FILED
NOT FOR PUBLICATION MAY 06 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FREDERICK GATLIN, No. 09-15494
Petitioner - Appellant, DC No. CV 07-3696 CW
v.
MEMORANDUM *
JAMES E. TILTON,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Argued and Submitted April 15, 2010
San Francisco, California
Before: KLEINFELD, TASHIMA, and THOMAS, Circuit Judges.
Petitioner Frederick Gatlin appeals the district court’s order dismissing his
petition for writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. §§
1291 and 2253. We vacate the district court’s order and remand for further
proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
Gatlin contends that the district court erred when it failed to grant him an
evidentiary hearing on the issue of equitable tolling. We review the district court’s
dismissal of Gatlin’s habeas petition on untimeliness grounds de novo and its
denial of Gatlin’s request for an evidentiary hearing for abuse of discretion. See
Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003).
To be entitled to an evidentiary hearing, Gatlin was required to make an
initial showing that he suffered from a mental illness severe enough to warrant
equitable tolling. See id. at 922-24. The medical records Gatlin presented to the
district court made a colorable showing that he suffered from a serious mental
illness for at least a substantial portion of the five-year period at issue. At other
times, Gatlin’s mental health appears to have been successfully managed by his
medications. Because Gatlin proceeded before the district court pro se, however,
the record contains only a limited and sporadic collection of his medical records. It
is therefore difficult to gain a complete understanding of Gatlin’s mental health
over the course of his incarceration.
Out of an abundance of caution, we vacate the district court’s order
dismissing Gatlin’s habeas petition and remand for further proceedings.
Respondent represented at oral argument that it was in possession of the entirety of
Gatlin’s prison medical records. Neither we nor the district court have had the
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opportunity to read these records in order to decide whether he is entitled to an
evidentiary hearing. On remand, the district court should examine those records to
determine the extent of Gatlin’s mental incapacity during the relevant five-year
period. If those medical records suggest that Gatlin’s mental illness affected his
ability to file a habeas petition during the entire relevant period of his
incarceration, an evidentiary hearing will be warranted.
VACATED and REMANDED.
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