FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODNEY RAY ROBERTS, No. 08-55901
Petitioner-Appellant, D.C. No.
v. 2:07-cv-07580-
JOHN MARSHALL, Warden, JSL-PLA
Respondent-Appellee.
OPINION
Appeal from the United States District Court
for the Central District of California
J. Spencer Letts, District Judge, Presiding
Submitted September 2, 2010*
Pasadena, California
Filed December 13, 2010
Before: Diarmuid F. O’Scannlain, Ronald M. Gould and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge O’Scannlain
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
19969
ROBERTS v. MARSHALL 19971
COUNSEL
Kurt David Hermansen, San Diego, California, filed the briefs
for the petitioner-appellant.
Michael C. Keller, Deputy Attorney General, Los Angeles,
California, filed a brief for respondent-appellee. With him on
the brief were Edmund G. Brown Jr., Attorney General of
California, Dane R. Gillette, Chief Assistant Attorney Gen-
eral, Palema C. Hamanaka, Senior Assistant Attorney Gen-
19972 ROBERTS v. MARSHALL
eral, and Xiomara Costello, Supervising Deputy Attorney
General.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a habeas petitioner is entitled to
an evidentiary hearing to determine whether his asserted men-
tal incompetence warrants equitable tolling of the one-year
statute of limitations provided by the Antiterrorism and Effec-
tive Death Penalty Act of 1996.
I
Rodney Ray Roberts pled guilty to second degree murder
in California Superior Court on June 26, 2002, and was sen-
tenced to fifteen years’ to life imprisonment. Roberts did not
appeal his conviction, but constructively filed a pro se petition
for a writ of habeas corpus in the Los Angeles County Supe-
rior Court on November 18, 2002, alleging ineffective assis-
tance of counsel.1 The Superior Court denied the petition on
December 4, 2002. On June 17, 2004, Roberts filed, in the
California Court of Appeal, a motion that the court construed
as an application for leave to file a belated notice of appeal.
The court denied the application on July 15, 2004.
Roberts constructively filed a second habeas petition in the
1
When a prisoner gives prison authorities a habeas petition or other
pleading to mail to court, the court deems the petition constructively
“filed” on the date it is signed. See Huizar v. Carey, 273 F.3d 1220, 1223
(9th Cir. 2001). Although Roberts’s petition was filed on December 3,
2002, and was unsigned, he asserted that it was dated November 18, 2002.
The Magistrate Judge utilized the earlier date noted by Roberts in calculat-
ing the applicable statutory tolling period. For purposes of this appeal, we
do the same.
ROBERTS v. MARSHALL 19973
Los Angeles Superior Court on January 18, 2006, which was
denied on the same day. On August 14, 2006, Roberts filed
a habeas petition in the California Court of Appeal, which
was denied on August 23, 2006. On December 20, 2006, Rob-
erts filed a petition for writ of habeas corpus in the California
Supreme Court, which was denied on June 13, 2007.
Roberts filed this petition for a writ of habeas corpus in the
United States District Court for the Central District of Califor-
nia on November 20, 2007, again alleging ineffective assis-
tance of counsel. Roberts attached several mental health
evaluations, treatment plans, interdisciplinary progress notes,
and statements of informed consent to his petition. These
records indicate that Roberts was taking psychotropic medica-
tions to treat his severe psychotic depression disorder before
and during the statute of limitations period.2 However, Rob-
erts’s mental functions were repeatedly classified as “good,”
“fair,” or “within normal limits.” On November 26, 2003, for
example, the California Department of Corrections’ clinical
psychologist listed Roberts’s appearance, behavior, mood,
speech, appetite, sleep, and affect as within normal limits.
Significantly, Roberts’s “Insight and Judgment” were also
found to be within normal limits on that date. The medical
records also clearly indicate that, in the psychologist’s opin-
ion, Roberts was not delusional.
The district court noted that Roberts’s petition was filed
almost four years after the one-year statute of limitations pro-
vided by the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) had run.3 In response to Roberts’s request
2
The clinical psychologist indicated on August 16, 2002, that Roberts
was taking Zyprexa, a drug used to treat the symptoms of schizophrenia
and bipolar disorder.
3
The case was initially assigned to a Magistrate Judge, who submitted
his final report and recommendation on April 23, 2008. On April 29, 2008,
the district court judge expressed his agreement with recommendations of
the Magistrate Judge and adopted his final report and recommendation.
19974 ROBERTS v. MARSHALL
for equitable tolling, the court observed that “there is no indi-
cation in any of the medical evidence presented by petitioner
that he was unable to function or that his thought process was
impaired during the limitations period.” The court therefore
held that Roberts was not entitled to equitable tolling, and, on
April 29, 2008, the court dismissed the petition with preju-
dice.
Roberts timely appealed, and a motions panel of this court
granted a certificate of appealability with respect to the ques-
tion of “whether the district court properly dismissed appel-
lant’s habeas corpus petition as untimely, including whether
appellant is entitled to equitable tolling based on mental
incompetence.”
II
AEDPA requires a state prisoner to seek federal habeas
relief within one year after his state court conviction becomes
final. 28 U.S.C. § 2244(d)(1). The “limitation period shall run
from . . . the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” Id. § 2244(d)(1)(A). Because Roberts
was convicted on June 26, 2002, his state court conviction
became final on August 25, 2002—the date on which his time
for seeking review of his conviction expired. See Cal. R. Ct.
8.308(a). Under AEDPA’s one-year statute of limitations,
Roberts had until August 25, 2003, to file a federal habeas
petition. Roberts, however, did not file his petition for a writ
of habeas corpus in the district court until August 15, 2007,
nearly four years after AEDPA’s one-year statute of limita-
tions had run. Since Roberts does not contest that he is ineligi-
ble for statutory tolling, his petition is time barred unless he
is entitled to equitable tolling.4 See Rasberry v. Garcia, 448
4
AEDPA provides that the statute of limitations is tolled while a prop-
erly filed application for state post-conviction review is pending. 28
U.S.C. § 2244(d)(2). Therefore, Roberts’s petition for a writ of habeas cor-
ROBERTS v. MARSHALL 19975
F.3d 1150, 1153 (9th Cir. 2006) (“[Ninth Circuit] precedent
permits equitable tolling of the one-year statute of limitations
on habeas petitions.”).
“Generally, a litigant seeking equitable tolling bears the
burden of establishing two elements: (1) that he has been pur-
suing his rights diligently, and (2) that some extraordinary cir-
cumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005).5 Roberts argues that he has diligently pur-
sued his rights and that his mental incompetence was an
extraordinary circumstance beyond his control that caused his
untimeliness. He further argues that since he alleged mental
incompetency in a verified pleading, we should remand for an
pus in the Los Angeles County Superior Court—filed on November 18,
2002, and denied on December 4, 2002—tolled the statute of limitations
for sixteen days. However, extending the filing deadline from August 25,
2003, to September 11, 2003, does not help Roberts, since he did not file
his petition until the summer of 2007. Roberts is not entitled to tolling for
the “gap” between his first habeas petition and his next petition, filed 19
months later in the California Court of Appeal. See Evans v. Chavis, 546
U.S. 189, 200-01 (2006); Banjo v. Ayers, 614 F.3d 964, 967-69 (9th Cir.
2010). Nor do the subsequent state petitions Roberts filed after September
12, 2003, entitle him to any additional tolling. See Ferguson v. Palmateer,
321 F.3d 820, 823 (9th Cir. 2003).
5
The doctrine of equitable tolling in our circuit is not entirely settled.
Before Pace, equitable tolling was available only when “extraordinary cir-
cumstances beyond a prisoner’s control ma[d]e it impossible to file a peti-
tion on time.” Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005)
(internal quotation marks and citation omitted). Ninth Circuit opinions dif-
fer as to whether Pace established a new standard for determining when
a petitioner is eligible for equitable tolling. Compare Roy v. Lampert, 465
F.3d 964, 969 (9th Cir. 2006) (applying pre-Pace standard), with Ras-
berry, 448 F.3d at 1153 (applying Pace standard). See also Harris v. Car-
ter, 515 F.3d 1051, 1055 (9th Cir. 2008) (noting that the Ninth Circuit has
“not settled on a consistent standard” for equitable tolling). But there may
not even be a “substantive difference . . . between the two standards.”
Harris, 515 F.3d at 1055. And in any event, we need not choose between
the two standards for purposes of this case, since the arguable differences
between them are not at issue.
19976 ROBERTS v. MARSHALL
evidentiary hearing to determine if equitable tolling is war-
ranted. See Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006)
(noting that a habeas petitioner should “receive an evidentiary
hearing when he ‘makes a good faith allegation that would,
if true, entitle him to equitable tolling’ ” (quoting Laws v.
Lamarque, 351 F.3d 919, 919 (9th Cir. 2003)).
[1] A petitioner seeking equitable tolling bears the burden
of showing both that there were “extraordinary circum-
stances,” and that the “extraordinary circumstances were the
cause of his untimeliness.” Bryant v. Ariz. Att’y Gen., 499
F.3d 1056, 1061 (9th Cir. 2007) (emphasis added). This court
has consistently held mental incompetence to be an extraordi-
nary circumstance beyond the prisoner’s control. See Laws,
351 F.3d at 923. Therefore, where “a habeas petitioner’s men-
tal incompetence in fact caused him to fail to meet the
AEDPA filing deadline, his delay was caused by an extraordi-
nary circumstance beyond [his] control.” Id. (internal quota-
tion marks omitted).
Roberts argues that this case is controlled by our holding in
Laws, and that he is entitled to an evidentiary hearing to deter-
mine whether his mental incompetence warrants equitable
tolling. In Laws, the pro se petitioner alleged, in a verified
pleading, that his “delay in filing was attributable to psychiat-
ric medication which deprived [him] of any kind of conscious-
ness.”6 Id. at 921 (internal quotation marks omitted). The
district court dismissed the petition. On appeal, we vacated
the district court’s order and remanded for “further factual
development of his claim that the limitations period should be
tolled because of his mental incompetency during the period
in which he could have timely filed.” Id. at 921. We explained
that Laws should receive an evidentiary hearing since he had
“made a good-faith allegation that would, if true, entitle him
to equitable tolling” and since there were “circumstances con-
6
Because Laws filed his petition pro se, we treated the allegations in the
verified state petition attached to his Traverse as an affidavit. Id. at 924.
ROBERTS v. MARSHALL 19977
sistent with [his] petition . . . under which he would be enti-
tled to . . . equitable tolling.”7 Id. at 921, 924 (internal
quotation marks omitted).
[2] Although Roberts argues that he is entitled to an evi-
dentiary hearing under the rule set forth in Laws, his case is
clearly distinguishable. In Laws, the district court was not
presented with any medical records pertaining to Laws’s
alleged mental incompetence. All the court had before it were
Laws’s allegations of mental incompetence and the fact that
Laws’s mental health was at issue during his trial. Id. at 923
(noting that the state “offered no evidence at all” to contradict
Laws’s allegations of mental incompetence). In this case, the
district court had access to extensive medical records that
indicated Roberts’s relevant mental functions were either
“good” or “within normal limits.” These medical records
reflected the specific dates on which Roberts was examined,
and on which he was prescribed certain medications. The dis-
trict court evaluated this evidence and concluded that Rob-
erts’s mental incompetency was not the cause of his
untimeliness. The district court also noted that Roberts man-
aged to file several petitions for post-conviction relief in state
court during the time for which Roberts seeks equitable toll-
ing. See Gaston v. Palmer, 417 F.3d 1030, 1035 (9th Cir.
2005) (affirming district court decision concluding that
“[b]ecause [Gaston] was capable of preparing and filing state
court petitions [during the limitations period], it appears that
he was capable of preparing and filing a [federal] petition dur-
ing the [same time]”). Roberts presented the same arguments
in those state court petitions that he now presents in his fed-
eral habeas petition.
7
One of the circumstances consistent with Laws’s allegation of mental
incompetence was the fact that in 1993, “it took three psychiatrists, two
psychologists, and a judge to decide Laws’s competence” to stand trial. Id.
at 924. Clearly, Laws’s alleged mental incompetency predated his habeas
petition.
19978 ROBERTS v. MARSHALL
[3] Under these circumstances, we are satisfied that the
district court did not abuse its discretion when it denied Rob-
erts’s request for an evidentiary hearing. 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. See Laws, 351 F.3d at 924 (“Of course,
a petitioner’s statement, even if sworn, need not convince a
court that equitable tolling is justified should countervailing
evidence be introduced.”). District courts have limited
resources (especially time), and to require them to conduct
further evidentiary hearings when there is already sufficient
evidence in the record to make the relevant determination is
needlessly wasteful.
III
[4] Roberts has not demonstrated that the district court
abused its discretion by denying him an evidentiary hearing.
Nor has he carried his burden of establishing that he is enti-
tled to equitable tolling. His federal petition is therefore
barred by AEDPA’s statute of limitations.
AFFIRMED.