* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

** The Honorable James K. Singleton, Senior United States District Judge for the District of Alaska, sitting by designation. NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

TERRY DARRYL KITCHEN, JR., Petitioner - Appellant,

v. TOM FELKER, Acting Warden, Respondent - Appellee. No. 10-16293D.C. No. 2:07-cv-00701-MCEDAD MEMORANDUM *

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., District Judge, Presiding Argued and Submitted June 17, 2011 San Francisco, California Before: BYBEE and MURGUIA, Circuit Judges, and SINGLETON, Senior District Judge. ** Appellant Terry Kitchen, Jr., (“Kitchen”) appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition as untimely. We review de novo whether 

# FILED

JUL 13 2011
MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 the statute of limitations for a habeas petition should be tolled. Harris v. Carter , 515 F.3d 1051, 1054 (9th Cir. 2008). Kitchen acknowledges that he did not f ile his federal petition within the one year limitations period prescribed by 28 U.S.C. § 2244(d)(1) but contends that he is entitled to approximately 18 months of equitable tolling. Although Kitchen presents his claim as one of equitable tolli ng, he is substantively arguing that the statute of limitations should have begun on May 7, 2006, when he discovered the factual predicate for his federal claim. See 28 U.S.C. § 2244(d)(1)(D). In October 2002, Kitchen pled guilty to one count of second degree murder with an enhancement and one count of forc ible sexual penetrati on. After Kitchen’s conviction and sentence were upheld on a ppeal, he was no longer represented by counsel. Shortly before Kitchen committe d the underlying crimes, he was given a psychological evaluation by Dr. Laura Doty , who noted that Kitchen suffered from learning deficits and other psychological issues. On April 6, 2005, Kitchen’s family retained counsel to represent K itchen in his post-conviction proceedings. On March 27, 2006, counsel asked Dr. Do ty to evaluate Kitchen’s competence from 2001 to 2002, while the plea negotiations were proceeding. Kitchen asserts he was entitled to equitable tolling until May 7, 2006, when counsel received Dr.3 Doty’s report that Kitchen suffered from a significant mental impairment at the time he entered his plea—the factual predicate for his claim. A habeas petitioner bears the burden of proving that he or she exercised due diligence in discovering the factual predicat e for his or her claim in order for the statute of limitations to begin running fro m the date he or she discovered the factual predicate of the claim. See Majoy v. Roe , 296 F.3d 770, 777 n.3 (9th Cir. 2002). Kitchen’s counsel knew of Dr. Do ty’s initial evaluation in 2005, and he knew enough to ask her to re-evalu ate Kitchen on March 27, 2006. See Hasan v. Galaza , 254 F.3d 1150, 1154 n.3 (citing Owens v. Boyd , 235 F.3d 356, 359 (7th Cir. 2000)). At this point, counsel should have promptly filed a protective petition in federal court along with a motion asking the federal court to stay and abey the federal habeas proceedings until st ate remedies were exhausted. See Pace v. DiGuglielmo , 544 U.S. 408, 416 (2005). The factual predicate for Kitchen’s federal petition existed at the time of his plea negotiations and was discoverable th rough due diligence no later than March1 Since the factual predicate was known or should have been known after Kitchen retained current counsel, and mo re than one year before April 12, 2007, the state of Kitchen’s mental health prio r to retaining counsel as a predicate for equitable tolling is irrelevant. Since counsel knew or should have known of the factual predicate no later than March 27, 2006, any mental or emotional difficulties Kitchen may have had would also be irre levant to toll the statute of limitations after this date as well. 4 27, 2006. Thus, Kitchen’s federal habeas petition, dated April 12, 2007, was untimely. 1
AFFIRMED.