Gregory Dowdy v. Ben Curry , 617 F. App'x 772 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 22 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
GREGORY L. DOWDY, No. 10-17445
Petitioner - Appellant, D.C. No. 3:09-cv-03144-WHA
v.
MEMORANDUM*
BEN CURRY, Warden,
Respondent - Appellee.
GREGORY L. DOWDY, No. 14-15604
Petitioner - Appellant, D.C. No. 3:09-cv-03144-WHA
v.
BEN CURRY, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted September 15, 2015**
San Francisco, California
Before: CALLAHAN, CHRISTEN, and FRIEDLAND, Circuit Judges.
Gregory Dowdy petitioned the district court for a writ of habeas corpus. The
district court dismissed his petition as untimely and denied a later motion to set
aside this denial. Dowdy appeals, arguing that he was entitled to equitable tolling
because his mental illness prevented him from filing a timely petition. We affirm.1
Dowdy has not satisfied the test for equitable tolling under the Antiterrorism
and Effective Death Penalty Act (“AEDPA”) because he has not shown that (1) his
mental impairment was an “extraordinary circumstance” that rendered him unable
to either “personally understand the need to timely file” or “personally to prepare a
habeas petition and effectuate its filing” and (2) despite his “diligence in pursuing
the claims to the extent he could understand them, . . . the mental impairment made
it impossible to meet the filing deadline.” Bills v. Clark, 628 F.3d 1092,
1099–1100 (9th Cir. 2010) (citing Holland v. Florida, 560 U.S. 631, 649 (2010)).
As the district court found and the record supports, medication adequately
controlled Dowdy’s mental impairment at least from 2002 to 2008. During this
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1
The parties are familiar with the facts, so we will not recount them
here.
time, Dowdy’s Global Assessment Functioning (“GAF”) indicated only moderate
symptoms of impairment, and Dowdy filed two state habeas petitions and another
federal habeas petition.
AFFIRMED