it is unclear why he was not made aware of the denial prior to 2014. (Pet'r Decl. ¶ 5.) The absence of an explanation significantly weakens Petitioner's argument that he was diligent in his efforts to file a timely petition, because it appears that Petitioner failed to exercise diligence in remaining informed about the status of his state habeas petition. Further, Petitioner's ten-year delay in filing his federal habeas petition connotes a lack of diligence on Petitioner's part. See Torres, 662 F. Supp. at 1160-61 (expressing skepticism that petitioner was diligent in obtaining Spanish-language legal materials or translation services given the eleven-year delay in filing his federal habeas petition).

6. Holistic Review

Finally, Petitioner argues that the combination of the circumstances addressed above entitle him to equitable tolling. (Opp'n Mot. Dismiss at 7.) Petitioners may be entitled to equitable tolling if multiple circumstances "together made a timely filing impossible." Ramirez, 571 F.3d at 1000. However, Petitioner has failed to meet the diligence prong for every claim, has failed to account for the relevant time period before the expiration of the AEDPA deadline (September 2007 to September 2008), and has failed to explain how all the circumstances alleged worked together to make a timely filing impossible. (See generally Opp'n Mot. Dismiss.)

Petitioner was the sole individual responsible for diligently pursuing his claims, and he has failed to offer sufficient evidence pointing to specific instances where he was actively pursuing his claims and was denied access to Spanish-language legal materials and his own legal materials despite his attempts to access those materials. (See Pet'r Decl. ¶¶ 9(a)-(w), 11(a)-(c), 13(a)-(ee).) Petitioner's most convincing evidence—his 2009 and 2011 filings, his state-post-conviction petitions between 2014 and 2015, and his 2014 request to access his lost legal file—all occurred after the passage of the AEDPA filing deadline. (See Pet'r Decl. ¶ 9(v); First Am. Pet. Ex. H, J1, J2, L1, L2, N; Opp'n Mot. Dismiss at footnote 1.) As previously discussed, incidents occurring after the passage of the AEDPA deadline are irrelevant unless the time prior to the passage of the deadline is accounted for. See Gibbs, 767 F.3d at 884-85. Here, the prior passage of time is not accounted for.

In the absence of sufficient diligence and an explanation of why and how the combination of circumstances made timely filing impossible, Petitioner's circumstances do not justify equitable tolling even when considered holistically.

IV. CONCLUSION

Petitioner has failed to demonstrate that he is entitled to equitable tolling on the grounds that he was abandoned by his attorney, lacked access to Spanish-language legal materials, lacked access to his own legal materials, was mentally incompetent for the purposes of complying with AEDPA, or diligently pursued his application. Having considered each of Petitioner's arguments individually and holistically, the Court finds that Petitioner's arguments are insufficient because they fail to meet the threshold for equitable tolling and fail to account for key portions of time in the almost seven-year gap between the denial of his first state habeas petition and the filing of his second state habeas petition. Because Petitioner's request is untimely and Petitioner has not raised claims that warrant an exception to AEDPA's limitation period, there is no need to address whether Petitioner's claims are exhausted. See Mena v. Long, 813 F.3d 907, 909-10 (9th Cir. 2016) (explaining that AEDPA's statute of limitations bars untimely exhausted claims); 28 U.S.C. § 2244(d)(1) (exceptions to the AEDPA limitations period include if the claim was newly recognized by the Supreme Court or could not have been discovered earlier); Lee v. Lampert, 653 F.3d 929, 932-33 (9th Cir. 2011) (holding that credible claims of actual innocence constitute an "equitable exception to AEDPA's limitations period").

For the foregoing reasons, the Respondent's Motion to Dismiss is GRANTED.

IT IS SO ORDERED