Wayne Chick v. Frank Chavez , 518 F. App'x 567 ( 2013 )

FILED
NOT FOR PUBLICATION MAY 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WAYNE E. CHICK, No. 11-55612
Petitioner - Appellant, D.C. No. 2:10-cv-06136-DMG-
PLA
v.
FRANK CHAVEZ, Warden, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted May 6, 2013
Pasadena, California
Before: PAEZ and IKUTA, Circuit Judges, and SEEBORG, District Judge.**
Petitioner Wayne E. Chick appeals the district court’s decision dismissing
his habeas petition as untimely. Chick’s petition was filed after the one-year
limitations period, 28 U.S.C. § 2244(d), and the district court rejected Chick’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard Seeborg, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
argument that he was entitled to equitable tolling. We have jurisdiction pursuant to
28 U.S.C. § 1291. We affirm in part, reverse in part and remand for further
development of the record as to Chick’s mental competency and, if necessary, an
evidentiary hearing.
“‘[A] petitioner is entitled to equitable tolling only if he shows (1) that he
has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.’” Ford v. Gonzalez,
683 F.3d 1230, 1237 (9th Cir.) cert. denied, 133 S.Ct. 769 (2012) (quoting
Holland v. Florida, 130 S.Ct. 2549, 2562 (2010) (internal quotation marks
omitted)). We have held “that where a habeas petitioner can show ‘mental
incompetence in fact caused him to fail to meet the AEDPA filing deadline, his
delay was caused by an “extraordinary circumstance . . . ,” and the deadline should
be equitably tolled.’” Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (quoting
Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003) (emphasis in Bills)).
Chick conceded at oral argument that he has not set forth sufficient facts to
meet his burden under Bills and is thus not entitled to equitable tolling based on the
record as it stands. Rather, Chick argues that his allegations—that he suffers from
a mental impairment and that he was deprived of legal materials while in
administrative segregation—entitle him to further development of the record.
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1. A petitioner who alleges that mental illness prevented him from timely
filing may be entitled to further factual development even if he has not met his
burden to show that he is entitled to equitable tolling. Instead, he must make only
“a good faith allegation that would, if true, entitle him to equitable tolling.” Laws,
351 F.3d at 921.
Here, Chick alleged in his habeas petition that his “late filing of Habeas is
due to mental illness.” Additionally, at several places in his verified petition and in
subsequent filings in the district court, Chick’s jailhouse lawyer indicated that
Chick’s mental impairment rendered him incapable of timely filing a habeas
petition. Construing Chick’s petition liberally, we hold that Chick has made “a
good faith allegation that would, if true, entitle him to equitable tolling.” Laws,
351 F.3d at 921 (noting that “[w]e must construe pro se habeas filings liberally,
Maleng v. Cook, 490 U.S. 488, 493 (1989), and may treat the allegations of a
verified complaint or petition as an affidavit,” id. at 924).
Respondent has not offered sufficient countervailing evidence to
demonstrate that Chick was mentally competent during the tolling period. See Id.
at 924 (noting that “[o]f course, a petitioner’s statement, even if sworn, need not
convince a court that equitable tolling is justified should countervailing evidence
be introduced”). The record reveals no medical evidence from the time period for
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which Chick seeks tolling, and the handful of documents in the record reveal only
that Chick had some degree of mental impairment but do not conclusively indicate
its severity. Thus, this case is distinguishable from Roberts v. Marshall, 627 F.3d
768 (9th Cir. 2010). In light of these circumstances, we conclude that the district
court erred in dismissing Chick’s petition without further development of the
record with respect to Chick’s alleged mental impairment.1
2. Chick is not entitled to further factual development with respect to the
deprivation of his legal materials. Chick alleged that he was deprived of his legal
materials while housed in administrative segregation. Based on Chick’s exhibits,
the district court concluded that Chick was transferred from administrative
segregation to a new facility, “at the latest on October 22, 2008.” This factual
finding is not clearly erroneous. See Bills, 628 F.3d at 1096. It was based on the
prison Classification Service Representative’s notation that Chick’s transfer
approval expired on that date. Nor was the district court’s subsequent conclusion
that “even if petitioner had been separated from his legal materials for a period of
time when he was in [administrative segregation], after the transfer he still had
1
We note that the district court may expand the record pursuant to Rule 7 of
the Rules Governing Section 2254 Cases in the United States District Courts. If
after reviewing any documents submitted pursuant to Rule 7, the court determines
that an evidentiary hearing is necessary, it may hold one as allowed by Rule 8.
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almost the entire one-year period [from October 8, 2008 to October 7, 2009] to
pursue federal habeas relief.” Thus, since Chick would be entitled to a maximum
of fourteen days of equitable tolling based on the deprivation of his legal materials
and his petition was filed ten months beyond the statutory deadline, Chick’s
allegations regarding his legal papers, if true, would not entitle him to relief.
Therefore, the district court did not abuse its discretion in not further developing
the record as to this issue. See Laws, 351 F.3d at 921. We therefore affirm the
district court’s determination that Chick’s placement in administrative segregation
does not entitle him to equitable tolling.
The parties shall bear their own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
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