Argued and Submitted, Pasadena, California April 7,
Appeal from the United States District Court for the Central District of California. D.C. No. 5:10-cv-00965-JVS-JCG. James V. Selna, District Judge, Presiding.
Rose D. Angulo (argued) and Sean Kennedy, Federal Public Defenders, Santa Ana, California, for Petitioner-Appellant.
Matthew Mulford (argued), Julie Garland, and Kevin Vienna, California Department of Justice, San Diego, California, for Respondent-Appellee.
Before: Myron H. Bright,[*]
Jerome Farris, and Andrew D. Hurwitz, Circuit Judges.
FARRIS, Circuit Judge:
On July 18, 2006, Yow Ming Yeh pled guilty to one count of battery in California state court for biting a correctional officer while incarcerated at the California Rehabilitation Center. His state court judgment became final on September 18, 2006, when the time for appealing his conviction expired. He filed no direct appeal. In the year that followed, Yeh continued to request assistance for an appeal. On March 28, 2007, Yeh filed an Inmate Appeal Form requesting assistance from the public defender's office. He also requested a translator. On September 12, 2007, Yeh again requested to meet with his " appeals coordinator." On September 24, 2007, Yeh filed another Inmate Appeal Form. Over a year later, on October 17, 2008, Yeh filed a petition for a writ of habeas corpus in the California Court of Appeals, which was denied on November 19, 2008. Yeh subsequently filed similar petitions in the California Supreme Court and the Riverside County Superior Court, which were also denied.
On June 8, 2010, more than two and a half years after the limitations period had run, Yeh filed the present Petition for Writ of Habeas Corpus in federal court. The district court dismissed the petition as untimely because of the one-year statute of limitations. Yeh appeals the district court's judgment, arguing that he is entitled to equitable tolling based on (1) his limited English proficiency and (2) his mental impairment. Yeh is a non-English speaker with very limited English language abilities, who has a history of mental illness, although he does not allege that he is mentally incompetent.
The dismissal of a habeas petition as barred by the statute of limitations is reviewed de novo, as is the issue of whether the petitioner is entitled to equitable tolling (so long as there are no facts in dispute). Bills v. Clark, 628 F.3d 1092, 1096 (9th Cir. 2010). We have jurisdiction under 28 U.S.C. § 2253, and we AFFIRM.
Equitable tolling is available to a habeas petitioner if (1) the petitioner pursued his rights diligently, and (2) an extraordinary circumstance prevented timely filing. Holland v. Florida, 560 U.S. 631, 645, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). This is a very high bar, and is reserved for rare cases. See, e.g., Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) (" extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time" ) (emphasis in original); Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (requirements are " very high, lest the exceptions swallow the ...