
    Tjiak Wie WONG, Petitioner-Appellant, v. Anthony LAMARQUE, Respondent-Appellee.
    No. 02-17019.
    D.C. No. CV-01-01768-MCE.
    United States Court of Appeals, Ninth Circuit.
    Submitted Sept. 8, 2003.
    
    Decided Sept. 15, 2003.
    Tjiak Wie Wong, pro se, Soledad, CA, Allison Claire, FPDCA-federal Public Defender’s Office, Sacramento, CA, for Petitioner-Appellant.
    Arnold O. Overoye, Esq., Stephen Herndon, Attorney General’s Office, Sacramento, CA, for Respondent-Appellee.
    Before PREGERSON, THOMAS, and PAEZ, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Tjiak Wie Wong, a California state prisoner, appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and affirm.

Wong contends that he is entitled to equitable tolling because appellate counsel misled him into thinking that she was still representing him on direct review. Wong’s contention lacks merit because his counsel’s failures do not qualify as extraordinary circumstances warranting equitable tolling. See Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001) (denying equitable tolling based on counsel’s negligence), cert. denied, 535 U.S. 1055, 122 S.Ct. 1913, 152 L.Ed.2d 823 (2002). Further, Wong cannot show the requisite diligence between the five years after his conviction became final and his first state habeas petition to justify equitable tolling. See Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999).

AFFIRMED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     