FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RODNEY RAY ROBERTS,  No. 08-55901

Petitioner-Appellant, D.C. No.

v.  2:07-cv-07580-

JSL-PLA JOHN MARSHALL, Warden,

Respondent-Appellee. OPINION 

Appeal from the United States District Court

for the Central District of California

J. Spencer Letts, District Judge, Presiding

Submitted September 2, 2010*

Pasadena, California

Filed December 13, 2010

Before: Diarmuid F. O’Scannlain, Ronald M. Gould and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge O’Scannlain

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). 

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COUNSEL

Kurt David Hermansen, San Diego, California, filed the briefs

for the petitioner-appellant. 

Michael C. Keller, Deputy Attorney General, Los Angeles,

California, filed a brief for respondent-appellee. With him on

the brief were Edmund G. Brown Jr., Attorney General of

California, Dane R. Gillette, Chief Assistant Attorney General, Palema C. Hamanaka, Senior Assistant Attorney GenROBERTS v. MARSHALL 19971
eral, and Xiomara Costello, Supervising Deputy Attorney

General.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide whether a habeas petitioner is entitled to

an evidentiary hearing to determine whether his asserted mental incompetence warrants equitable tolling of the one-year

statute of limitations provided by the Antiterrorism and Effective Death Penalty Act of 1996.

I

Rodney Ray Roberts pled guilty to second degree murder

in California Superior Court on June 26, 2002, and was sentenced to fifteen years’ to life imprisonment. Roberts did not

appeal his conviction, but constructively filed a pro se petition

for a writ of habeas corpus in the Los Angeles County Superior Court on November 18, 2002, alleging ineffective assistance of counsel.1

 The Superior Court denied the petition on

December 4, 2002. On June 17, 2004, Roberts filed, in the

California Court of Appeal, a motion that the court construed

as an application for leave to file a belated notice of appeal.

The court denied the application on July 15, 2004.

Roberts constructively filed a second habeas petition in the

1When a prisoner gives prison authorities a habeas petition or other

pleading to mail to court, the court deems the petition constructively

“filed” on the date it is signed. See Huizar v. Carey, 273 F.3d 1220, 1223

(9th Cir. 2001). Although Roberts’s petition was filed on December 3,

2002, and was unsigned, he asserted that it was dated November 18, 2002.

The Magistrate Judge utilized the earlier date noted by Roberts in calculating the applicable statutory tolling period. For purposes of this appeal, we

do the same. 

19972 ROBERTS v. MARSHALL
Los Angeles Superior Court on January 18, 2006, which was

denied on the same day. On August 14, 2006, Roberts filed

a habeas petition in the California Court of Appeal, which

was denied on August 23, 2006. On December 20, 2006, Roberts filed a petition for writ of habeas corpus in the California

Supreme Court, which was denied on June 13, 2007.

Roberts filed this petition for a writ of habeas corpus in the

United States District Court for the Central District of California on November 20, 2007, again alleging ineffective assistance of counsel. Roberts attached several mental health

evaluations, treatment plans, interdisciplinary progress notes,

and statements of informed consent to his petition. These

records indicate that Roberts was taking psychotropic medications to treat his severe psychotic depression disorder before

and during the statute of limitations period.2 However, Roberts’s mental functions were repeatedly classified as “good,”

“fair,” or “within normal limits.” On November 26, 2003, for

example, the California Department of Corrections’ clinical

psychologist listed Roberts’s appearance, behavior, mood,

speech, appetite, sleep, and affect as within normal limits.

Significantly, Roberts’s “Insight and Judgment” were also

found to be within normal limits on that date. The medical

records also clearly indicate that, in the psychologist’s opinion, Roberts was not delusional. 

The district court noted that Roberts’s petition was filed

almost four years after the one-year statute of limitations provided by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”) had run.3 In response to Roberts’s request

2The clinical psychologist indicated on August 16, 2002, that Roberts

was taking Zyprexa, a drug used to treat the symptoms of schizophrenia

and bipolar disorder. 

3The case was initially assigned to a Magistrate Judge, who submitted

his final report and recommendation on April 23, 2008. On April 29, 2008,

the district court judge expressed his agreement with recommendations of

the Magistrate Judge and adopted his final report and recommendation. 

ROBERTS v. MARSHALL 19973
for equitable tolling, the court observed that “there is no indication in any of the medical evidence presented by petitioner

that he was unable to function or that his thought process was

impaired during the limitations period.” The court therefore

held that Roberts was not entitled to equitable tolling, and, on

April 29, 2008, the court dismissed the petition with prejudice.

Roberts timely appealed, and a motions panel of this court

granted a certificate of appealability with respect to the question of “whether the district court properly dismissed appellant’s habeas corpus petition as untimely, including whether

appellant is entitled to equitable tolling based on mental

incompetence.”

II

AEDPA requires a state prisoner to seek federal habeas

relief within one year after his state court conviction becomes

final. 28 U.S.C. § 2244(d)(1). The “limitation period shall run

from . . . the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for

seeking such review.” Id. § 2244(d)(1)(A). Because Roberts

was convicted on June 26, 2002, his state court conviction

became final on August 25, 2002—the date on which his time

for seeking review of his conviction expired. See Cal. R. Ct.

8.308(a). Under AEDPA’s one-year statute of limitations,

Roberts had until August 25, 2003, to file a federal habeas

petition. Roberts, however, did not file his petition for a writ

of habeas corpus in the district court until August 15, 2007,

nearly four years after AEDPA’s one-year statute of limitations had run. Since Roberts does not contest that he is ineligible for statutory tolling, his petition is time barred unless he

is entitled to equitable tolling.4See Rasberry v. Garcia, 448

4AEDPA provides that the statute of limitations is tolled while a properly filed application for state post-conviction review is pending. 28

U.S.C. § 2244(d)(2). Therefore, Roberts’s petition for a writ of habeas cor19974 ROBERTS v. MARSHALL
F.3d 1150, 1153 (9th Cir. 2006) (“[Ninth Circuit] precedent

permits equitable tolling of the one-year statute of limitations

on habeas petitions.”).

“Generally, a litigant seeking equitable tolling bears the

burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S.

408, 418 (2005).5 Roberts argues that he has diligently pursued his rights and that his mental incompetence was an

extraordinary circumstance beyond his control that caused his

untimeliness. He further argues that since he alleged mental

incompetency in a verified pleading, we should remand for an

pus in the Los Angeles County Superior Court—filed on November 18,

2002, and denied on December 4, 2002—tolled the statute of limitations

for sixteen days. However, extending the filing deadline from August 25,

2003, to September 11, 2003, does not help Roberts, since he did not file

his petition until the summer of 2007. Roberts is not entitled to tolling for

the “gap” between his first habeas petition and his next petition, filed 19

months later in the California Court of Appeal. See Evans v. Chavis, 546

U.S. 189, 200-01 (2006); Banjo v. Ayers, 614 F.3d 964, 967-69 (9th Cir.

2010). Nor do the subsequent state petitions Roberts filed after September

12, 2003, entitle him to any additional tolling. See Ferguson v. Palmateer,

321 F.3d 820, 823 (9th Cir. 2003). 

5The doctrine of equitable tolling in our circuit is not entirely settled.

Before Pace, equitable tolling was available only when “extraordinary circumstances beyond a prisoner’s control ma[d]e it impossible to file a petition on time.” Gaston v. Palmer, 417 F.3d 1030, 1034 (9th Cir. 2005)

(internal quotation marks and citation omitted). Ninth Circuit opinions differ as to whether Pace established a new standard for determining when

a petitioner is eligible for equitable tolling. Compare Roy v. Lampert, 465

F.3d 964, 969 (9th Cir. 2006) (applying pre-Pace standard), with Rasberry, 448 F.3d at 1153 (applying Pace standard). See also Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008) (noting that the Ninth Circuit has

“not settled on a consistent standard” for equitable tolling). But there may

not even be a “substantive difference . . . between the two standards.”

Harris, 515 F.3d at 1055. And in any event, we need not choose between

the two standards for purposes of this case, since the arguable differences

between them are not at issue. 

ROBERTS v. MARSHALL 19975
evidentiary hearing to determine if equitable tolling is warranted. See Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006)

(noting that a habeas petitioner should “receive an evidentiary

hearing when he ‘makes a good faith allegation that would,

if true, entitle him to equitable tolling’ ” (quoting Laws v.

Lamarque, 351 F.3d 919, 919 (9th Cir. 2003)).

[1] A petitioner seeking equitable tolling bears the burden

of showing both that there were “extraordinary circumstances,” and that the “extraordinary circumstances were the

cause of his untimeliness.” Bryant v. Ariz. Att’y Gen., 499

F.3d 1056, 1061 (9th Cir. 2007) (emphasis added). This court

has consistently held mental incompetence to be an extraordinary circumstance beyond the prisoner’s control. See Laws,

351 F.3d at 923. Therefore, where “a habeas petitioner’s mental incompetence in fact caused him to fail to meet the

AEDPA filing deadline, his delay was caused by an extraordinary circumstance beyond [his] control.” Id. (internal quotation marks omitted). 

Roberts argues that this case is controlled by our holding in

Laws, and that he is entitled to an evidentiary hearing to determine whether his mental incompetence warrants equitable

tolling. In Laws, the pro se petitioner alleged, in a verified

pleading, that his “delay in filing was attributable to psychiatric medication which deprived [him] of any kind of consciousness.”6

Id. at 921 (internal quotation marks omitted). The

district court dismissed the petition. On appeal, we vacated

the district court’s order and remanded for “further factual

development of his claim that the limitations period should be

tolled because of his mental incompetency during the period

in which he could have timely filed.” Id. at 921. We explained

that Laws should receive an evidentiary hearing since he had

“made a good-faith allegation that would, if true, entitle him

to equitable tolling” and since there were “circumstances con6Because Laws filed his petition pro se, we treated the allegations in the

verified state petition attached to his Traverse as an affidavit. Id. at 924.

19976 ROBERTS v. MARSHALL
sistent with [his] petition . . . under which he would be entitled to . . . equitable tolling.”

7

Id. at 921, 924 (internal

quotation marks omitted).

[2] Although Roberts argues that he is entitled to an evidentiary hearing under the rule set forth in Laws, his case is

clearly distinguishable. In Laws, the district court was not

presented with any medical records pertaining to Laws’s

alleged mental incompetence. All the court had before it were

Laws’s allegations of mental incompetence and the fact that

Laws’s mental health was at issue during his trial. Id. at 923

(noting that the state “offered no evidence at all” to contradict

Laws’s allegations of mental incompetence). In this case, the

district court had access to extensive medical records that

indicated Roberts’s relevant mental functions were either

“good” or “within normal limits.” These medical records

reflected the specific dates on which Roberts was examined,

and on which he was prescribed certain medications. The district court evaluated this evidence and concluded that Roberts’s mental incompetency was not the cause of his

untimeliness. The district court also noted that Roberts managed to file several petitions for post-conviction relief in state

court during the time for which Roberts seeks equitable tolling. See Gaston v. Palmer, 417 F.3d 1030, 1035 (9th Cir.

2005) (affirming district court decision concluding that

“[b]ecause [Gaston] was capable of preparing and filing state

court petitions [during the limitations period], it appears that

he was capable of preparing and filing a [federal] petition during the [same time]”). Roberts presented the same arguments

in those state court petitions that he now presents in his federal habeas petition. 

7One of the circumstances consistent with Laws’s allegation of mental

incompetence was the fact that in 1993, “it took three psychiatrists, two

psychologists, and a judge to decide Laws’s competence” to stand trial. Id.

at 924. Clearly, Laws’s alleged mental incompetency predated his habeas

petition. 

ROBERTS v. MARSHALL 19977
[3] Under these circumstances, we are satisfied that the

district court did not abuse its discretion when it denied Roberts’s request for an evidentiary hearing. Where the record is

amply developed, and where it indicates that the petitioner’s

mental incompetence was not so severe as to cause the

untimely filing of his habeas petition, a district court is not

obligated to hold evidentiary hearings to further develop the

factual record, notwithstanding a petitioner’s allegations of

mental incompetence. See Laws, 351 F.3d at 924 (“Of course,

a petitioner’s statement, even if sworn, need not convince a

court that equitable tolling is justified should countervailing

evidence be introduced.”). District courts have limited

resources (especially time), and to require them to conduct

further evidentiary hearings when there is already sufficient

evidence in the record to make the relevant determination is

needlessly wasteful.

III

[4] Roberts has not demonstrated that the district court

abused its discretion by denying him an evidentiary hearing.

Nor has he carried his burden of establishing that he is entitled to equitable tolling. His federal petition is therefore

barred by AEDPA’s statute of limitations.

AFFIRMED. 

19978 ROBERTS v. MARSHALL