Jones v Turner

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 14 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HENRY A. JONES, Jr., No. 09-56592
Petitioner - Appellant, D.C. No. 5:06-cv-00675-DDP-
MLG
v.
SCOTT TURNER, Warden; A. J. MALFI, MEMORANDUM*
Warden,
Respondents - Appellees.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Argued and Submitted August 31, 2011
Pasadena, California
Before: SCHROEDER and GOULD, Circuit Judges, and MCCUSKEY, Chief
District Judge.**
Appellant Henry A. Jones appeals the district court's dismissal of his 28
U.S.C. § 2254 habeas corpus petition as untimely, rejecting Jones’s argument for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. Rule 36-3.
**
The Honorable Michael Patrick McCuskey, Chief District Judge for
the U.S. District Court for Central Illinois, Urbana, sitting by designation.
equitable tolling based on his mental impairments. We have jurisdiction under 28
U.S.C. §§ 1291, 2253, and we affirm the district court's dismissal of the petition.
Jones contends that his mental illness, low cognitive ability, and learning
disability considered together are extraordinary circumstances that entitle him to
equitable tolling. After an evidentiary hearing, the district court found that Jones’s
numerous pro se filings during the statute of limitations period show that these
impairments did not make it impossible for him to timely file his habeas petition.
See Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005), modified on other
grounds, 447 F.3d 1165 (9th Cir. 2006). This finding was not clear error.1
In the alternative, Jones asks that we remand this case to apply the two-part
test recently articulated in Bills v. Clark, 628 F.3d 1092, 1099–1101 (9th Cir.
2010). We have reviewed the record, and conclude that a remand is unnecessary
because there is nothing in the record that would yield a different result under the
standard articulated in Bills. The district court found that Jones was able to file a
habeas petition despite his mental impairments, and that he did not demonstrate
that he needed to rely on other inmates to do so. The record supports these
findings.
1
We do not reach Jones’s arguments that he is also entitled to statutory
tolling. Even assuming that Jones was entitled to all the statutory tolling he argues
for, his petition is not timely without equitable tolling based on his mental
impairments.
Finally, Jones’s argument that he could not file his petition “on his own”
under Bills because he relied on sample forms and filing directions provided by
others is foreclosed by Raspberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006)
(holding that a pro se petitioners lack of legal sophistication does not warrant
equitable tolling).
AFFIRMED.