FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIMMY LEE BILLS, No. 08-17517
Petitioner-Appellant, D.C. No.
v. 2:06-cv-02223-
KEN CLARK, Warden, MCE-GGH
Respondent-Appellee.
OPINION
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Argued and Submitted
June 17, 2010—San Francisco, California
Filed December 8, 2010
Before: Michael Daly Hawkins and Raymond C. Fisher, and
Timothy M. Tymkovich, Circuit Judges.*
Opinion by Judge Tymkovich
*The Honorable Timothy M. Tymkovich, United States Circuit Judge
for the Tenth Circuit, sitting by designation.
19667
19670 BILLS v. CLARK
COUNSEL
Marylou Hillberg, Sebastopol, California, for the petitioner-
appellant.
Robert Gezi, Deputy Attorney General, Edmund G. Brown,
Jr., Attorney General of California, Michael P. Farrell, Senior
BILLS v. CLARK 19671
Assistant Attorney General, and Julie A. Hokans, Supervising
Deputy Attorney General, Office of the California Attorney
General, Sacramento, California, for the respondent-appellee.
OPINION
TYMKOVICH, Circuit Judge:
This case requires us to consider when a petitioner’s mental
condition may constitute an extraordinary circumstance justi-
fying equitable tolling of the untimely filing of a habeas peti-
tion. We conclude equitable tolling is permissible when a
petitioner can show a mental impairment so severe that the
petitioner was unable personally either to understand the need
to timely file or prepare a habeas petition, and that impair-
ment made it impossible under the totality of the circum-
stances to meet the filing deadline despite petitioner’s
diligence.
The petitioner in this case is Jimmy Lee Bills, a California
state prisoner. Bills filed his habeas petition outside of the
one-year limitations period contained in the Antiterrorism and
Effective Death Penalty Act of 1996 § 101, 28 U.S.C. § 4332
(2006) (AEDPA), but argues he is entitled to equitable tolling
due to his low IQ and writing deficiencies during the limita-
tions period. The district court found Bills’s mental deficien-
cies were not so severe as to constitute an extraordinary
circumstance that prevented him from filing his petition on
time.
Because we conclude the district court should in the first
instance review Bills’s claims under the legal standard we dis-
cuss below, we REVERSE the dismissal of Bills’s habeas
petition and REMAND the case for application of the facts to
the correct standard.
19672 BILLS v. CLARK
I. Background
While serving time in California state prison on other
charges, Bills was convicted of possession of a sharp instru-
ment by a state prisoner and sentenced to 25 years to life in
prison. He proceeded with a direct appeal through the Califor-
nia appellate courts. The California Supreme Court denied
review on October 29, 2003. Bills’s state court judgment
became final 90 days later, on January 28, 2004, when the
time expired for an appeal to the United States Supreme
Court. Under AEDPA, Bills had one year from that date to
file a federal habeas petition. See 28 U.S.C. § 2244(d)(1)(A)
(2006).
On November 15, 2004, during the one-year AEDPA limi-
tations period, Bills filed a state habeas petition. The filing of
this petition tolled the limitations period. His state petition
was denied on October 12, 2005. At that time, the AEDPA
limitations period began to run again, expiring on December
25, 2005. Bills filed a pro se federal habeas petition nearly 10
months later, on October 10, 2006.
In his federal habeas petition, Bills alleges various trial
errors and ineffective assistance of counsel. The district court
appointed counsel for Bills “[i]n light of the length of peti-
tioner’s sentence . . . .” Because the petition was untimely
filed, Bills’s counsel urged the district court to equitably toll
the AEDPA limitations period “due to his inability to read and
write, his neurological deficits, borderline to mildly retarded
level of intelligence, concurrent psychosis and lack of assis-
tance available to him.”
The magistrate judge ordered an evidentiary hearing con-
cerning Bills’s mental capacity and his right to equitable toll-
ing. At the hearing, Bills submitted evidence in support of his
tolling claim, and both Bills and a mental health expert testi-
fied.
BILLS v. CLARK 19673
A. Evidentiary Hearing
Bills testified he did not write his federal habeas petition,
instead relying on another prisoner for assistance. But Bills
acknowledged that while in jail he prepared a number of
administrative and judicial filings, including a pro se federal
habeas petition in 2000, an administrative complaint regard-
ing medical care in 2001, a 42 U.S.C. § 1983 complaint in
2001, and the state habeas petition that preceded this action
in 2004. Bills also represented himself pro se during the pris-
oner in possession of a sharp instrument trial—including
examining witnesses and making opening and closing argu-
ments. Nonetheless, Bills testified he had difficulty under-
standing some of the language used in his trial court briefs.
An expert witness, clinical psychologist Dr. John S. Miller,
attested to Bills’s capabilities both by affidavit and at the
hearing. Miller’s affidavit reflected his observations and test-
ing of Bills while in prison and an examination of related
medical documents. In summary, the affidavit states Bills’s
“thoughts were linear and his associations were logical.”
Although “[t]here was no overt evidence of hallucinations or
delusions,” Bills told Miller he suffered from them constantly.
Additionally, Miller found Bills “was not able to name the
current president, was not able to subtract serial 7s or 3s, and
was not able to spell the word ‘world’ ” forwards or back-
wards. Miller surveyed Bills’s mental health file, which
showed a history of substance abuse and behavioral disorders,
for which he was prescribed a variety of medications.
Miller also reported on several cognition tests he per-
formed. An intelligence scale test showed Bills was in the
lowest percentile for verbal IQ, verbal comprehension, and
working memory. On other tests, Bills fared better. He tested
borderline and low average for memory, and prison-
administered tests showed him to have normal cognitive func-
tioning. In the end, Miller diagnosed Bills as bipolar with a
variety of behavioral and cognitive disorders, and concluded
19674 BILLS v. CLARK
Bills “could [not] understand his legal rights sufficiently to
make rational choices with respect to acting upon them.”
At the evidentiary hearing, Miller was the only witness
other than Bills who testified. His direct examination gener-
ally confirmed the observations set forth in his affidavit. But
on cross-examination, Miller agreed that “central features” of
one of Bills’s personality disorders was “deceit and manipula-
tion,” and it was “typified by . . . disregard for the law.” Mil-
ler also testified a set of Bills’s test results had to be discarded
because Bills “exaggerated his symptoms,” although on redi-
rect Miller contended “[i]t’s easy to exaggerate, but it’s easy
to be caught.”
When asked whether Bills had the “reasonable degree of
rational understanding” needed to consult with an attorney,
Miller responded, “Well, it’s just I can’t, again, talk in abso-
lutes. It’s not that there was a total absence of reason and
logic, and it’s not that there was an abundance of it, and he
would be closer to the absence of it than the abundance of it
on the continuum.” Later, Miller testified that in his opinion
Bills was incapable of the inferential thinking necessary to
complete a federal habeas form. Miller was unable to say for
certain whether the cognitive functioning he observed was
present during the AEDPA limitations period. Although he
said the records showed Bills’s abilities “stayed in the same
ballpark,” he also conceded there may have been “quite a bit
of fluctuation.”
Bills also presented two psychological evaluations per-
formed on him in late 2000 while in prison. The first was per-
formed by Dr. Shawn Adair Johnston, a psychologist the
California superior court appointed to evaluate whether Bills
was competent to stand trial for the prisoner in possession of
a sharp instrument charge. Many of Johnston’s observations
were consistent with those of Miller: Bills had a below aver-
age or borderline intellectual functioning, he described an
abusive childhood, and he said he heard voices. But Johnston
BILLS v. CLARK 19675
concluded Bills was competent to stand trial because “[h]e
obviously understands both the nature of the charges and pro-
ceedings being taken against him and is . . . capable of work-
ing with his attorney in preparing a rational defense in his
case.”
Dr. John Alan Foster performed the second psychological
evaluation. Foster concluded Bills had a low average to bor-
derline intellectual ability. Bills told Foster about auditory
hallucinations, and Bills’s medical record showed he was pre-
scribed a variety of medications for bipolar and psychotic dis-
orders. In the end, like Johnston, Foster believed Bills was
competent to stand trial.
B. Magistrate Judge’s Recommendation
Based on the testimony and affidavits presented, the magis-
trate judge recommended the district court deny equitable toll-
ing. The magistrate judge concluded that Bills’s repeated
legal filings and his pro se representation in the state trial
showed he was competent during the AEDPA limitations
period. In addition, the discrepancies between the psycholo-
gists’ submissions and testimony and Bills’s demeanor when
testifying at the hearing cut in favor of finding Bills compe-
tent. The magistrate judge observed, “petitioner on occasion
appeared to undermine his own credibility in his effort to con-
vince the court of his deficiencies.” Finding that Bills failed
to establish he “was unable by reason of mental defect to
understand his need to timely file a habeas petition and unable
to take steps to effectuate that filing” (citing Dusky v. United
States, 362 U.S. 402 (1960) (per curiam)), the magistrate
judge rejected equitable tolling.
The district court adopted the magistrate judge’s findings
and recommendations in full. We granted a certificate of
19676 BILLS v. CLARK
appealability (COA) on whether the district court applied the
correct legal standard in denying equitable tolling.1
II. Analysis
Bills makes two arguments on appeal. First, he argues the
district court identified and applied the incorrect legal stan-
dard for equitable tolling due to mental deficiencies. Second,
Bills challenges the district court’s conclusion that his mental
condition was not so severe as to prevent him from filing a
timely petition.
“The dismissal of a petition for writ of habeas corpus as
time-barred is reviewed de novo. If the facts underlying a
claim for equitable tolling are undisputed, the question of
whether the statute of limitations should be equitably tolled is
also reviewed de novo. Otherwise, findings of fact made by
the district court are to be reviewed for clear error.” Spitsyn
v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). We review the
district court’s finding of competency for clear error. See
Comer v. Schriro, 480 F.3d 960, 962 (9th Cir. 2007) (en banc)
(per curiam).
Before addressing Bills’s arguments, we begin with some
background principles that apply to equitable tolling.
1
Bills also seeks a COA under the Americans with Disabilities Act
(ADA). He seems to argue the AEDPA limitations period must be tolled
for any petitioner with an ADA-covered disability. We deny the request.
“Under 28 U.S.C. § 2253(c)(2), a COA may issue only if the applicant has
made a substantial showing of the denial of a constitutional right. . . . [A]
COA should issue if jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right.” Wilson
v. Belleque, 554 F.3d 816, 825-26 (9th Cir. 2009), cert. denied, 130 S. Ct.
75 (2009). Bills’s ADA claim does not assert the denial of a constitutional
right, and the district court correctly denied Bills a COA on this claim.
BILLS v. CLARK 19677
A. Equitable Tolling
AEDPA commands that a “1-year period of limitation shall
apply to an application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court.” 28
U.S.C. § 2244(d)(1) (2006). When can that limitation period
be tolled for circumstances beyond a prisoner’s control?
[1] Just this year, the Supreme Court joined the eleven cir-
cuit courts that have considered the question in holding the
one-year statute of limitations for filing a habeas petition may
be equitably tolled if extraordinary circumstances beyond a
prisoner’s control prevent the prisoner from filing on time.
See Holland v. Florida, 560 U.S. ___, 130 S. Ct. 2549, 2554,
2562, slip op. at 1, 16 (2010). In Holland, the Court recog-
nized equitable tolling of the AEDPA one-year limitations
period when the prisoner can show “(1) that he has been pur-
suing his rights diligently, and (2) that some extraordinary cir-
cumstance stood in his way.” Id. at 2562 (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)). The diligence that
is required is “reasonable diligence.” Id. at 2565. While
eschewing a “mechanical rule” for determining extraordinary
circumstances, the Court pointed to a “flexibl[e],” “case-by-
case” approach, drawing “upon decisions made in other simi-
lar cases for guidance.” Id. at 2563. We should “exercise
judgment in light of prior precedent, but with awareness of
the fact that specific circumstances, often hard to predict in
advance, could warrant special treatment in an appropriate
case.” Id.
We have long recognized a general rule that equitable toll-
ing is available where the prisoner can show extraordinary
circumstances were the cause of an untimely filing. See, e.g.,
Calderon v. U.S. Dist. Court, 128 F.3d 1283, 1289 (9th Cir.
1997), overruled on other grounds en banc by 163 F.3d 530
(recognizing equitable tolling applies to AEDPA); Spitsyn,
345 F.3d at 799. Under our cases, equitable tolling is avail-
able for this reason only when “ ‘extraordinary circumstances
19678 BILLS v. CLARK
beyond a prisoner’s control make it impossible to file a peti-
tion on time’ ” and “ ‘the extraordinary circumstances’ were
the cause of [the prisoner’s] untimeliness.” Id. (emphasis
added). We have also stressed that “equitable tolling is
‘unavailable in most cases’ . . . . Indeed, ‘the threshold neces-
sary to trigger equitable tolling [under AEDPA] is very high,
lest the exceptions swallow the rule.’ ” Miranda v. Castro,
292 F.3d 1063, 1066 (9th Cir. 2002). And we have long-
cautioned that “[e]quitable tolling determinations are ‘highly
fact-dependent,’ ” Mendoza v. Carey, 449 F.3d 1065, 1068
(9th Cir. 2006), and are to be decided on a case-by-case basis.
Following the general rule, our cases have applied equita-
ble tolling in a variety of contexts. For example, we have held
an attorney’s misconduct may be “sufficiently egregious” to
warrant equitable tolling, when the attorney was hired a year
in advance of the AEDPA deadline, failed to prepare a peti-
tion, and—critically—kept the petitioner’s case file so that it
was “unrealistic” to expect the petitioner to file pro se. See
Spitsyn, 345 F.3d at 800-01. See also Corjasso v. Ayers, 278
F.3d 874, 878 (9th Cir. 2002) (holding equitable tolling war-
ranted when the district court incorrectly dismissed a habeas
petition and then lost the petition); Miles v. Prunty, 187 F.3d
1104, 1107 (9th Cir. 1999) (holding prison officials’ failure to
timely prepare a check for the court filing fee was an extraor-
dinary circumstance beyond the petitioner’s control).
[2] Not surprisingly, we also have long recognized equita-
ble tolling in the context of a petitioner’s mental illness. In
Calderon v. United States, for example, without delving into
the details, we acknowledged a “habeas petitioner’s mental
incompetency [is] a condition that is, obviously, an extraordi-
nary circumstance beyond the prisoner’s control” to justify
equitable tolling pending a competency hearing. 163 F.3d
530, 541 (9th Cir. 1998), rev’d on other grounds by Woodford
v. Garceau, 538 U.S. 202 (2003) (regarding AEDPA’s effec-
tive date). And in a different context, in Rohan ex rel. Gates
v. Woodford, 334 F.3d 803, 813 (9th Cir. 2003), we similarly
BILLS v. CLARK 19679
recognized a “constitutional due process right” to competency
in postconviction proceedings involving the death penalty.
Perhaps most pertinent is Laws v. Lamarque, 351 F.3d 919
(9th Cir. 2003), where we reiterated the causation requirement
recognized in our equitable tolling cases, holding that where
a habeas petitioner can show “mental incompetence in fact
caused him to fail to meet the AEDPA filing deadline, his
delay was caused by an ‘extraordinary circumstance . . . ,’ and
the deadline should be equitably tolled.” Id. at 923 (emphasis
added). In making the assessment, we examined “whether his
mental illness [during the limitations period] constituted the
kind of extraordinary circumstances beyond his control, mak-
ing filing impossible, for which equitable tolling is available.”
Id. at 922-23 (emphasis added). But nothing in Laws required
us to refine the legal standard and explore what mental condi-
tions would satisfy the extraordinary circumstances require-
ment.
Only a few other courts have wrestled with this problem
with respect to tolling AEDPA. Earlier this year, for example,
the Second Circuit held that “mental illness” can constitute an
extraordinary circumstance depending on “how severe an
obstacle [the illness] is for the prisoner endeavoring to com-
ply with AEDPA’s limitations period.” Bolarinwa v. Wil-
liams, 593 F.3d 226, 231-32 (2d Cir. 2010). To be eligible
under this severity standard, the petitioner “must demonstrate
that her particular disability constituted an ‘extraordinary cir-
cumstance’ severely impairing her ability to comply with the
filing deadline, despite her diligent efforts to do so.” Id. at
232. But the court did not give content to its severity standard,
instead remanding the “highly case-specific inquiry” to the
district court. See id.
With this background, we next turn to the proper legal stan-
dard.
19680 BILLS v. CLARK
B. Legal Standards for Tolling Due to Mental Impairment
The district court and parties put forth several different
approaches for evaluating a petitioner’s mental illness in this
context.
We start with the district court’s formulation. Under the
district court’s analysis, Bills must show:
he was unable by reason of mental defect to under-
stand his need to timely file a habeas petition and
unable to take steps to effectuate that filing. Included
within this showing would be a demonstration that
during the pertinent period, he was unable to ask for
available assistance in filing the habeas [petition].
The court based that standard on its reading of Dusky v.
United States, 362 U.S. 402 (1960) (per curiam), where the
Supreme Court held, in the context of whether a defendant is
mentally fit to stand trial, the issue is “whether [the petitioner]
has sufficient present ability to consult with his lawyer with
a reasonable degree of rational understanding—and whether
he has a rational as well as a factual understanding of the pro-
ceedings against him.” Id. at 402.
[3] Bills argues this standard—applicable to mental com-
petency to stand trial—is too narrow. He contends his mental
disabilities impaired his ability to “communicate rationally
with the federal courts,” i.e., prepare a written application,
thereby making it impossible for him to comply with
AEDPA’s filing deadlines. The state, in contrast, urges us to
find Bills was competent if he had a “rational and factual
understanding of the proceedings against him and he has the
current ability to consult his lawyer with a reasonable degree
of rational understanding.”
Each of these positions has some merit. To answer this
question, like the district court, we start with applicable
BILLS v. CLARK 19681
Supreme Court precedent. Several cases are instructive,
though not fully on point.
The first case is Dusky. In its brief per curiam opinion, the
Supreme Court set forth the standard a defendant must meet
to be competent to stand trial. Competency to stand trial
includes both (1) “whether [the defendant] has sufficient pres-
ent ability to consult with his lawyer with a reasonable degree
of rational understanding”; and (2) “whether he has a rational
as well as factual understanding of the proceedings against
him.” 362 U.S. at 402. As the Court later emphasized in reit-
erating the Dusky standard, it “has long been accepted that a
person whose mental condition is such that he lacks the
capacity to understand the nature and object of the proceed-
ings against him, to consult with counsel, and to assist in pre-
paring his defense may not be subjected to a trial.” Drope v.
Missouri, 420 U.S. 162, 171 (1975).
Several years later, the Supreme Court expanded its use of
the Dusky standard to pretrial proceedings. In Godinez v.
Moran, 509 U.S. 389 (1993), the Court held the same stan-
dard should apply in determining whether a defendant is com-
petent to plead guilty and knowingly and voluntarily waive
the right to assistance of counsel. Id. at 398 (rejecting “the
notion that competence to plead guilty or to waive the right
to counsel must be measured by a standard that is higher than
(or even different from) the Dusky standard”).
But in a 2008 case, the Supreme Court held a different stan-
dard for mental competency should apply to a defendant seek-
ing self-representation at trial. In Indiana v. Edwards, the
Court held defendants do not have a Sixth Amendment right
to refuse court-appointed counsel and represent themselves if
“they are not competent to conduct trial proceedings by them-
selves.” 554 U.S. 164, 178 (2008). Although the Court did not
define precisely the self-representation competency standard,
it did conclude competency to represent oneself is a higher
bar than Dusky’s competency to stand trial standard. Courts
19682 BILLS v. CLARK
may “take realistic account of the particular defendant’s men-
tal capacities,” and find some defendants “competent enough
to stand trial under Dusky but who still suffer from severe
mental illness to the point where they are not competent to
conduct trial proceedings by themselves.” Id. at 177-78.
None of these cases precisely apply here, but they are
instructive for their reasoning. For instance, in Godinez the
Court held the trial competency standard applies to plea hear-
ings because “while the decision to plead guilty is undeniably
a profound one, it is no more complicated than the sum total
of decisions . . . during the course of a trial.” Godinez, 509
U.S. at 398. The Court observed, however, that “the compe-
tence that is required of a defendant seeking to waive his right
to counsel is the competence to waive the right, not the com-
petence to represent himself.” Id. at 399. And in Edwards the
Court concluded that Godinez would not apply to self-
representation because “a defendant who would choose to
forgo counsel at trial presents a very different set of circum-
stances . . . [and] calls for a different standard.” Edwards, 554
U.S. at 174-75. The contrast between Godinez and Edwards
shows the “competency” standard does not exist in a vacuum
—it varies in relation to the task the defendant is expected to
perform. A decision to stand trial or plead guilty is different
from undertaking a self-defense at trial.
[4] Given this Supreme Court authority, any standard for
equitable tolling due to mental impairment must evaluate
whether the petitioner’s condition made it impossible to com-
ply with the filing deadline. See Spitsyn, 345 F.3d at 799. We
recognize the myriad circumstances at play—petitioners may
be representing themselves, employing counsel, or relying on
available prison resources while incarcerated. The inquiry
focuses on the ability of petitioners to comply with what the
law requires given their particular circumstances.
[5] With these cases in mind, we conclude that eligibility
for equitable tolling due to mental impairment requires the
petitioner to meet a two-part test:
BILLS v. CLARK 19683
(1) First, a petitioner must show his mental impair-
ment was an “extraordinary circumstance” beyond
his control, see Holland, 130 S. Ct. at 2562, by dem-
onstrating the impairment was so severe that either
(a) petitioner was unable rationally or factu-
ally to personally understand the need to
timely file, or
(b) petitioner’s mental state rendered him
unable personally to prepare a habeas peti-
tion and effectuate its filing.2
(2) Second, the petitioner must show diligence in
pursuing the claims to the extent he could understand
them, but that the mental impairment made it impos-
sible to meet the filing deadline under the totality of
the circumstances, including reasonably available
access to assistance. See id.
To reiterate: the “extraordinary circumstance” of mental
impairment can cause an untimely habeas petition at different
stages in the process of filing by preventing petitioner from
understanding the need to file, effectuating a filing on his
own, or finding and utilizing assistance to file. The “totality
of the circumstances” inquiry in the second prong considers
whether the petitioner’s impairment was a but-for cause of
any delay. Thus, a petitioner’s mental impairment might jus-
tify equitable tolling if it interferes with the ability to under-
2
The magistrate judge stated a habeas petitioner must show “he was
unable by reason of mental defect to understand his need to timely file a
habeas petition and unable to take steps to effectuate that filing.” (empha-
sis added). Under our formulation, a petitioner would be entitled to equita-
ble tolling if he could show either of those conditions were met: either he
did not understand his need to timely file or his mental impairment made
him unable to take steps to effectuate that filing. In either case, if the men-
tal impairment is so severe that it causes the untimely filing, the petitioner
is entitled to equitable tolling.
19684 BILLS v. CLARK
stand the need for assistance, the ability to secure it, or the
ability to cooperate with or monitor assistance the petitioner
does secure. The petitioner therefore always remains account-
able for diligence in pursuing his or her rights
[6] This standard flows naturally from Dusky, Godinez,
and Edwards. All three of those cases ask whether the defen-
dant or petitioner is mentally competent to do what the law
requires: in Dusky, stand trial; in Godinez, plead guilty; and
in Edwards, represent oneself at trial. Our standard requires
the court to evaluate the petitioner’s ability to do by himself
the two functions involved in complying with the AEDPA fil-
ing deadlines—i.e., understand the need to file within the lim-
itations period, and submit a minimally adequate habeas
petition—and to evaluate the petitioner’s diligence in seeking
assistance with what he could not do alone.3
[7] In practice, then, to evaluate whether a petitioner is
entitled to equitable tolling, the district court must: (1) find
the petitioner has made a non-frivolous showing that he had
a severe mental impairment during the filing period that
would entitle him to an evidentiary hearing; (2) determine,
after considering the record, whether the petitioner satisfied
his burden that he was in fact mentally impaired; (3) deter-
mine whether the petitioner’s mental impairment made it
impossible to timely file on his own; and (4) consider whether
the circumstances demonstrate the petitioner was otherwise
diligent in attempting to comply with the filing requirements.
3
Applying this standard will require the district court to evaluate how
a petitioner’s mental impairment bore on his ability to file. The relevant
question is: Did the mental impairment cause an untimely filing? See Spit-
syn, 345 F.3d at 799 (equitable tolling is available if it was “impossible
to file a petition on time”); but see Harris v. Carter, 515 F.3d 1051, 1055
n.5 (9th Cir. 2008) (“Despite the unequivocal ‘impossibility’ language in
our standard, we have not insisted that it be literally impossible for a peti-
tioner to file a federal habeas petition on time as a condition of granting
equitable tolling. We have granted equitable tolling in circumstances
where it would have technically been possible for a prisoner to file a peti-
tion, but a prisoner would have likely been unable to do so.”).
BILLS v. CLARK 19685
[8] With respect to the necessary diligence, the petitioner
must diligently seek assistance and exploit whatever assis-
tance is reasonably available. The court should examine
whether the petitioner’s mental impairment prevented him
from locating assistance or communicating with or suffi-
ciently supervising any assistance actually found. The record
does not address whether Bills was diligent in seeking assis-
tance with his claim. Nor does it address whether there was
any assistance available to Bills on reasonable terms.
The magistrate judge relied on the availability of a “jail-
house lawyer”—an inmate who assists other prisoners with
legal filings—to show Bills was not entitled to equitable toll-
ing since he had assistance in preparing legal materials during
the limitations period. In support of this conclusion, the mag-
istrate judge noted that our cases have required prisoners to
demonstrate diligence by showing they sought “assistance
from an inmate, library personnel, or other source,” if it was
available. See Mendoza, 449 F.3d at 1070.
[9] The availability of assistance is an important element
to a court’s diligence analysis. For example, if prison officials
or even other prisoners were readily available to assist Bills
in filing his habeas petition but Bills refused to accept their
assistance, a court could conclude Bills may not have been
diligent in pursuing his claims such that he is entitled to equi-
table tolling. That is not to say a prisoner fails the diligence
requirement for refusing jailhouse assistance. It is only part of
the overall assessment of the totality of circumstances that
goes into the equitable determination. Thus, in many circum-
stances, the existence of such help would be highly relevant
to the question of whether a petitioner’s mental condition
made it impossible to file a timely petition. But the availabil-
ity of jailhouse assistance could also cut the other way. If
legal help is available only because a prisoner has to resort to
bribery or succumb to extortion, and a prisoner does not do
so, a court would not find a lack of diligence. Here it is
19686 BILLS v. CLARK
unclear what assistance Bills had and how that assistance, if
any, bore on his ability to meet the filing deadline.
[10] Given our clarification of the legal standard governing
Bills’s entitlement to equitable tolling, we conclude the dis-
trict court did not properly frame its inquiry into the effects
of Bills’s mental impairment on his ability to pursue his
claims diligently during the AEDPA limitations period,
including whether he had reasonable access to assistance. We
therefore remand for reconsideration under the standard set
forth above.
III. Conclusion
Mindful of the Supreme Court’s observation that “often the
exercise of a court’s equity powers must be made on a case-
by-case basis,” Holland, 130 S. Ct. at 2563, we find it appro-
priate for the district court in the first instance to apply the
facts of the case to the legal standards we set forth today.
Therefore, we REVERSE the district court’s dismissal of
Bills’s habeas petition and REMAND for further proceedings.