Mar-Nique Simon v. Domingo Uribe , 528 F. App'x 764 ( 2013 )

FILED
NOT FOR PUBLICATION JUN 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MAR-NIQUE SIMON, No. 11-15909
Petitioner - Appellant, D.C. No. 3:09-cv-05859-TEH
v.
MEMORANDUM *
DOMINGO URIBE, JR., Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, Senior District Judge, Presiding
Argued and Submitted June 10, 2013
San Francisco, California
Before: TASHIMA and BYBEE, Circuit Judges, and STAFFORD, Senior District
Judge.**
Petitioner Mar-Nique Simon appeals the district court’s dismissal of his
habeas corpus petition as untimely. Simon argues that the district court erred in
dismissing his petition because he was entitled to equitable tolling based on an
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable William H. Stafford, Jr., Senior District Judge for the
U.S. District Court for the Northern District of Florida, sitting by designation.
alleged mental impairment. We have jurisdiction under 28 U.S.C. §§ 1291 and
2253. Because we conclude that the record is not sufficiently developed to make a
determination as to whether Simon is entitled to equitable tolling, we reverse and
remand to the district court.
We have previously held that a petitioner may be entitled to equitable tolling
based on a mental impairment where the mental impairment made it impossible for
the petitioner to timely file a habeas petition on his own and the petitioner was
otherwise diligent in attempting to file a habeas petition. See Bills v. Clark, 628
F.3d 1092, 1096–101 (9th Cir. 2010). Here, however, the district court concluded,
without holding an evidentiary hearing, that Simon failed to show that he suffered
from a mental impairment during the tolling period. Although this finding of fact
was not clearly erroneous based on the evidence that Simon presented, id. at 1096,
Simon was entitled to an evidentiary hearing because he made a “non-frivolous
showing that he had a severe mental impairment during the filing period,” id. at
1100. Since the Young report indicated the existence of “circumstances consistent
with” incompetency, the district court “should . . . have allowed discovery or
ordered expansion of the factual record.” Laws v. Lamarque, 351 F.3d 919, 924
(9th Cir. 2003). As we said in Laws, “more factual development is required before
we can say that [Simon] was or was not precluded from filing his petition by
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reason of mental impairment several years ago.” Id.; cf. Roberts v. Marshall, 627
F.3d 768, 773 (9th Cir. 2010).
Accordingly, we reverse the judgment and remand to the district court for
further factual development. On remand, the district court shall order any
discovery, expansion of the record, or evidentiary hearing necessary to determine
whether Simon is entitled to equitable tolling based on a mental impairment. See
Laws, 351 F.3d at 924–25.
REVERSED and REMANDED.
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