Hugh Garcia v. James Yates , 422 F. App'x 584 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HUGH GARCIA, No. 08-56996
Petitioner - Appellant, D.C. No. 3:07-cv-00048-DMS
v.
MEMORANDUM *
JAMES YATES, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted March 8, 2011 **
Before: FARRIS, LEAVY, and BYBEE, Circuit Judges.
California state prisoner Hugh Garcia appeals from the district court’s order
dismissing his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction under
28 U.S.C. § 2253, and we affirm in part, vacate in part, and remand.
*
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).
Garcia contends that he is entitled to equitable tolling due to the absence of
Spanish language legal materials in the prison law library. This claim fails
because, although Garcia has submitted some evidence that he attempted to
procure both legal assistance and legal materials in Spanish, he has not shown that,
throughout the period for which tolling is sought, he was diligently pursuing
“either legal materials in his own language or translation assistance from an
inmate, library personnel, or other source.” Mendoza v. Carey, 449 F.3d 1065,
1070 (9th Cir. 2006).
Garcia also claims that he is entitled to equitable tolling due to his mental
incompetence. Garcia has presented considerable evidence that he suffers from a
delusional disorder. Moreover, the crux of the claims in his petition is that his
constitutional rights were violated when he was permitted to represent himself at
trial notwithstanding this disorder. For these reasons, remand is warranted for an
evidentiary hearing to determine whether Garcia’s delusional disorder is an
extraordinary circumstance that prevented a timely federal filing. See Holland v.
Florida, — U.S. —, 130 S. Ct. 2549, 2560-62 (2010); Laws v. Lamarque, 351 F.3d
919 (9th Cir. 2003) (remand warranted for good-faith allegation that would, if true,
support equitable tolling).
We construe Garcia’s remaining arguments as a motion to expand the
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certificate of appealability. So construed, the motion is denied. See 9th Cir. R.
22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per
curiam).
AFFIRMED in part, VACATED and REMANDED in part.
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