Joseph Stancle v. Ivan Clay , 692 F.3d 948 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH STANCLE,  No. 09-56374
Petitioner-Appellant, D.C. No.
v.  2:09-cv-01451-
IVAN D. CLAY, Warden, ODW-MLG
Respondent-Appellee.
 OPINION
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted
February 6, 2012—Pasadena, California
Filed August 28, 2012
Before: Dorothy W. Nelson, Diarmuid F. O’Scannlain, and
N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith
9971
9974 STANCLE v. CLAY
COUNSEL
John Ward, San Francisco, California, for the petitioner-
appellant.
Kamala D. Harris, Dane R. Gillette, Pamela C. Hamanaka,
Kenneth C. Byrne, and David C. Cook (argued), California
Attorney General, Los Angeles, California, for the
respondent-appellee.
OPINION
N.R. SMITH, Circuit Judge:
In this appeal, Joseph Stancle challenges the district court’s
conclusion that his 28 U.S.C. § 2254 habeas petition is time-
barred by the one-year statute of limitations in the Antiterro-
STANCLE v. CLAY 9975
rism and Effective Death Penalty Act of 1996 (“AEDPA”),
codified at 28 U.S.C. § 2244(d). We confront two issues in
determining whether the petition was time-barred. As to statu-
tory tolling, it is only appropriate for the period between two
state habeas petitions filed in the same court when the second
petition is “limited to an elaboration of the facts relating to the
claims in the first petition.” See King v. Roe, 340 F.3d 821,
823 (9th Cir. 2003) (per curiam), abrogated on other grounds
by Evans v. Chavis, 546 U.S. 189 (2006). Thus, reviewing de
novo the district court’s dismissal, we affirm the district
court’s ruling that Stancle is not entitled to statutory gap toll-
ing for the forty-four day period between the denial of his first
habeas petition filed in the Superior Court of California,
County of Los Angeles (the “superior court”) and the filing of
his second petition in that same court, because his second
petition was not limited to an elaboration of the facts relating
to the claims in his first petition. As to equitable tolling, even
assuming de novo review, we affirm the district court’s ruling
that Stancle is not entitled to such tolling. Stancle fails to meet
his burden of showing that his “mental impairment made it
impossible to meet the filing deadline under the totality of the
circumstances, including reasonably available access to assis-
tance.” See Bills v. Clark, 628 F.3d 1092, 1100 (9th Cir.
2010).
I. FACTS AND PROCEDURAL HISTORY
On January 10, 2007, Stancle pleaded nolo contendre in
California Superior Court to one count of continuous sexual
abuse of a child (Cal. Penal Code § 288.5(a)) and one count
of committing a lewd act upon a child (Cal. Penal Code
§ 288(a)). He was sentenced to twelve years in prison for the
first count and six years for the second, to be served concur-
rently. Stancle did not appeal. Hence, the judgment became
final on March 11, 2007, the date California’s sixty-day
appeal period lapsed. See Cal. R. Ct. 8.308(a).
9976 STANCLE v. CLAY
On October 12, 2007, Stancle filed a petition for writ of
habeas corpus in the superior court. On November 13, 2007,
the superior court denied the petition. The superior court’s
November 13, 2007 minute order stated: “The Court reads
and considers the petition for writ of habeas corpus filed
November 8, 2007. This date, the petition for writ of habeas
corpus is denied.” Stancle filed another petition in the same
superior court on December 27, 2007 (forty-four days after
the first petition was denied).1 The superior court denied the
second petition on January 24, 2008. On February 3, 2008,
Stancle filed a petition in the California Court of Appeal,
which was summarily denied on February 14, 2008. Then, on
March 13, 2008, Stancle filed a petition in the California
Supreme Court, which was summarily denied on October 16,
2008.
On February 24, 2009, Stancle filed a petition for writ of
habeas corpus in the United States District Court for the Cen-
tral District of California. Ivan Clay (Appellee) filed a motion
to dismiss, arguing that the petition was time-barred by the
AEDPA one-year statute of limitations. Stancle filed a
response. However, the magistrate judge concluded that the
motion to dismiss should be granted, because Stancle was not
entitled to either statutory “gap” tolling or equitable tolling.
In the magistrate judge’s report and recommendation, he
recognized that Stancle’s federal habeas petition would have
been timely if the entire period starting from the filing of the
first petition in the superior court (October 12, 2007) to the
denial of his last petition by the California Supreme Court
(October 16, 2008) tolled the AEDPA statute of limitations.
However, citing Biggs v. Duncan, 339 F.3d 1045, 1048 (9th
Cir. 2003), the magistrate judge found that Stancle was “not
entitled to statutory gap tolling for the 44 days between the
1
We point out the number of days that elapsed between Stancle’s first
and second superior court petitions, because this is the period at issue in
this case.
STANCLE v. CLAY 9977
two state superior court filings, from November 13, 2007 to
December 27, 2007, because the petitions were filed in the
same court, rather than being pursued at the next appellate
level.” Of the 365 days allowed to file the habeas petition,
215 days expired from the March 11, 2007 final judgment
date to the filing of the first petition on October 12, 2007, and
forty-four days expired between the denial of the first superior
court petition and the filing of the second superior court peti-
tion. Because the forty-four day period was not eligible for
tolling, Stancle was left with 106 days from October 16, 2008
(when the California Supreme Court denied his petition) to
file a federal petition—i.e., a deadline of January 30, 2009.
Therefore, the magistrate judge concluded that Stancle’s Feb-
ruary 24, 2009 federal habeas petition filing was untimely
pursuant to 28 U.S.C. § 2244(d)(1).
Stancle also argued that his petition should be considered
timely, because he is entitled to equitable tolling based on his
illiteracy and cognitive challenges. In support of the argu-
ment, Stancle included a declaration from his jailhouse law-
yer, Jesse Wagner. In the declaration, Wagner stated that he
drafted Stancle’s petition pursuant to the American Disabili-
ties Act and because Stancle required assistance due to his
illiteracy and cognitive challenges. Wagner further stated that,
based on his experience with Stancle and his review of educa-
tional records and institutional assessments, he had learned
that Stancle’s educational battery was that of a second grader,
and he “is unable to articulate his thoughts in a cognizant
manner; asks identical questions repetitively; and appears to
be unable to understand general matter of a daily routine.”
Further, Stancle attached a testing document indicating that
his reading, mathematics, and language skills were generally
at a second grade level.
Notwithstanding, the magistrate judge concluded that Stan-
cle was not entitled to equitable tolling, because he did not
show that “his alleged low intelligence prevented him from
understanding his legal rights or from filing a timely petition.”
9978 STANCLE v. CLAY
The magistrate judge noted that Stancle had only shown “a
significant educational deficit, which the Ninth Circuit has
held is not a basis for equitable tolling.” In sum, the magis-
trate judge found that Stancle had “not demonstrated that any
extraordinary circumstance stood in the way of his filing a
timely petition.”
The district court accepted and adopted the magistrate
judge’s report and recommendation in full and ordered the
petition dismissed with prejudice. A timely notice of appeal
followed. We granted a certificate of appealability for “the
following issue: whether the district court properly dismissed
appellant’s 28 U.S.C. § 2254 petition as untimely, including
whether appellant is entitled to (1) statutory ‘gap’ tolling for
the period of time between the superior court’s dismissal of
appellant’s first petition and his filing of a second petition in
that same court, and/or (2) equitable tolling based on mental
incompetence.”
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 2253. “We
review de novo a district court’s dismissal of a petition for
writ of habeas corpus under AEDPA’s statute of limitations.”
Summers v. Schriro, 481 F.3d 710, 712 (9th Cir. 2007). The
district court’s findings of fact and competency determination
are reviewed for clear error. Bills, 628 F.3d at 1096. The peti-
tioner bears the burden of demonstrating that he or she is enti-
tled to equitable tolling. Rasberry v. Garcia, 448 F.3d 1150,
1153 (9th Cir. 2006). “If the facts underlying a claim for equi-
table tolling are undisputed, the question of whether the stat-
ute of limitations should be equitably tolled is . . . reviewed
de novo. Otherwise, findings of fact made by the district court
are to be reviewed for clear error.” Bills, 628 F.3d at 1096
(internal quotation marks omitted) (quoting Spitsyn v. Moore,
345 F.3d 796, 799 (9th Cir. 2003)). “[I]f a district court’s
findings rest on an erroneous view of the law, they may be set
aside on that basis.” Pullman-Standard v. Swint, 456 U.S.
STANCLE v. CLAY 9979
273, 287 (1982). The district court may be affirmed on any
ground supported by the record. Kemp v. Ryan, 638 F.3d
1245, 1254 (9th Cir. 2011).
III. DISCUSSION
A. Statutory Gap Tolling
[1] AEDPA sets a one-year statute of limitations period on
state prisoners’ habeas corpus petitions. 28 U.S.C.
§ 2244(d)(1). However, “[t]he time during which a properly
filed application for State post-conviction or other collateral
review . . . is pending shall not be counted toward [the] period
of limitation . . . .” Id. § 2244(d)(2). “The United States
Supreme Court has held that applications for state post-
conviction relief . . . will be deemed ‘pending’ for purposes
of 28 U.S.C. § 2244(d)(2), even during the intervals between
the denial of a petition by one court and the filing of a new
petition at the next level . . . .” Biggs, 339 F.3d at 1046 (citing
Carey v. Saffold, 536 U.S. 214, 223-25 (2002)). In other
words, “an application for post conviction relief is pending
during the ‘intervals between a lower court decision and a fil-
ing of a new petition in a higher court.’ ” Id. at 1048 (quoting
Carey, 536 U.S. at 223); accord Banjo v. Ayers, 614 F.3d 964,
968 (9th Cir. 2010) (“The period between a California lower
court’s denial of review and the filing of an original petition
in a higher court is tolled—because it is part of a single round
of habeas relief . . . .”).
Although the gaps or intervals between the filing of peti-
tions to higher courts are usually tolled, Banjo, 614 F.3d at
968; Biggs, 339 F.3d at 1048 n.1, we employ a general two-
part test to determine whether the period between petitions
filed in the same court are tolled, see Banjo, 614 F.3d at 968
(“We employ a two-part test to determine whether the period
between the denial of one petition and the filing of a second
petition should be tolled.”).
9980 STANCLE v. CLAY
First, we ask whether the petitioner’s subsequent
petitions are limited to an elaboration of the facts
relating to the claims in the first petition. If not, these
petitions constitute a “new round” and the gap
between the rounds is not tolled. But if the petitioner
simply attempted to correct the deficiencies, then the
petitioner is still making proper use of state court
procedures, and his application is still “pending” for
tolling purposes. . . . We then ask whether they were
ultimately denied on the merits or deemed untimely.
In the former event, the time gap between the peti-
tions is tolled; in the latter event it is not.
King, 340 F.3d at 823 (some internal quotation marks and
citations omitted); accord Banjo, 614 F.3d at 968-69 (outlin-
ing the same test). The court applies the test outlined in King
(the “King test”) even if the first petition was denied based on
deficiencies and with allowance by the court to amend in
order to comply. See King, 340 F.3d at 823 (the court applied
the test to a second petition after the first was denied based
on the lack of sufficiently particular allegations of the facts).
[2] The first prong of the King test is at issue here. Under
the first prong, in order for statutory gap tolling to be appro-
priate, Stancle’s second petition must be “limited to an elabo-
ration of the facts relating to the claims in the first petition,”
or “simply attempt[ ] to correct the deficiencies” of the first
petition. Id.
1. Application of King Framework: “New Round”
We must now determine whether Stancle limited his second
superior court petition “to an elaboration of the facts relating
to the claims in the first petition” and “simply attempted to
correct the deficiencies” in the first petition. King, 340 F.3d
at 823. Appellee contends that the following claims were
alleged for the first time in Stancle’s second petition and thus
it was not merely an elaboration of the facts in the first peti-
STANCLE v. CLAY 9981
tion: (1) Stancle was prejudiced due to cumulative miscon-
duct; (2) Stancle’s trial counsel erroneously did not declare a
doubt as to his competence to stand trial; and (3) the superior
court lacked jurisdiction over the case because the statute of
limitations expired for the charged offenses. However, Stan-
cle contends that the claims were alleged in the first petition.
[3] Before addressing whether each of the alleged new
claims is actually “new,” we must define a “claim.” “[T]he
term ‘claim’ means ‘an asserted federal basis for relief from
a state court’s judgment of conviction.’ ” West v. Ryan, 652
F.3d 1071, 1077 (9th Cir. 2011) (quoting Gonzalez v. Crosby,
545 U.S. 524, 530 (2005)). In West, we found the following
two assertions to be distinct claims: (1) the assertion that
counsel was ineffective for not adequately investigating the
defendant’s background and introducing evidence that would
have invalidated aggravating factors; and (2) the assertion that
defendant’s recent diagnosis of post-traumatic stress disorder
rendered him ineligible for the death penalty. Id. With this
background, we now assess whether Stancle’s alleged claims
were new.
The claim that Stancle was prejudiced by cumulative mis-
conduct was part of the introduction of the second petition
and not a formal new claim. In fact, the superior court did not
consider it to be an asserted ground for relief.
As for the claim that Stancle’s counsel erred by not declar-
ing a doubt as to Stancle’s competence, some confusion exists
initially in arriving at a conclusion as to whether it was a new
claim. The confusion arises because Stancle’s excerpts of
record include two pages in the materials related to the first
petition that seem to be two pages missing from the second
petition’s memorandum of points of authorities related to the
claim that Stancle’s counsel failed to address his sanity before
allowing him to plead guilty. In Stancle’s reply brief, he cites
to a portion of these two pages to show that his first petition
raised the claim, and thus, the claim is not new. We reject this
9982 STANCLE v. CLAY
argument, because the pages are actually part of Stancle’s sec-
ond petition.
[4] After clearing up this confusion and after reviewing
what was actually part of the first petition, we conclude that
the claim of ineffective assistance of counsel due to a failure
to raise a doubt regarding Stancle’s competence was a new
claim. In the first petition, Stancle did not allege that his trial
counsel was ineffective for any reason related to Stancle’s
competence. The first petition did state that Stancle’s right to
a “cogent defense” was violated, but it stated that the right
was violated by the “state court,” not Stancle’s counsel.
Lastly, although Stancle’s first petition asserted that his “inef-
fective counsel violated his [c]ivil rights,” this statement is
too vague to allow us to find the second petition’s claim an
elaboration of the facts of the statement in the first petition.
See Hemmerle v. Schriro, 495 F.3d 1069, 1076 (9th Cir.
2007) (“[I]n order for us to apply the King framework and to
conclude that the second petition is ‘limited to an elaboration
of the facts relating to the claims in the first petition,’ we must
know the nature of the original claims and at least some of the
facts relating to those claims. The vague assertion of ineffec-
tive assistance in [petitioner’s] first [post-conviction relief]
notice, where it was never further developed by a petition or
substantive memorandum, is insufficient to raise a ‘claim’ to
which the King framework can be applied.” (citation omit-
ted)).
[5] The claim that the superior court lacked jurisdiction
over the case because of the statute of limitations (hereinafter
the “jurisdiction claim”) was also a new claim. The jurisdic-
tion claim does not simply elaborate the facts of an original
claim. Stancle argues that, read in context, the jurisdiction
claim was just another factual allegation supporting ineffec-
tive assistance of counsel. We disagree. In the second petition,
each of the independent claims are presented in separate sec-
tions, and the jurisdiction claim is not part of Stancle’s section
outlining his claim for ineffective assistance of counsel. The
STANCLE v. CLAY 9983
second petition’s ineffective-assistance-of-counsel section
states that counsel was ineffective because counsel (1) failed
to object to the continuation of the proceedings during the
pendency of a competency evaluation, (2) failed to file a
motion to withdraw the guilty plea based on Stancle’s insan-
ity, and (3) failed to file a notice of appeal. Nowhere in the
discussion of the ineffective assistance of counsel claim does
Stancle state that counsel failed to assert that the court lacked
jurisdiction because of the expiration of the statute of limita-
tions for one of the charges.
[6] The second petition sets out the jurisdiction claim in an
independent section. In that section, Stancle makes the simple
claim that one of the charges was untimely, and therefore the
court did not have jurisdiction to accept his guilty plea. Stan-
cle does not argue that his counsel should have raised this
issue. Moreover, in the second petition’s summary of the
issue section, the jurisdiction claim is listed as a separate
claim, and the superior court treated the jurisdiction claim as
a separate claim in its denial of the petition. As such, the juris-
diction claim is not an elaboration of the facts supporting inef-
fective assistance of counsel, but rather a new claim
attempting to do more than elaborate facts related to claims in
the first petition. See West, 652 F.3d at 1077. Lastly, even
assuming that the jurisdiction claim was just another factual
allegation supporting ineffective assistance of counsel, it
would be a new ineffective-assistance-of-counsel claim. Cf.
Moormann v. Schriro, 426 F.3d 1044, 1056 (9th Cir. 2005);
Riascos-Prado v. United States, 66 F.3d 30, 35 (2d Cir. 1995).
Therefore, because Stancle did not limit his second petition to
an elaboration of the facts and his second petition started a
“new round,”2 he is not entitled to statutory gap tolling for the
2
Stancle cites Gaston v. Palmer (Gaston I), 417 F.3d 1030 (9th Cir.
2005), as a case supporting his arguments. However, Gaston I is not con-
trolling precedent in this circumstance, because the panel in Gaston I
granted a panel rehearing in light of Evans v. Chavis, 546 U.S. 189 (2006).
Gaston v. Palmer (Gaston II), 447 F.3d 1165 (9th Cir. 2006) (order). In
Gaston II, the panel revised its prior opinion and held that the petitioner
was not entitled to gap tolling between his first and second petitions
because the fifteen month delay was unreasonable—i.e., untimely. Id. at
1166-67.
9984 STANCLE v. CLAY
forty-four days between his first and second superior court
petitions.
2. Tolling is Inappropriate Between the First And Third
Petitions: Untimely
[7] We stated in Biggs that “an application for post convic-
tion relief is pending during the ‘intervals between a lower
court decision and a filing of a new petition in a higher
court.’ ” 339 F.3d at 1048 (quoting Saffold, 536 U.S. at 223).
“This is true even if the contents of the petitions change.”
Delhomme v. Ramirez, 340 F.3d 817, 819-20 (9th Cir. 2003)
(per curiam) (citing Biggs, 339 F.3d at 1048 n.1), abrogated
on other grounds by Evans, 546 U.S. 189. Further, in Del-
homme, we held that “Delhomme’s first round of review was
[not] affected by Delhomme’s filing overlapping petitions
during the pendency of that round.” Id. at 820. “[E]ach time
a petitioner files a new habeas petition at the same or a lower
level . . . the subsequent petition has no effect on the already
pending application, but triggers an entirely separate round of
review.” Id. “Thus, the first round of review remains pending,
and tolling does not end until that round is completed at the
California Supreme Court, as long as the petitioner does not
delay unreasonably, even if the petitioner begins a new round
while that round is still pending.” Id. Therefore, because Stan-
cle’s second petition started a new round and assuming (with-
out deciding) that his first and third petitions are part of the
same round, Stancle could be entitled to statutory tolling
between the first and third petitions unless the delay in filing
the third petition was unreasonable. See King, 340 F.3d at 823
(prong two); Delhomme, 340 F.3d at 820 n.3.
[8] Here, the eighty-two day delay between the denial of
Stancle’s first petition on November 13, 2007, and the filing
of the third petition on February 3, 2008, was unreasonable.
In Velasquez v. Kirkland, the court found time lapses of
eighty-one days and ninety-one days were “ ‘unreasonable’ in
California.” 639 F.3d 964, 968 (9th Cir. 2011). But the Velas-
STANCLE v. CLAY 9985
quez court inquired as to whether there was an adequate justi-
fication for the delays. See id. Here, Stancle has not proffered
a justification for the delay. Presumably, the justification is
that a second petition was filed in the California Superior
Court. It was filed forty-four days after the denial of the first
petition, and the third petition was filed ten days after the
denial of the second petition (with the second petition being
denied twenty-eight days after it was filed). The second peti-
tion was considered on the merits. However, Delhomme
stands for the principle that overlapping or additional petitions
have “no effect on the already pending application.” 340 F.3d
at 820. Therefore, assuming the first and third petitions were
part of the same round, the reasonableness of the delay
between Stancle’s first and third petitions is unaffected by the
second petition, and the delay was unreasonable.
3. Stancle’s First Petition Was Decided On the Merits
Stancle asserts that California courts do not allow succes-
sive petitions. According to Stancle, because the superior
court denied his second petition on the merits rather than
denying it as successive, the first petition must have been
denied for procedural deficiencies and the second petition
thus merely cured such deficiencies. As such, Stancle argues
that he is entitled to statutory tolling.
[9] We agree that California courts do not generally review
unjustified successive petitions. See In re Morgan, 237 P.3d
993, 1001 (Cal. 2010) (Corrigan, J., concurring and dissent-
ing); In re Clark, 855 P.2d 729, 740-42 (Cal. 1993). However,
a summary denial of a state habeas petition by a California
superior court “does not mean that the court has not consid-
ered the merits of the claims.” Clark, 855 P.2d at 741 n.9.
“Unless a procedural bar is apparent, the [California superior]
court will determine whether the petition states a prima facie
case for relief . . . .” Id. Furthermore, the Ninth Circuit deems
a summary denial of a writ of habeas corpus by a state court
(also called a postcard denial) denied on the merits. See Har-
9986 STANCLE v. CLAY
ris v. Superior Ct. of Cal., L.A. Cnty., 500 F.2d 1124, 1125,
1128-29 (9th Cir. 1974) (en banc) (finding that the statement
“Petition for Writ of Habeas Corpus denied” is a postcard
denial and deemed denied on the merits); see also Lewis v.
Borg, 879 F.2d 697, 698 (9th Cir. 1989). “[U]nless a court
expressly (not implicitly) states that it is relying upon a proce-
dural bar, we must construe an ambiguous state court
response as acting on the merits of a claim, if such a construc-
tion is plausible.”3 Chambers v. McDaniel, 549 F.3d 1191,
1197 (9th Cir. 2008) (construing Harris, 500 F.2d at 1125).
Here, the California superior court denied the first petition
without expressly relying on a procedural bar, so we deem the
first petition denied on the merits. By deeming Stancle’s first
petition as denied on the merits, his argument (that the second
petition merely corrected deficiencies because the first peti-
tion was denied for procedural deficiencies) fails.
Even if we were not to assume that the superior court
denied Stancle’s first petition on the merits, Stancle’s argu-
ment would still fail. The King test applies when determining
whether tolling is appropriate between the two petitions
regardless whether the previous petition was denied for proce-
dural deficiencies or denied on the merits. See Banjo, 614
F.3d at 969 (applying the King framework to two petitions
filed in California Superior Court, even though the first was
denied on the merits and the second was denied as succes-
sive); King, 340 F.3d at 823 (first petition was denied for pro-
cedural deficiencies).
3
Stancle argues that Evans, 546 U.S. at 197, overturns the presumption
that a denial without comment or citation is on the merits. However, Evans
held that a denial on the merits or the presumption that the denial was on
the merits “does not automatically warrant a holding that the filing was
timely . . . .” Evans, 546 U.S. at 197 (emphasis in original). The Supreme
Court did not overturn the Ninth Circuit’s presumption that a denial with-
out comment or citation is on the merits.
STANCLE v. CLAY 9987
4. Asserting New Claims Is Not Limiting The Subsequent
Petition To an Elaboration of the Facts or Correcting
Deficiencies
Stancle lastly argues that the King test does not prevent gap
tolling of a subsequent petition that raises new claims as long
as the petition corrects deficiencies. This faulty argument may
originate from the language in King. King first states that
“subsequent petitions are limited to an elaboration of the facts
relating to the claims in the first petition,” but then states that
“if the petitioner simply attempted to correct the deficiencies,
then the petitioner is still making proper use of state court
procedures.” King, 340 F.3d at 823 (internal quotation marks
omitted).
[10] Our case law requires that the second petition be “lim-
ited to an elaboration of the facts relating to the claims in the
first petition,” King, 340 F.3d at 823, and any attempt to cor-
rect deficiencies must not add new claims. In King, the first
petition was denied based on the failure to allege facts with
sufficient particularity as required by In re Swain, 209 P.2d
793 (Cal. 1949), and People v. Duvall, 886 P.2d 1252 (Cal.
1995). King, 340 F.3d at 823. King’s second series of peti-
tions “made no attempt to correct his prior petition, and there-
fore were not offered simply to remediate deficiencies, see
Swain, . . . [209 P.2d 793], Duvall, . . . 886 P.2d 1252 . . . .”
Id. Because King cites to Swain and Duvall (which require
that facts be alleged with sufficient particularity) when dis-
cussing the need to correct deficiencies, the deficiencies to be
corrected were presumably the need to elaborate the facts
related to the claims in the first petition.
[11] Further, our case of Hemmerle v. Schriro indicates
that the second petition may not bring new claims, but rather
must only elaborate facts relating to claims of the first peti-
tion. See 495 F.3d at 1076. We stated that we would have to
conclude “that the second petition is ‘limited to an elaboration
of the facts relating to the claims in the first petition,’ ” if we
9988 STANCLE v. CLAY
were to apply the King framework. Id. (quoting King, 340
F.3d at 823). We did not mention the correction of deficien-
cies in this explanation. See id. In fact, we noted that an
extremely vague assertion of ineffective assistance “is insuffi-
cient to raise a ‘claim’ to which the King framework can be
applied.” Id. This language indicates that the King framework
applies only to claims in the first petition; thus, correction of
deficiencies means an elaboration of the factual grounds for
claims raised in the first petition. Thereafter, we recognized
that under King the first petition “will often involve an incom-
plete or insufficient first petition that is corrected or embel-
lished” by a subsequent petition. Id. We found that the alleged
first petition was not even a petition at all. Id. “Therefore, the
second petition did not ‘correct’ or ‘remediate deficiencies’ in
the first petition; rather it stated the claims for the first time.”
Id. (citation omitted).
[12] Based on King and Hemmerle, King’s requirement
that a second petition must attempt to correct deficiencies
means that the second petition must be “limited to an elabora-
tion of the facts relating to the claims in the first petition.”
King, 340 F.3d at 823. Stancle did not so limit his second
petition to elaborations of facts relating to the claims in his
first petition. Therefore, he is not entitled to gap tolling for the
forty-four days between his first and second petitions.
B. Equitable Tolling
Stancle bases his equitable tolling argument on his alleged
mental incompetency. Thus, we would generally review the
district court’s finding regarding Stancle’s competency for
clear error. See Bills, 628 F.3d at 1096. Stancle argues that the
“district court’s finding[ ] rest[s] on an erroneous view of the
law,” Pullman-Standard, 456 U.S. at 287, because the district
court failed to consider Bills, 628 F.3d 1092, and thus our
review is de novo. We need not determine the appropriate
standard of review, because even assuming de novo review,
we must affirm the district court.
STANCLE v. CLAY 9989
Bills established the following two-part test to determine if
we should allow equitable tolling based on mental impair-
ment:
(1) First, a petitioner must show his mental impair-
ment was an “extraordinary circumstance” beyond
his control by demonstrating 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) 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.
628 F.3d at 1099-1100 (citations and footnote omitted).
Bills notes that, “to evaluate whether a petitioner is entitled
to equitable tolling, the district court must . . . determine
whether the petitioner’s mental impairment made it impossi-
ble to timely file on his own . . . .” Id. at 1100-01 (emphasis
added). However, “[w]ith respect to the necessary diligence,
the petitioner must diligently seek assistance and exploit
whatever assistance is reasonably available.” Id. at 1101. Bills
summarizes the relevant question as “Did the mental impair-
ment cause an untimely filing?” Id. at 1100 n.3 (citing Spit-
syn, 345 F.3d at 799).
[13] Even assuming arguendo that the district court here
did not appropriately address whether Stancle’s mental
9990 STANCLE v. CLAY
impairment was an extraordinary circumstance under part one
of the Bills test, Stancle must meet both parts of the Bills test.
The district court appropriately found that Stancle effectively
failed to satisfy the second prong of that test. Under the sec-
ond prong, “the petitioner must show diligence in pursing the
claims . . . [and] that the mental impairment made it impossi-
ble to meet the filing deadline under the totality of the circum-
stances, including reasonably available access to assistance.”
Id. at 1100. “[T]he second prong considers whether the peti-
tioner’s impairment was a but-for cause of any delay.” Id. In
sum, the petitioner must show diligence in seeking assistance
with what he could not do alone. See id. Some of the same
considerations used to review the first prong of Bills are also
relevant to the analysis of the second prong, because the sec-
ond requires a review of the totality of the circumstances.
[14] Here, the magistrate judge noted that Stancle “had the
continual assistance of . . . Wagner in filing both his federal
and state habeas corpus petitions,” and the state court peti-
tions were filed “during the time immediately prior to the fil-
ing of his federal habeas petition.” Further, the magistrate
judge noted that Stancle delayed filing his first petition in
superior court for seven months, because he was waiting for
a response to his request for assistance from the Innocence
Project and a response for clemency from the Governor. Thus,
the magistrate judge concluded that “Petitioner has not dem-
onstrated that any extraordinary circumstance stood in the
way of his filing a timely petition.” The determination is
equivalent to a finding that Stancle was not diligent and “that
the mental impairment [did not make] it impossible to meet
the filing deadline under the totality of the circumstances,
including reasonably available access to assistance.” Bills,
628 F.3d at 1100. Thus, by adopting the magistrate judge’s
report and recommendation, the district court properly consid-
ered part two of the Bills test and properly found that it was
not satisfied.
STANCLE v. CLAY 9991
IV. Conclusion
Stancle is not entitled to statutory tolling for the time gap
or interval between the denial of his first superior court
habeas petition and the filing of his second to the same court,
because Stancle did not limit his second petition to an elabo-
ration of the facts or simply attempt to correct deficiencies.
Further, Stancle’s alleged mental incompetence is insufficient
to warrant equitable tolling, because he did not meet his bur-
den of showing that he could not have filed a timely petition
with the assistance he was receiving. For these reasons, the
decision of the district court is AFFIRMED.