Lasane Robertson v. Dave Davey , 694 F. App'x 599 ( 2017 )

FILED
NOT FOR PUBLICATION
AUG 02 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LASANE LEE ROBERTSON, No. 15-56156
Petitioner-Appellant, D.C. No.
2:12-cv-00633-GW-PLA
v.
DAVE DAVEY, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted July 11, 2017
Pasadena, California
Before: REINHARDT, FERNANDEZ, and WARDLAW, Circuit Judges.
Lasane Robertson (“Robertson”) appeals the district court’s dismissal of his
28 U.S.C. § 2254 habeas petition as untimely. We have jurisdiction pursuant to 28
U.S.C. §§ 1291 and 2253. We reverse the dismissal of Robertson’s habeas petition
and remand for further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The district court erred in finding that Robertson was ineligible for equitable
tolling during the periods in which he received legal assistance from fellow
prisoners, who filed state habeas petitions on his behalf. In Bills v. Clark, 628 F.3d
1092 (9th Cir. 2010), we laid out a two-part test for equitable tolling based on a
mental impairment. First, a petitioner must show that “his mental impairment was
an ‘extraordinary circumstance’ beyond his control,” rendering him unable to
personally prepare a habeas petition or understand the need to timely file. Id. at
1099–1100. Second, he must show that he was diligent in pursuing his claims “but
that [his] mental impairment made it impossible to meet the filing deadline under
the totality of the circumstances, including reasonably available access to
assistance.” Id. at 1100. This test does not preclude a petitioner from showing that
he was entitled to equitable tolling while he was receiving legal assistance from
fellow prisoners. As we explained in Bills, “[A] petitioner’s mental impairment
might justify equitable tolling if it interferes with the ability to understand the need
for assistance, the ability to secure it, or the ability to cooperate with or monitor
assistance the petitioner does secure.” Id. (emphasis added).
The district court did not determine whether Robertson met the requirements
for tolling under Bills because it found that, even if he did, the statute of limitations
expired during the time he had assistance from jailhouse lawyers. We remand for
2
the district court to make these findings in the first instance. See id. at 1101(remanding for the district court to make factual findings regarding petitioner’s
mental impairment and diligence). For the periods during which Robertson had
assistance, the district court must determine whether Robertson’s impairment
prevented him from adequately monitoring those helping him. See id. at 1100.
Concurrently, we grant Robertson’s unopposed request for judicial notice of
the Clark Remedial Plan and California Department of Corrections distribution
memo. See Fed. R. Evid. 201(b).
REVERSED; REMANDED.
3