FILED
NOT FOR PUBLICATION JUL 20 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE LUIS BARRERA, No. 08-17207
Petitioner - Appellant, D.C. No. 2:07-cv-01929-FCD-
GGH
v.
JAMES A. YATES, Warden, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior District Judge, Presiding
Submitted July 16, 2010 **
San Francisco, California
Before: HUG and M. SMITH, Circuit Judges, and TODD, Senior District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James Dale Todd, Senior United States District Judge
for the Western District of Tennessee, sitting by designation.
Petitioner-Appellant Jose Luis Barrera appeals the district court’s dismissal
of his petition for a writ of habeas corpus as untimely. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm. As the facts and procedural history
are familiar to the parties, we recite them here only as necessary to explain our
decision.
Barrera admits that he filed his petition more than a decade after the
expiration of the one-year statute of limitations established by the Anti-Terrorism
and Effective Death Penalty Act, 28 U.S.C. § 2244(d)(1), but claims entitlement to
equitable tolling because of a variety of alleged extraordinary circumstances. See
Holland v. Florida, – S. Ct. –, 2010 WL 2346549, at *12 (June 14, 2010). The
district court correctly determined that Barrera did not meet his burden to show the
exceptional remedy of equitable tolling is justified in his case.
As the evidence attached to Barrera’s habeas petition shows, Barrera was
able to prepare and file numerous substantive legal documents and letters between
2001 and 2005. Accordingly, Barrera cannot show that any of his asserted bases
for equitable tolling in fact caused him to be unable to file his petition. See Laws v.
Lamarque, 351 F.3d 919, 922–23 (9th Cir. 2003) (explaining that equitable tolling
is justified only when extraordinary circumstances cause it to be impossible for the
prisoner to file a petition). Indeed, even if the court were to assume Barrera faced
extraordinary circumstances from the time of his conviction through the date the
AEPDA statute expired in 1997, and for an indefinite time thereafter, any disabling
conditions clearly lifted between 2001 and 2005. The statute would therefore have
accrued and expired years before he filed the present petition.
Further, Barrera’s specific argument that he was unable to file his federal
petition from 2001 to 2005 because he did not have his transcripts fails as well.
Although Barrera’s transcripts were apparently taken from him and destroyed some
time before 2001, he apparently had them for some period beforehand. The
AEDPA statute of limitations expired in Barrera’s case back in 1997. Because
Barrera failed to identify any facts about when and how his transcripts were lost,
he did not show that the loss was an extraordinary circumstance beyond his
control, and he did not show that there was any temporal relationship between his
missing the AEDPA deadline and the loss of his transcripts.
Barrera also argues that before dismissing his petition, he should at least
have been given an evidentiary hearing to prove he was mentally incompetent to
file his habeas petition earlier. However, as explained above, because Barrera’s
own evidence defies any claim that it was impossible for him to prepare and make
legal filings, he would not be entitled to any relief even if he could prove he
suffered from mental impairments. Further, his assertions of mental incompetence
lacked specificity. Thus, the district court did not abuse its discretion in denying
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him an evidentiary hearing. See Campbell v. Wood, 18 F.3d 662, 679 (9th Cir.
1994).
The district court’s dismissal of Barrera’s petition is AFFIRMED.
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