MEMORANDUM ***
This case involves Derrick E. Steilmans petition for habeas relief under 28 U.S.C. § 2254. Steilman filed a § 2254 petition challenging the legality of his 110-year-sentence without the possibility of parole for a Montana homicide that he committed when he was 17 years old. The district court dismissed the petition as untimely. We agree with the district court that Steilmans petition was untimely because he failed to seek relief within one year of the Supreme Courts decision in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and because he is not entitled to equitable tolling.
1. Shortly before turning 18, Steilman committed a murder in Butte, Montana. He pleaded guilty in October 1999.
2. Steilman filed an earlier petition for a writ of habeas corpus in the Montana Supreme Court in May 2016, wherein he claimed that his sentence was unconstitutional under the Eighth Amendment because the sentencing judge did not sufficiently account for his youth per the new rule announced in Miller and made retroactive in Montgomery v. Louisiana, 577 U.S. 190, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). The Montana Supreme Court held that “[t]he combination of the good-time credit to which Steilman is eligible and the amount of his sentence that will be discharged while serving a sentence on a wholly unrelated crime” meant that Steilmans sentence was not a de facto life sentence. Steilman v. Michael, 389 Mont. 512, 407 P.3d 313, 320 (2017); see also Steilman v. Michael, No. CV 19-38-BU-BMM-KLD, 2019 WL 8017793, at *1 (D. Mont. Nov. 21, 2019), report and recommendation adopted in part, rejected in part, No. CV 19-38-BU-BMM, 2020 WL 359212 (D. Mont. Jan. 22, 2020) (noting that the Montana Supreme Court “observed that Steilmans Montana sentence ran concurrently to a Washington state sentence for a separate homicide, which would result in Steilman potentially serving [about] 31 years [for] the Montana homicide.”).
3. We need not decide whether the Montana Supreme Courts decision on the merits was contrary to the United States Supreme Courts decision in Miller because Steilmans federal habeas corpus petition was untimely. A state petition for habeas corpus that is based upon the recognition of a new right must be filed within one year of “the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2244(d)(1)(C). Steilman filed his petition within one year of Montgomery, but four years after the decision in Miller.
4. Unfortunately for Steilman, the decision that triggers the one-year statute of limitations is Miller, not Montgomery. Miller recognized a new right under the Eighth Amendment (the right to an individualized hearing for juvenile offenders before they can be sentenced to life without parole). 567 U.S. at 480, 132 S.Ct. 2455. The Supreme Courts recent decision in Jones v. Mississippi, ––– U.S. ––––, 141 S. Ct. 1307, 209 L.Ed.2d 390 (2021), reiterated that Montgomery simply held “that Miller applied retroactively to cases on collateral review.” Id. at 1314; see also id. at 1316 (“Montgomery did not purport to add to Miller’s requirements.”). Furthermore,
in making the [Miller] rule retroactive, the Montgomery Court ․ declined to impose new requirements not already imposed by Miller. As Montgomery itself explained, the Court granted certiorari in that case not to consider whether the rule announced in Miller should be expanded, but rather simply to decide whether Miller’s “holding is retroactive to juvenile offenders whose convictions and sentences were final when Miller was decided.”
Id. at 1317 (quoting Montgomery, 577 U.S. at 194, 136 S.Ct. 718). This leaves Steilmans timeliness argument based on Montgomery meritless because, as the Supreme Court decided in Dodd v. United States, 545 U.S. 353, 357, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005), the date that a right is made retroactive is irrelevant for statute-of-limitations purposes.
5. Moreover, Steilman is not entitled to equitable tolling. His argument turns on an unsubstantiated, vague allegation that “his attorney abandoned him and gave him improper advice as to how much time he had remaining on the statute of limitations.” He says that because he was “unable to present his claim to equitable tolling in the district court[,] ․ [t]his Court should ․ reverse and remand this case and give Steilman a chance to establish that he is entitled to equitable tolling.”
6. But equitable tolling of the one-year limitations period created by 28 U.S.C. § 2244(d)(1)(C) is rarely granted. Miranda v. Castro, 292 F.3d 1063, 1066–67 (9th Cir. 2002). To benefit from equitable tolling, a petitioner must show that he has “pursu[ed] his rights diligently” and was hindered by an “extraordinary circumstance.” Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005). Before the district court, Steilman proffered several reasons for equitable tolling, including attorney malpractice, legal ignorance, and insufficient access to Montana legal materials while incarcerated in the state of Washington. Steilman, 2019 WL 8017793, at *3–4.
7. Although Steilman put forth several reasons before the district court in attempting to establish an “extraordinary circumstance,” he proffers on appeal only that his attorney misadvised and “abandoned him.” But Steilman provides no evidence to substantiate his argument, and this single reason does not constitute an “extraordinary circumstance.” See Frye v. Hickman, 273 F.3d 1144, 1145–46 (9th Cir. 2001) (holding that counsels general negligence did not warrant equitable tolling); see also Ford v. Pliler, 590 F.3d 782, 786 (9th Cir. 2009) (noting that the petitioner had given the lower court no evidence that an “attorneys conduct had made it impossible ․ to file a timely federal habeas petition”). In any event, the attorney misconduct that Steilman alleges apparently occurred after the statute of limitations had already lapsed, so it could not change the result in this case. See Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
AFFIRMED.