The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
ORDER AND FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding pro se on with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action proceeds on the original petition filed on January 21, 2010. (Dkt. No. 1.) On June 29, 2010, respondent filed a motion to dismiss the petition on the ground that it was untimely. (Dkt. No. 12.) On January 12, 2011, the magistrate judge previously assigned to this case issued findings and a recommendation that the motion to dismiss be granted. (Dkt. No. 25.) Petitioner filed objections to the findings and recommendations. (Dkt. No. 33.) On April 4, 2011, the district judge declined to adopt the magistrate's findings and recommendations, reasoning that the "substantial new material" petitioner submitted in his objections must be considered in ruling on the motion to dismiss. (Dkt. No. 34.) Thus, respondent's motion to dismiss is still pending before this court. For the reasons discussed below, the undersigned will recommend that the motion to dismiss be granted.
In addition, on May 12, 2011 petitioner filed a motion to file an amended petition for writ of habeas corpus, a proposed amended petition, and a request that this action be stayed so petitioner can exhaust state remedies with respect to the new claim presented in the amended petition. The instant order addresses that motion as well.
As noted above, on January 12, 2011, the previously assigned magistrate judge issued findings and recommendations concluding that the petition should be dismissed for untimeliness. The magistrate judge first determined that the petition was statutorily time-barred, as it was not filed within the one-year period for filing a federal habeas petition under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). (Dkt. No. 25 at 2-4.) Second, the magistrate judge determined that petitioner was not entitled to equitable tolling of the limitations period due to his alleged difficulties with an inmate writ-writer and/or mental illness or mental incapacity. (Id. at 4-11.)
On April 4, 2011, the district judge issued an order stating in relevant part: Petitioner filed objections and recommendations, supported by additional medical records from the relevant period and declarations suggesting he did not have access to his legal materials during a portion of the limitations period and that he had not prepared the pleadings filed in state and federal court during the limitations period.
In light of this substantial new material, this court . . . refers the case back to the Magistrate Judge for consideration of the impact of this new material on the findings and recommendations.
(Dkt. No. 34 at 1-2.) As the undersigned reads this order, only equitable tolling remains at issue, as none of the described material impacts the analysis of whether the petition is statutorily time-barred. (See Dkt. No. 25 at 2-4.) Thus, the question before this court is whether petitioner's mental health issues, lack of access to legal materials, and/or difficulties with the legal process served to equitably toll the limitations period so as to render the petition timely.
A. Mental Illness or Incapacity
The limitations period is subject to equitable tolling if the petitioner demonstrates:
"(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace, supra, 544 U.S. at 418; see also Irwin v. Department of Veteran Affairs, 498 U.S. 89, 96 (1990); Calderon v. U.S. Dist. Ct. (Kelly), 163 F.3d 530, 541 (9th Cir.1998), citing Alvarez--Machain v. United States, 107 F.3d 696, 701 (9th Cir.1996), cert denied, 522 U.S. 814 (1997). Petitioner bears the burden of alleging facts that would give rise to tolling. Pace, 544 U.S. at 418; Smith v. Duncan, 297 F.3d 809 (9th Cir. 2002); Hinton v. Pac. Enters., 5 F.3d 391, 395 (9th Cir.1993).
Mental illness can, in certain circumstances, rise to the level of an "extraordinary circumstance" beyond a petitioner's control that warrants equitable tolling. Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003). However, the circumstances must be exceptional. See Rhodes v. Senkowski, 82 F. Supp. 2d 160, 168--70, 173 (S.D.N.Y. 2000); also U.S. v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004) ("As a general matter, the federal courts will apply equitable tolling because of petitioner's mental condition only in cases of profound mental incapacity"). In addition, petitioner must show that the alleged mental incompetence "in fact" caused him to fail to file a timely habeas petition. Laws, 351 F.3d at 923.
Recently, in Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010), the Ninth Circuit had occasion to consider when a petitioner's mental condition may constitute an extraordinary circumstance justifying equitable tolling of the untimely filing of a habeas petition. In Bills, the Ninth Circuit set forth a two-part test to ...