NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AUDENCIO MALDONADO, No. 16-17044
Petitioner-Appellant, D.C. No. 4:14-cv-01920-JSW
v.
MEMORANDUM*
DANIEL PARAMO, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted October 16, 2017
San Francisco, California
Before: HAWKINS and W. FLETCHER, Circuit Judges, and KRONSTADT,**
District Judge.
Audencio Maldonado (“Petitioner”) appeals the denial of his petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court concluded
that the petition was time-barred. We have jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253, and affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable John A. Kronstadt, United States District Judge for the
Central District of California, sitting by designation.
The determinative issue on appeal is whether, due to Petitioner’s claimed
mental impairment, the limitations period should have been tolled for at least five
years and two months between when his judgment of conviction in the Santa Clara
County Superior Court (“Superior Court”) became final and when the initial
habeas petition was filed there. To establish such equitable tolling, Petitioner must
satisfy a two-part test. First, he must show that his impairment was so severe that
he “was unable rationally or factually to personally understand the need to timely
file” the petition or that his mental impairment “rendered him unable personally to
prepare a habeas petition and effectuate its filing.” Bills v. Clark, 628 F.3d 1092,
1100 (9th Cir. 2010). Second, he must show that he acted with “diligence in
pursuing the claims to the extent he could understand them, but that the mental
impairment made it impossible to meet the filing deadline under the totality of the
circumstances, including reasonably available access to assistance.” Id. (citing
Holland v. Florida, 560 U.S. 631, 648 (2010)).
The district court found that Petitioner failed to demonstrate that he was
severely impaired at any time during the period between July 6, 2007, when the
judgment became final, and September 11, 2013, when the first petition was filed
in the Superior Court. The district court also found that Petitioner failed to exercise
reasonable diligence in filing the petition.
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There was no clear error in the finding of the district court as to Petitioner’s
mental capacity. The record includes the following evidence that supports that
determination: (1) a transcript of Petitioner’s plea colloquy, where neither the
judge nor Petitioner’s counsel raised concerns as to his mental state at that time,
and, assisted by a Spanish language interpreter, Petitioner answered numerous yes-
or-no questions before the judge determined that Petitioner understood the nature
of the charges and the consequences of his plea and voluntarily and knowingly had
waived certain rights; (2) the police report prepared with respect to the charged
conduct, which described Petitioner’s contemporaneous instruction to a witness
who discovered him with the victim “not to tell” and his later admission that “he
would have preferred to do what he did to adult women,” reflecting that Petitioner
“understood that what he had done was wrong”; (3) the presentence report
indicating Petitioner had been diagnosed with depressive disorder, for which
medication had been prescribed, and was “currently considered stable”; (4) July
2007 prison records stating that Petitioner met the “criteria for inclusion in the MH
[Mental Health] Treatment Population, and has a recommended level of care of
CCCMS,” see Lemire v. Cal. Dep’t of Corrections & Rehabilitation, 726 F.3d
1062, 1069 (9th Cir. 2013) (noting “CCCMS is the lowest level of care in the
State’s prison mental health delivery system, and is designed to provide a level of
care equivalent to that received by non-incarcerated patients through outpatient
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psychiatric treatment”); (5) several coherent written requests submitted by the
Petitioner to prison administrators for accommodations allegedly required by the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.; and (6)
several motions Petitioner brought in the Superior Court prior to filing the habeas
petition there.
The principal contrary evidence introduced by Petitioner was: (1) statements
made by another inmate with no psychiatric expertise, claiming Petitioner had the
mental capacity of a ten-year old child; and (2) Petitioner’s statements to the police
at the time of his arrest that he was “not well mentally since a motorcycle
accident,” and “it was the devil that got into him and made him do it.”
Reviewed collectively, the evidence confirms that there was no clear error in
the determination by the district court as to Petitioner’s mental capacity.
Accordingly, the district court correctly concluded that Petitioner did not meet his
burden to establish equitable tolling.
Petitioner also failed to demonstrate that he acted diligently. Petitioner has
not presented any evidence that, during the first year of the limitations period, he
was unsuccessful in obtaining assistance comparable to what he received in 2012.
Nor did he explain why he subsequently had the ability to advance his many ADA
claims, but not file a habeas petition.
AFFIRMED.
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