Bruno Campostrini v. James Tilton , 407 F. App'x 167 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 27 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BRUNO CAMPOSTRINI, No. 09-17567
Petitioner - Appellant, D.C. No. 2:07-cv-02132-JAM-
GGH
v.
JAMES E. TILTON; ATTORNEY MEMORANDUM *
GENERAL OF THE STATE OF
CALIFORNIA; MICHAEL MARTEL,
Acting Warden,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted December 9, 2010 **
San Francisco, California
Before: SCHROEDER, THOMAS, and GOULD, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Petitioner pled no-contest to committing a forcible lewd act upon a child.
Petitioner’s conviction became final for purposes of AEDPA’s one-year statute of
limitations on July 19, 2003. See 28 U.S.C. § 2244(d)(1). Petitioner did not file
the first of three state-court habeas petitions until September 2006. Petitioner filed
a habeas petition in district court on October 10, 2007. It was dismissed as
untimely.
Petitioner claims the district court was required to hold an evidentiary
hearing on his claim that mental incompetence prevented his timely filing.
Equitable tolling of the one-year limitations period is available only when
“‘extraordinary circumstances beyond a prisoner’s control make it impossible to
file a petition on time’ and ‘the extraordinary circumstances were the cause of his
untimeliness.’” Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003) (quoting
Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)). The district court held that
Petitioner failed to meet his burden to show that extraordinary circumstances
beyond his control existed. It also held that Petitioner was not entitled to an
evidentiary hearing on his claim to equitable tolling because he failed to show that
further factual development, beyond the comprehensive mental health record
produced, was necessary.
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Petitioner contends that he is entitled to an evidentiary hearing because
expert testimony is required to determine the effect of his mental condition. But he
did not proffer any such expert evidence and the district court reviewed all of
Petitioner’s health records. See Roberts v. Marshall, No. 08-55901, 2010 WL
5064378, *3 (9th Cir. Dec. 13, 2010) (“Where the record is amply developed, and
where it indicates that the petitioner’s mental incompetence was not so severe as to
cause the untimely filing of his habeas petition, a district court is not obligated to
hold evidentiary hearings to further develop the factual record, notwithstanding a
petitioner’s allegations of mental incompetence.” (citation omitted)). Petitioner
failed to meet his burden of showing that his mental illness prevented him from
timely filing a habeas petition.
AFFIRMED.
3