The opinion of the court was delivered by: Dolly M. Gee United States District Judge
ORDER ADOPTING FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
On December 28, 2010, the United States Magistrate Judge issued a Report and Recommendation ("R&R"), recommending that petitioner's Petition for Writ of Habeas Corpus be denied as time barred and the action dismissed with prejudice. Thereafter, on January 18, 2011, petitioner filed his Objection to the R&R ("Objection").
In his Objection, petitioner cites Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969), in support of his claim for equitable tolling. (Objection at 2). The Supreme Court in Johnson held that a state prison regulation barring inmates from providing other inmates with assistance in the preparation of habeas petitions was in conflict with the federal right of habeas corpus, and thus invalid. Johnson, 393 U.S. at 487-90. Here, petitioner has made no showing that he was barred by prison officials from having access to assistance from other inmates. Nor has petitioner demonstrated that any other prison regulations impeded his ability to prepare and file his Petition. Thus, petitioner is not entitled to relief under Johnson.
The Court has also considered petitioner's claims of equitable tolling. The Ninth Circuit has recently explained that to warrant equitable tolling based on mental illness, a petitioner must show:
(1) his mental impairment was so severe that he either was "unable rationally or factually to personally understand the need to timely file," or that his mental state "rendered him unable personally to prepare a habeas petition and effectuate its filing"; and (2) he was diligent in pursuing his claims, "but that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including reasonably available access to assistance." Bills v. Clark, __ F.3d __, 2010 WL 4968692, at *7 (Dec. 8, 2010). Petitioner has not satisfied this standard. As discussed in the R&R, he has made no showing that his mental impairments of depression, anxiety, and a mood disorder were so severe that they impeded his ability to understand the need to timely file, or rendered him unable to prepare and file his claims. In fact, petitioner's own exhibits reflect that one of the two mental health experts who examined him found that he had no mental disorder (see Petition, Exh. 3A3), and a prison record from June 2008 indicates that petitioner's mental health was "stable" at that time. (See Petition, Exh. 3A8). Because petitioner has not demonstrated that he had a severe mental impairment, he is not entitled to an evidentiary hearing on the equitable tolling issue. See Bills, 2010 WL 4968692, at *8 (non-frivolous showing of severe mental impairment may entitle petitioner to an evidentiary hearing).
The Court further concludes that petitioner's claim for equitable tolling based on his placement in the prison's administrative segregation unit lacks merit for the reasons explained in the R&R.
Based on the foregoing and pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, all of the records herein, the Report and Recommendation of the United States Magistrate Judge, and petitioner's Objection to the Report and Recommendation. The Court has made a de novo determination of the portions of the Report and Recommendation to which objections were directed. The Court concurs with and adopts the findings and conclusions of the Magistrate Judge. Accordingly, IT IS ORDERED THAT:
1. Respondent's Motion to Dismiss is granted.
2. Judgment shall be entered consistent with this order.
3. The clerk shall serve this order and the judgment on all counsel or ...