FILED
NOT FOR PUBLICATION JUN 18 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JIMMY LEE BILLS, No. 12-17827
Petitioner - Appellant, D.C. No. 2:06-cv-02223-MCE-
GGH
v.
KEN CLARK, Warden, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Submitted January 27, 2014**
Before: HAWKINS and FISHER, Circuit Judges, and TYMKOVICH, Circuit
Judge.***
*
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).
***
The Honorable Timothy M. Tymkovich, United States Circuit Judge
for the Tenth Circuit, sitting by designation.
In the prior appeal of this case, Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010),
we articulated a two-part test for deciding whether a mental impairment constitutes
an “extraordinary circumstance” sufficient to equitably toll a prisoner’s time to file
a petition for habeas corpus relief under the Antiterrorism and Effective Death
Penalty Act of 1996.
Under the first prong, Bills explains that a mental impairment is an
“extraordinary circumstance” only when it is “so severe that either (a) petitioner
was unable rationally or factually to personally understand the need to timely file,
or (b) petitioner’s mental state rendered him unable to personally” prepare and file
the habeas petition. Bills, 628 F.3d at 1099–1100. Bills’s second prong requires
the prisoner to show that, despite his diligence, “the mental impairment made it
impossible to meet the filing deadline under the totality of the circumstances.” Id.
at 1100. Stated another way, to be eligible for equitable tolling, the otherwise
diligent petitioner’s mental impairment must be the cause-in-fact of any delay. See
Stancle v. Clay, 692 F.3d 948, 959 (9th Cir. 2012) cert. denied, --- U.S. ---, 133 S.
Ct. 1465, 185 L. Ed. 2d 372 (2013).
The district court concluded Mr. Bills has not met the second prong of Bills
because he was not “diligent in attempting to comply with the filing requirements.”
Bills, 628 F.3d at 1101. After our own careful review of the record, and
considering the totality of the circumstances surrounding Mr. Bills’s untimely
petition, we agree with the district court that Mr. Bills has not exercised the
requisite diligence to benefit from equitable tolling.
AFFIRMED.