Trung Phan v. Matthew Cate

MEMORANDUM *** California state prisoner Trung Quang Phan appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction under 28 U.S.C. § 2253. We review de novo a district court’s dismissal of a federal habeas petition on statute of limitations grounds, and the denial of an evidentiary hearing for abuse of discretion. See Mendoza v. Carey, 449 F.3d 1065, 1068 (9th Cir.2006). We affirm. Phan, whose native language is Vietnamese, contends that he is entitled to equitable tolling because of his lack of English proficiency, the absence of Vietnamese language legal materials in the prison, and his inability to obtain assistance to file a federal habeas petition until 2010. This contention fails because Phan has not shown that he diligently attempted to procure either legal materials in Vietnamese or assistance in filing his federal habeas petition. See Holland v. Florida, 560 U.S. 631, 649, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (to be entitled to equitable tolling, a petitioner must demonstrate diligence); Mendoza, 449 F.3d at 1070 (discussing showing a non-English speaker must make to qualify for equitable tolling). Phan also contends that the district court erred by failing to hold an evidentia-ry hearing regarding his equitable tolling argument. Because Phan failed to make allegations regarding his diligence that would, if true, entitle him to equitable tolling, the district court did not abuse its discretion by dismissing the petition without holding an evidentiary hearing. See *842 Roy v. Lampert, 465 F.3d 964, 969 (9th Cir.2006). AFFIRMED. Footnotes [***] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.