United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL W. MOSMAN, UNITED SPACES DISTRICT JUDGE
brings this habeas corpus case pursuant to- 28 U.S.C. §
2254 challenging the legality of his state-court convictions
for Aggravated Murder and Robbery in the First Degree.
Petitioner concedes that he filed his Petition well outside
the applicable one-year statute of limitations, but argues that
extraordinary circumstances warrant equitable tolling.
tolling is available to toll the one-year statute of
limitations applicable to 28 U.S.C. § 2254 habeas corpus
cases. Holland v. Florida, 560 U.S. 631, 645 (2010).
A litigant seeking to invoke equitable tolling must
establish: (1) that he has been pursuing his rights
diligently; and (2) that some extraordinary circumstance
prevented him from timely filing his petition. Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005). Petitioner bears
the burden of showing that this "extraordinary
exclusion" should apply to him. Miranda v.
Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) .
case, Petitioner asserts that he was unable to timely file
this case because: (1) he has an IQ of 68, putting him in the
mildly mentally retarded category which make it difficult for
him to understand how to file a federal habeas corpus case;
and (2) he weighs nearly 400 pounds and, thus, suffers from
limited -mobility. While physical and mental limitations can
justify equitable tolling, they must be so severe that they
render it impossible for a petitioner to timely file the
case. Bills v. Clark, 628 F.3d 1092, 1100 (9th Cir.
2010); Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir.
2003). Petitioner makes no such showing here. Indeed, despite
the limitations Petitioner mentions, he was not only able to
file two state post-conviction cases pro se, but he
was also able to file this habeas corpus action pro
se only 20 days after the conclusion of his second
also argues that he received incomplete advice from an
attorney as well as an inmate legal assistant. Specifically,
he declares that his post-conviction attorney failed to
advise him that the habeas corpus statute of limitations
would begin to run upon the dismissal of his first state
post-conviction action,  and that an inmate legal assistant
advised him to file a second post-conviction action which was
ultimately deemed not to be a proper filing and, therefore,
did not toll the statute of limitations under 28 U.S.C.
§ 2244(d)(2). Neither of these arguments compel
equitable tolling where even attorney negligence does not
justify equitable tolling. Frye v. Hickman, 273 F.3d
1144, 1146 (9th Cir. 2001).
contends that while each of the barriers described above may
not individually support equitable tolling, they do so
collectively. Petitioner's argument is unpersuasive given
the totality of the record. Equitable tolling is therefore
not appropriate, and the Petition for Writ of Habeas Corpus
reasons identified above, the Petition for Writ of Habeas
Corpus (#1) is dismissed on the basis that it is untimely.
The Court declines to issue a Certificate of Appealability on
the basis that petitioner has not made a substantial showing
of the denial of a constitutional right pursuant to 28 U.S.C.
 28 U.S.C. § 2244 allows litigants
one year from the time in which their convictions become
final in which to file for federal habeas corpus relief.
Here, the parties agree that Petitioner filed his Petition
for Writ of Habeas Corpus 1, 654 days after his convictions
 At the time Petitioner filed his first
post-conviction action, only 115 untolled days had elapsed
from the federal limitation period. Because that
post-conviction filing was proper, it tolled the one-year
habeas statute of limitations during the pendency of the
action and the subsequent appeal. See 28 U.S.C. §
2244(d) (2) .
 Moreover, any lack of legal
sophistication on Petitioner's part also does not support
a request for equitable tolling. Rasberry v. Garcia,448 F.3d 1150, ...