United States District Court, E.D. California
KENDALL J. NEWMAN JUDGE
is a state prisoner, proceeding pro se, with an application
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. The matter was referred to the undersigned pursuant to
28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
10, 2016, the magistrate judge filed findings and
recommendations in which the undersigned recommended that
respondent's motion to dismiss be granted because the
federal statute of limitations period expired on February 6,
2014, and petitioner did not file the instant petition until
June 28, 2015. (ECF No. 22.) On May 27, 2016, petitioner
filed objections to the findings and recommendations. In
addition to raising legal arguments concerning procedural
default, petitioner claims, for the first time, that he
suffers from a serious mental illness that warrants equitable
tolling, and that the failure of prison officials to provide
mentally ill inmates with adequate legal assistance is
tantamount to extraordinary circumstances that also warrants
equitable tolling. Respondent did not file a reply.
relevant time frame for the purpose of equitable tolling is
from February 5, 2013, the date petitioner's conviction
became final until June 28, 2015, the date he signed his
federal habeas petition, or a little over two years.
tolling is available to toll the one-year statute of
limitations available to 28 U.S.C. § 2254 habeas corpus
cases. Holland v. Florida, 130 S.Ct. 2549, 2560
(2010). A litigant seeking equitable tolling must establish:
(1) that he has been pursuing his rights diligently; and (2)
that some extraordinary circumstance stood in his way.
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). The
Ninth Circuit has explained:
To apply the doctrine in "extraordinary
circumstances" necessarily suggests the doctrine's
rarity, and the requirement that extraordinary circumstances
"stood in his way" suggests that an external force
must cause the untimeliness, rather than, as we have said,
merely "oversight, miscalculation or negligence on [the
petitioner's] part, all of which would preclude the
application of equitable tolling.
Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th
Cir.) (internal citation omitted), cert. denied, 130
S.Ct. 244 (2009); see also Stillman v. LaMarque, 319
F.3d 1199, 1203 (9th Cir. 2003) (petitioner must show that
the external force caused the untimeliness). It is
petitioner's burden to demonstrate that he is entitled to
equitable tolling. Espinoza-Matthews v. People of the
State of California, 432 F.3d 1021, 1026 (9th Cir.
Ninth Circuit has articulated a specific, two-part test for
an equitable tolling claim based on a petitioner's mental
(1) First, a petitioner must show his mental
impairment was an "extraordinary circumstance"
beyond his control by demonstrating the impairment was so
severe that either
(a) petitioner was unable to rationally or factually to
personally understand the need to timely file, or
(b) petitioner's mental state rendered him unable
personally to prepare a habeas petition and effectuate its
(2) Second, the petitioner must show diligence in
pursuing the claims to the extent he could understand them,
but that the mental impairment made it impossible to meet the
filing deadline under the totality of the ...