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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

ROGELIO MAY RUIZ,

Petitioner,

v.

DAVID BAUGHMAN, Warden,

Respondent.

Case No. 3:17-cv-00338 CRB (PR)

ORDER GRANTING MOTION TO 

DISMISS PETITION FOR A WRIT OF 

HABEAS CORPUS

I. INTRODUCTION

Rogelio May Ruiz seeks federal habeas relief from his state convictions. (First Am. 

Pet.) Respondent moves to dismiss the petition for such relief as untimely and 

unexhausted. (Mot. Dismiss.) Because the Court agrees that the petition is untimely, the 

Motion to Dismiss is GRANTED. 

II. BACKGROUND

In November 2006, Petitioner pleaded guilty to four counts of lewd or lascivious 

acts on a child by force, and one count of oral copulation by use of force or injury in the 

Santa Clara County Superior Court. (First Am. Pet. Ex. A); Cal. Penal Code § 288(b)(1); 

Cal Penal Code § 288a(c)(2). On January 29, 2007, Petitioner received a sentence of forty 

years imprisonment. (First Am. Pet. Ex. D at 26, 28.) The California Court of Appeal

affirmed the conviction on June 28, 2007. (First Am. Pet. Ex. G.) Petitioner did not seek 

review in the California Supreme Court. (First Am. Pet.) 

Between 2007 and 2016, Petitioner filed four habeas petitions pro se with the Santa 

Clara County Superior Court, in which he challenged the conditions of his confinement,
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claimed he had the ineffective assistance of his trial counsel, and claimed he suffered cruel 

and unusual punishment. (First Am. Pet. Ex. H, J1, J2, L1, L2, N.) All four petitions were 

denied. (First Am. Pet. Ex. I, K, M, O.) Between May 30, 2014, and August 12, 2015, 

Petitioner filed five state habeas petitions pro se with the California Supreme Court, in 

which Petitioner raised claims concerning the conditions of his confinement. (First Am. 

Pet. at 4.) All five petitions were denied. (Id.) This federal habeas petition was filed on 

December 23, 2016. (Pet.)

III. DISCUSSION

A. Statute of Limitations

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a 

statute of limitation on petitions for a writ of habeas corpus filed by state prisoners. 28 

U.S.C. § 2244(d)(1). Under AEDPA, petitions filed by prisoners challenging non-capital 

state convictions or sentences must be filed within one year of the date on which: (A) The 

judgment became final after the conclusion of direct review or the time passed for seeking 

direct review; (B) an impediment to filing an application created by unconstitutional state 

action was removed, if such action prevented petitioner from filing; (C) the constitutional 

right asserted was recognized by the Supreme Court, if the right was newly recognized by 

the Supreme Court and made retroactive to cases on collateral review; or (D) the factual 

predicate of the claim could have been discovered through the exercise of due diligence. 

Id.

B. Timeliness of the Petition

Here, because Petitioner did not file a petition for review in the California Supreme 

Court after the California Court of Appeal affirmed the conviction on June 28, 2007, his 

process of direct review came to an end forty days later, on August 7, 2007. (First Am. 

Pet. Ex. G); see Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002) (explaining that 

the AEDPA limitations period begins to run from expiration of the time for seeking direct 

review). Petitioner therefore had until August 8, 2008, to file a federal habeas petition 
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within the one-year limitation period. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th 

Cir. 2001) (calculating AEDPA’s one-year limitation period according to Federal Rule of 

Civil Procedure 6(a)); (First Am. Pet. Ex. G). However, AEDPA’s one-year limitation 

period is subject to statutory tolling under § 2244(d)(2) for the “time during which a 

properly filed application for state post-conviction or other collateral review with respect 

to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). Here, Petitioner 

filed his first state habeas petition in the Santa Clara County Superior Court on August 15, 

2007, which was denied on September 26, 2007. (First Am. Pet. Ex. H, I.) Because his 

petition was properly filed within the one-year limitations period, the limitations period 

was tolled by forty-two days until September 18, 2008. (See First Am. Pet. Ex. H); 28 

U.S.C. § 2244(d)(2). Petitioner did not file his second state habeas petition until October 

16, 2014, after the limitations period expired on September 18, 2008. (First Am. Pet. Ex. 

J1.) His second petition for a writ of habeas corpus to the superior court did not revive the 

expired limitations period because AEDPA “does not permit the reinitiation of the 

limitations period that has ended before the state petition was filed.” See Ferguson v. 

Palmateer, 321 F.3d 820, 823 (9th Cir. 2003). Therefore, Petitioner is not entitled to 

further statutory tolling.

Petitioner’s federal habeas petition was not filed until December 23, 2016, which is 

well after the September 18, 2008, deadline. (Pet.) Thus, the petition is untimely unless 

Petitioner can show that he is entitled to equitable tolling. See Holland v. Florida, 560 

U.S. 631, 645 (2010) (holding that petitioners may be entitled to equitable tolling of the 

AEDPA statute of limitations).

C. Equitable Tolling

To receive equitable tolling of AEDPA’s one-year limitation period, a petitioner 

must show (1) that some “extraordinary circumstance” stood in his way and prevented him 

from filing on time, and (2) that he has been pursuing his rights diligently. Holland, 560 

U.S. at 649. The diligence required for purposes of equitable tolling is “reasonable 

diligence,” rather than “maximum feasible diligence.” Id. at 653 (citation and internal 
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quotation marks omitted). He also must show that the extraordinary circumstance 

“proximately caused” his late filing. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). 

This is a “very high bar” reserved for “rare cases.” Yeh v. Martel, 751 F.3d 1075, 1077 

(9th Cir. 2014). Equitable tolling determinations are highly fact-specific, and therefore 

require a flexible, case-by-case approach. Bills v. Clark, 628 F.3d 1092, 1097–98 (9th Cir. 

2010). If more than one “extraordinary circumstance” is alleged, a petitioner can show 

that the circumstances together made a timely filing impossible, rather than proving that 

each factor independently made a timely filing impossible. Ramirez v. Yates, 571 F.3d 

993, 1000 (9th Cir. 2009).

Petitioner claims that he is entitled to equitable tolling for the period between 

September 26, 2007, and December 23, 2016, because he: (1) reasonably relied on the 

incorrect legal advice of his court-appointed trial counsel; (2) cannot speak English and 

lacked access to Spanish-language legal materials and translators; (3) was repeatedly 

placed in administrative segregation where he lacked access to his personal legal materials; 

(4) suffered from mental health impairment while incarcerated; and (5) pursued his rights 

diligently during this time period. (Opp’n Mot. Dismiss at 6.) However, these

circumstances do not meet the high standard to warrant equitable tolling for the period 

between September 26, 2007, and December 23, 2016. Because Petitioner argues that 

these factors both individually and collectively qualify as “extraordinary circumstance[s]” 

justifying equitable tolling, the Court addresses his claims both individually and 

collectively. (See Opp’n Mot. Dismiss at 6.)

1. Reliance on Incorrect Attorney Advice 

Citing Gibbs v. Legrand, 767 F.3d 879 (9th Cir. 2014), Petitioner argues that he is 

entitled to equitable tolling because he was effectively abandoned by his trial counsel, who

failed to correctly inform him of filing deadlines. (Opp’n Mot. Dismiss at 8); see Gibbs, 

767 F.3d at 889. Petitioner claims that: (1) His trial counsel misinformed him about the 

appellate process when she advised him to file three different habeas petitions and wait 

two years between habeas filings; and (2) he did not receive notification of the superior 
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court’s denial of his 2007 state habeas petition until 2014 and thought that his appeal was 

properly pending throughout that time based on the incorrect advice of his trial counsel. 

(Pet’r Decl. ¶ 3, 5.) 

The right to the assistance of effective counsel is derived from the right to counsel 

for that specific proceeding. Miranda, 292 F.3d at 1068 (“[B]ecause [petitioner] had no 

right to the assistance of his appointed appellate counsel regarding post-conviction relief, it 

follows that he did not have the right to that attorney’s ‘effective’ assistance, either.”).

Further, equitable tolling is not warranted for “garden variety” claims of excusable 

attorney neglect, such as missing a filing deadline. Holland, 560 U.S. at 651–52. 

However, more serious instances of attorney misconduct, such as where an attorney fails to 

communicate with the client and perform essential services, may qualify as an 

“extraordinary circumstance” warranting equitable tolling. Id.; see also Maples v. 

Thomas, 565 U.S. 266, 271 (2012) (holding that petitioner was abandoned by his attorneys 

because they ceased working on petitioner’s case without informing him and without 

securing substitute counsel, and such abandonment was an extraordinary circumstance).

The distinction lies with whether the attorney’s error “is constructively attributable to the 

client and thus is not a circumstance beyond the litigant’s control.” Holland, 560 U.S. at 

657 (Alito, J., concurring). A petitioner cannot be held constructively responsible for the 

conduct of an attorney who has “abandoned” petitioner by ceasing to operate as his agent 

in a meaningful way. Maples, 565 U.S. at 282. 

Petitioner’s claim of attorney abandonment fails because he was not represented by 

counsel for his post-conviction proceedings. (See First Am. Pet. Ex. H, J1, L1, N.) 

Petitioner’s trial counsel could not have abandoned him for his post-conviction petitions.

The Ninth Circuit held in Miranda that petitioners are not entitled to equitable tolling based 

on incorrect legal advice from counsel regarding proceedings for which that counsel was 

not retained, stating that the petitioner in Miranda “had no right to” the legal advice given 

by his direct review counsel regarding petitioner’s post-conviction relief. Miranda, 292 

F.3d at 1067–68. Moreover, in cases where equitable tolling has been seriously considered 
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on grounds of attorney abandonment in post-conviction relief proceedings, petitioners 

were represented by counsel in those proceedings. See Holland, 560 U.S. at 635–36

(petitioner claiming attorney abandonment in post-conviction relief proceedings was

represented by counsel in those proceedings); Maples, 565 U.S. at 270 (same); Gibbs, 767 

F.3d at 882–83 (same); Spitsyn, 345 F.3d at 798 (same). Here, by contrast, Petitioner is 

claiming that he was abandoned by an attorney for a proceeding for which the attorney was 

not retained. (Opp’n Mot. Dismiss at 8); see Miranda, 292 F.3d at 1067–68.

Further, Petitioner’s failure to receive notice of the denial of his state habeas 

petition by the superior court cannot be attributed to the conduct of his trial counsel, as 

Petitioner filed his state habeas petition pro se. See Gibbs, 767 F.3d at 886 (explaining 

that a petitioner proceeding pro se is entitled to notification directly from the court 

regarding a decision made on their post-conviction relief petition). Notice was not the 

responsibility of Petitioner’s trial counsel, because she did not represent him in his postconviction proceedings. Cf. id. at 886–87 (noting that because petitioner was represented 

by counsel, counsel was the one to receive docket notifications by the court). Petitioner 

was the sole individual responsible for ensuring he was informed of the status of his 

habeas petitions.

Even if the circumstances of Petitioner’s representation did not bar him from 

making an attorney abandonment claim, trial counsel’s miscalculation of the filing 

deadline does not amount to an “extraordinary circumstance” outside of the control of 

Petitioner. See Holland, 560 U.S. at 651–52 (holding that a missed deadline due to an 

attorney’s “miscalculation” does not amount to more than negligence). Petitioner has 

incorrectly applied the reasoning in Gibbs to the facts of this case, arguing that like in 

Gibbs, Petitioner’s attorney’s conduct was extraordinary enough to constitute 

abandonment. (Opp’n Mot. Dismiss at 8.) In Gibbs, petitioner’s attorney—who was 

assigned to represent petitioner in his petitions for post-conviction relief—failed to inform 

petitioner that the Nevada Supreme Court had affirmed the denial of his state habeas 

petition, failed to communicate with petitioner despite petitioner’s numerous attempts to 
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communicate, and delayed in returning petitioner’s legal documents after petitioner 

terminated him as counsel. 767 F.3d at 883–84. In contrast, Petitioner’s trial attorney

made incorrect statements about federal habeas petition deadlines, which is not enough to 

constitute an “extraordinary circumstance.” See Miranda, 292 F.3d at 1068 

(“miscalculation of the limitations period . . . and . . . negligence in general do not 

constitute extraordinary circumstances sufficient to warrant equitable tolling.”) (quoting 

Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001)).

Petitioner was not abandoned by counsel during his post-conviction proceedings

because he was not represented by counsel during those proceedings and therefore could 

not have been abandoned during them. See id. at 1067–68. Regardless, miscalculation of

filing deadlines does not constitute an “extraordinary circumstance” outside the control of 

Petitioner. Id. at 1068. For these reasons, Petitioner is not entitled to equitable tolling on 

the ground of attorney abandonment. 

2. Lack of Spanish-Language Legal Materials 

Petitioner next contends that he is entitled to equitable tolling on the ground that he 

was denied access to legal materials in the only language he understands—Spanish—and 

his occasional access to amateur translation services was insufficient. (Opp’n Mot. 

Dismiss at 9; Pet’r Decl. ¶ 4.) Petitioner is not entitled to equitable tolling on this ground, 

as he has failed to demonstrate that he was diligent in his efforts to procure Spanishlanguage materials and has not offered substantive proof that he lacked access to Spanishlanguage materials during large portions of his incarceration. 

Language limitations may justify equitable tolling “if language barriers actually 

prevent timely filing.” Mendoza v. Carey, 449 F.3d 1065, 1069 (9th Cir. 2006). 

Petitioners seeking equitable tolling on language barrier grounds must demonstrate that for 

the duration of the AEDPA time limitation, they were unable to procure legal materials in 

their language or translation assistance despite “diligent efforts.” Id. at 1070.

Petitioner here offers little evidence that there were, in fact, no Spanish language 

legal materials in the prison libraries where he was incarcerated or any bilingual 
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individuals willing to help him with his petitions. (See Opp’n Mot. Dismiss at 9–11.) In 

Mendoza, the petitioner filed forty-seven declarations (in addition to his own) from 

Spanish-speaking inmates stating that there were no Spanish-language legal materials or 

librarians and legal clerks who spoke Spanish at the prison. 449 F.3d at 1067–68. Here, 

Petitioner claims that he lacked access to Spanish-language legal materials from 

September 2, 2008, to September 29, 2009, when he was housed at Salinas Valley State 

Prison, and after September 29, 2009, when he was transferred to Correctional Training 

Facility (Soledad). (Pet’r Decl. ¶ 9(c)–(d).) Specifically, Petitioner claims that he 

“believe[s] Correction[al] Training Facility did not have Spanish-language law library 

materials.” (Pet’r Decl. ¶ 9(d).) Petitioner has offered no substantive evidence other than 

his Declaration to support his belief that these two facilities lacked Spanish-language legal 

materials.

1

(See Opp’n Mot. Dismiss at 9–11.) Petitioner’s stated belief is insufficient 

without evidence that he requested access and was denied or that in fact these facilities 

lacked Spanish-language legal materials. See Mendoza, 449 F.3d at 1067–68 (Petitioner 

detailed multiple incidents where he requested access to Spanish-language legal materials 

and was denied or discovered that such materials did not exist, in addition to forty-seven 

declarations from other Spanish speaking inmates confirming that the facility lacked 

Spanish-language legal materials.). Further, it is unclear where Petitioner was held prior to 

September 2, 2008, and whether that facility had Spanish-language legal materials. (See

Pet’r Decl. ¶ 9.) 

 

1 Petitioner has cited case law wherein parties asserted that law libraries at the Salinas 

Valley State Prison and the Substance Abuse Treatment Facility in Corcoran lacked 

Spanish language legal materials or copies of the AEDPA in Spanish. This caselaw is 

inapposite because the time frames accounted for in these cases do not overlap with 

Petitioner’s incarceration. See Martinez v. Evans, No. CIV S–07–0999 FCD GGH P, 2009 

WL 1845092, at *4 (E.D. Cal. June 26, 2009) (unpub.) (parties stipulated there were no

Spanish language legal materials and no copy of AEDPA in Spanish at the Salinas Valley 

State Prison law library during 2003 and 2004); Marroquin v. Harman, No. CV 12–8667–

DDP (RBB), 2013 WL 6817649, at *7 (C.D. Cal. Dec. 20, 2013) (unpub.) (“Petitioner also 

has adduced evidence suggesting the prison library at the Substance Abuse Treatment 

Facility (‘SATF’) in Corcoran may have lacked any Spanish language materials” from 

2003 to 2005.). These cases do not provide support for Petitioner’s claim because they do 

not prove that the facilities lacked Spanish-language legal materials during the time 

Petitioner was incarcerated at those facilities, between 2008 and 2014.
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Petitioner has also failed to demonstrate that he was diligent in his efforts to procure 

Spanish-language legal materials or translation services. In Mendoza, the Ninth Circuit 

held that the inability to understand English “‘in and of itself, does not automatically’ 

justify equitable tolling.” 449 F.3d at 1070–71 (quoting Cobas v. Burgess, 306 F.3d 441, 

444 (6th Cir. 2002)). Even in his declaration, Petitioner has not described any instances 

where he attempted to obtain Spanish-language legal materials and was unable to access 

such materials. See Torres v. Dexter, 662 F. Supp. 2d 1156, 1160–61 (C.D. Cal. 2009) 

(explaining that the petitioner failed to make a showing that he was diligent in his efforts to 

obtain Spanish-language legal materials while incarcerated). 

Lastly, Petitioner has failed to account for the time most critical to his equitable 

tolling claim—from the denial of his first state habeas petition on September 26, 2007, to 

the expiration of his AEDPA deadline on September 18, 2008. (Pet’r Decl. ¶ 9(a)–(w); 

Opp’n Mot. Dismiss at 9–11); see Gibbs, 767 F.3d at 884–85 (explaining that the 

petitioner who was 193 days late in filing his federal habeas petition had to establish that 

he was entitled to equitable tolling “at least” for 193 days prior to the AEDPA deadline). 

Because reinitiation of the limitations period is not permitted, incidents that occurred after 

the expiration of the limitations deadline cannot be used to justify equitable tolling for the 

period before the expiration of the deadline. See Ferguson, 321 F.3d at 823 (holding that 

AEDPA does not permit reinitiation of the limitations period). As such, demonstrations 

that Petitioner lacked access to legal materials in Spanish after the expiration of his 

AEDPA limitations deadline on September 18, 2008, are insufficient. 

Petitioner has failed to demonstrate that he lacked access to Spanish-language legal 

materials or translation services and that he was diligent in his efforts to procure such 

materials and services. He has also failed to account for the period of time prior to the 

expiration of the AEDPA deadline. Thus, Petitioner is not entitled to equitable tolling on 

the ground of lack of access to Spanish-language legal materials.
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3. Access to Property and Legal Papers 

Petitioner next contends that he is entitled to equitable tolling because he lacked 

access to his personal legal materials throughout his incarceration when he was moved to 

different facilities and placed in administrative segregation. (Pet’r Decl. ¶ 9(a)–(w), 11(a)–

(c), 13(a)–(ee).) He is not entitled to equitable tolling on this ground, because he has 

failed to demonstrate that he was, in fact, denied access to his legal material throughout his 

transfers and while he was in administrative segregation. (See Opp’n Mot. Dismiss at 11–

12.) Further, Petitioner makes no argument that denial of access to his legal materials and 

property made timely filing impossible. (See id.)

The Ninth Circuit has held that equitable tolling may be justified when a prisoner 

has been denied access to their legal files, if lack of access made timely filing impossible 

and the petitioner pursued his or her rights diligently. Ramirez, 571 F.3d at 998. The 

reasoning behind this rule is that it would be “‘unrealistic to expect [a habeas petitioner] to 

prepare and file a meaningful petition on his own within the limitations period’ without 

access to his legal file.” Espinoza-Mathews v. California, 432 F.3d 1021, 1027–28 (9th 

Cir. 2005) (quoting Spitsyn, 345 F.3d at 801). However, lack of access must be absolute, 

because limited access to the prison law library is a routine part of prison life and therefore 

not “extraordinary.” Ramirez, 571 F.3d at 998 (explaining that if “common day-to-day 

security restrictions in prison” justified equitable tolling, the exception would “swallow the 

rule”).

Petitioner has failed to demonstrate that he was denied all access to his legal 

materials during the time he was in administrative segregation. Being placed in 

administrative segregation does not in and of itself justify equitable tolling, because 

placement in administrative segregation does not prove that Petitioner was denied all 

access to his legal materials. See Ramirez, 571 F.3d at 998 (holding that the petitioner was 

not entitled to equitable tolling for the time he remained in administrative segregation 

because he continued to have limited access to the law library). Therefore, Petitioner’s 

claims that he was placed in administrative segregation, without evidence that he was 
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actively denied access to his personal legal materials, does not justify equitable tolling. 

Though Petitioner has repeatedly stated that he was denied access to his legal 

materials, Petitioner only offers one concrete example of a time in 2014 where Petitioner 

requested access to his legal materials and was denied. (Pet’r Decl. ¶ 9(v), 13(a).) In 

Espinoza-Matthews, the Ninth Circuit granted equitable tolling to a petitioner who was 

able to demonstrate that he had repeatedly inquired about his property and was denied 

access by prison officials. 432 F.3d at 1027–28. In contrast, Petitioner references one 

time in 2014 where he filed an internal administrative complaint inquiring into the 

whereabouts of his lost personal legal materials. (Pet’r Decl. ¶ 9(v), 13(a).) This one 

complaint is insufficient evidence of diligence, especially because the inquiry occurred six 

years past the expiration of the AEDPA deadline. (See id.); Gibbs, 767 F.3d at 884–85; 

Ferguson, 321 F.3d at 823 (holding that AEDPA does not permit reinitiation of the 

limitations period). Petitioner’s one filing in 2014 fails to demonstrate that he was 

sufficiently diligent after the expiration of AEDPA deadline and fails to support any claim 

that Petitioner was diligent prior to the expiration of the AEDPA deadline on September 

18, 2008. 

Regardless, even if equitable tolling were warranted for the period of time in which 

Petitioner was placed in administrative segregation, Petitioner’s federal habeas petition 

would still be untimely. According to Petitioner’s declaration, he was placed in

administrative segregation for forty-one days, July 23, 2008, to September 2, 2008. (Pet’r 

Decl. ¶ 9(b).) If Petitioner were granted forty-one days of equitable tolling, his new 

AEDPA deadline would be October 29, 2008. See Espinoza-Matthews, 432 F.3d at 1027–

28 (granting equitable tolling for the number of days the petitioner was denied access to 

his personal legal materials while in administrative segregation). Even with this new 

deadline, the petition would still be untimely because the Petitioner was next placed in 

administrative segregation from February 15, 2010, to May 30, 2010, over a year after the 

October 29, 2008, deadline. (See Pet’r Decl. ¶ 9(e)); Ferguson, 321 F.3d at 823.
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Because Petitioner has failed to demonstrate that he was denied access to his 

personal legal materials and was diligent in attempting to access his legal materials, 

Petitioner’s claims that he lacked access to his legal materials as a result of movement 

between facilities and administrative segregation are insufficient to warrant equitable 

tolling. 

4. Mental Health Impairment

Petitioner argues that he is entitled to equitable tolling because he experienced 

mental health crises and suicidal episodes that impaired his ability to timely file his federal 

habeas petition. (Opp’n Mot. Dismiss at 12–13.) However, under Ninth Circuit precedent, 

Petitioner’s mental health issues do not amount to the level of impairment required to 

justify equitable tolling.

Mental incompetency is an extraordinary circumstance beyond the prisoner’s 

control. Calderon v. United States, 163 F.3d 530, 541 (9th Cir. 1998), rev’d on other 

grounds by Woodford v. Garceau, 538 U.S. 202 (2003); see also Laws v. Lamarque, 351 

F.3d 919, 923 (2003) (holding that mental incompetency justifies equitable tolling). 

Because competency standards vary “in relation to the task the defendant is expected to 

perform,” competency in an AEDPA equitable tolling case must be determined by a 

petitioner’s ability to comply with the AEDPA deadline. Bills, 628 F.3d at 1099–100. 

Equitable tolling due to mental impairment is permissible if: (1) A petitioner can show that 

his mental impairment was an “‘extraordinary circumstance’ beyond his control . . . by 

demonstrating the impairment was so severe that either (a) [the] petitioner was unable 

rationally or factually to personally understand the need to timely file, or (b) [the]

petitioner’s mental state rendered him unable personally to prepare a habeas petition . . . ;”

and (2) the petitioner was diligent in pursuing his claims. Id. (quoting Holland, 560 U.S. at 

649). The Court must also consider whether a petitioner’s mental health impairment 

prevented him from diligently seeking assistance. Id. at 1101. 

Petitioner’s claim of mental impairment fails to meet the first prong of the Bills test 

because Petitioner has failed to show that his mental impairment was sufficiently severe to 
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render him unable to understand the need to timely file, or that his mental impairment 

made timely filing impossible. (See Opp’n Mot. Dismiss at 12–13); Bills, 628 F.3d at 

1099–100. Petitioner claims that his thinking was “clouded” by his depression, which 

made it “difficult to focus on pursuing his legal challenge,” and that he attempted to 

commit suicide in 2015 and 2016. (Opp’n Mot. Dismiss at 12–13; see Pet’r Decl. ¶ 9(a).)

However, Petitioner does not claim that he was unable to understand the need to file a 

timely petition and has not explained why his depression was an extraordinary 

circumstance that prevented him from filing a timely petition. (See Opp’n Mot. Dismiss at 

12–13.) His medical records indicate that though he was diagnosed with major depressive 

disorder, throughout this time his cognition remained within “normal limits” and his 

thinking remained “linear” and “logical.” (Reply to Opp’n Mot. Dismiss Ex. 1 at 

AGO021–48.) Based on his undisputed medical records, Petitioner’s mental impairment 

was not sufficiently severe and therefore fails the first prong of the Bills test. Cf. Forbess 

v. Franke, 749 F.3d 837, 840–41 (9th Cir. 2014) (finding that petitioner’s mental 

impairment was sufficiently severe because his delusions that he was an undercover FBI 

agent and that his trial was a “sham” rendered him incapable of understanding the need to 

file a timely petition). 

Petitioner also fails to meet the second prong of the Bills test because he has not 

shown that he was diligent in preparing his federal habeas petition during the relevant time 

period or that his mental impairment was the “but-for” cause of any delay. See Bills, 628 

F.3d at 1100 (“Thus, 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.”); (Opp’n 

Mot. Dismiss at 12–13.) Though Petitioner’s suicide attempts in 2015 and 2016, (Pet’r 

Decl. ¶¶ 13(a)–13(ee)), may have been sufficiently severe as to hinder his ability to file a 

federal habeas petition in a timely manner, Petitioner has not met the burden of 

demonstrating that for the duration of the relevant time period he experienced mental 

health impairments that inhibited him from making a timely filing. Petitioner is not 
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entitled to equitable tolling for mental health impairments that occurred six and a half 

years after the AEDPA deadline had passed. See Gibbs, 767 F.3d at 884–85. 

Petitioner is therefore not entitled to equitable tolling on the ground of mental 

impairment because his mental impairment does not amount to incompetence for purposes 

of adhering to the AEDPA filing deadline. 

5. Diligence 

Petitioner claims that he has been diligent in pursuing his rights, as evidenced by 

the briefs he filed in the California Supreme Court in 2009 and 2011, and the eight state 

habeas petitions he filed in the California Supreme Court and the Santa Clara County 

Superior Court after he received the denial of his first state habeas petition in 2014.

(Opp’n Mot. Dismiss at 7; First Am. Pet. Ex. H, J1, J2, L1, L2, N.)

Though Petitioner’s filings demonstrate some diligence, they are insufficient to 

account for the amount of time necessary to make Petitioner’s filing timely. See Gibbs, 

767 F.3d at 884–85 (explaining that a petitioner requesting equitable tolling must account 

for time prior to the expiration of the AEDPA deadline). The brief Petitioner filed in 

2009—his first filing after his first state habeas petition was denied—was after the 

AEDPA deadline had already passed, and therefore did not reinitiate the limitations period. 

See Ferguson, 321 F.3d at 823; (Opp’n Mot. Dismiss at footnote 1). As previously

addressed, Petitioner was the sole individual responsible for receiving the superior court’s 

denial of his habeas petition, and it is unclear why he was not made aware of the denial 

prior to 2014. (Pet’r Decl. ¶ 5.) The absence of an explanation significantly weakens

Petitioner’s argument that he was diligent in his efforts to file a timely petition, because it 

appears that Petitioner failed to exercise diligence in remaining informed about the status 

of his state habeas petition. Further, Petitioner’s ten-year delay in filing his federal habeas 

petition connotes a lack of diligence on Petitioner’s part. See Torres, 662 F. Supp. at 

1160–61 (expressing skepticism that petitioner was diligent in obtaining Spanish-language 

legal materials or translation services given the eleven-year delay in filing his federal 

habeas petition).
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6. Holistic Review 

Finally, Petitioner argues that the combination of the circumstances addressed 

above entitle him to equitable tolling. (Opp’n Mot. Dismiss at 7.) Petitioners may be 

entitled to equitable tolling if multiple circumstances “together made a timely filing 

impossible.” Ramirez, 571 F.3d at 1000. However, Petitioner has failed to meet the 

diligence prong for every claim, has failed to account for the relevant time period before 

the expiration of the AEDPA deadline (September 2007 to September 2008), and has 

failed to explain how all the circumstances alleged worked together to make a timely filing 

impossible. (See generally Opp’n Mot. Dismiss.)

Petitioner was the sole individual responsible for diligently pursuing his claims, and 

he has failed to offer sufficient evidence pointing to specific instances where he was 

actively pursuing his claims and was denied access to Spanish-language legal materials 

and his own legal materials despite his attempts to access those materials. (See Pet’r Decl. 

¶¶ 9(a)–(w), 11(a)–(c), 13(a)–(ee).) Petitioner’s most convincing evidence—his 2009 and 

2011 filings, his state-post-conviction petitions between 2014 and 2015, and his 2014

request to access his lost legal file—all occurred after the passage of the AEDPA filing 

deadline. (See Pet’r Decl. ¶ 9(v); First Am. Pet. Ex. H, J1, J2, L1, L2, N; Opp’n Mot. 

Dismiss at footnote 1.) As previously discussed, incidents occurring after the passage of 

the AEDPA deadline are irrelevant unless the time prior to the passage of the deadline is 

accounted for. See Gibbs, 767 F.3d at 884–85. Here, the prior passage of time is not 

accounted for. 

In the absence of sufficient diligence and an explanation of why and how the 

combination of circumstances made timely filing impossible, Petitioner’s circumstances do 

not justify equitable tolling even when considered holistically.