IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON

KEVIN BRADLEY ANDERSON, 

Petitioner,

v. 

MARK NOOTH,

Respondent.

Case No. 2:14-cv-01916-SB

 FINDINGS AND 

RECOMMENDATION

_____________________________________

BECKERMAN, Magistrate Judge.

Petitioner, an inmate at Snake River Correctional Institution, brings this habeas corpus

proceeding pursuant to 28 U.S.C. § 2254. For the reasons explained below, the district judge should

deny the Amended Petition for Writ of Habeas Corpus (ECF No. 28) (the “Petition”), because it is

barred by the applicable one-year statute of limitations, and no basis exists for equitable tolling.

BACKGROUND

On March 18, 2009, Petitioner pleaded guilty to Aggravated Murder. Resp’t Ex. 103 at 1. On

March 19, 2009, the trial court imposed a life sentence with no possibility of parole until Petitioner

serves a minimum of 30 years. Resp’t Ex. 101 at 2-3. The state appellate defender concluded that

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Petitioner had no colorable claims of error and did not file an appeal on Petitioner’s behalf. Pet’r’s

Br. Supp. (ECF No. 25) at 21, 22. Petitioner’s appeal deadline expired on April 19, 2009. On March

18, 2010, Petitioner timely filed a petition for state post-conviction relief (“PCR”), alleging

ineffective assistance of trial counsel. Resp’t Ex. 104.

1 On November 14, 2011, the PCR court

summarily dismissed the petition with prejudice. Resp’t Ex. 105.The Oregon Court of Appeals

affirmed without opinion, and the Oregon Supreme Court denied review. Resp’t Ex. 108; Anderson

v. Nooth, 258 Or. App. 682, rev. denied, 354 Or. 490 (2013). The appellate judgment issued on

January 7, 2014. Resp’t Ex. 108.

On or about November 26, 2014, Petitioner filed the instant proceeding, alleging that he

received ineffective assistance of trial counsel, and that his plea agreement is void under Oregon law.

Pet’r’s Am. Pet. at 3. Respondent moves this Court to deny the Petition on the basis that it is barred

by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d)(1). 

The parties agree that the one-year limitation period began to run on April 19, 2009, the date

Petitioner’s time for seeking appellate review expired. 28 U.S.C. § 2244(d)(1)(A). Between that date

and March 18, 2010 (the date on which Petitioner signed his PCR petition), 334 days accrued.Resp’t

Resp. at 2. The limitation period was statutorily tolled during the time Petitioner’s PCR petition was

pending, and began to run again when the appellate judgment issued on January7, 2014.Id.Between

that date and the date Petitioner signed the Petition in this case, 323 days accrued. Id. In sum, 657

days accrued before Petitioner filed his Petition, which exceeds the one-year limitation period. Id.

1

 For purposes of calculating the limitation period, this Court uses the date Petitioner

signed his state and federal petitions and presumably handed them to prison officials for mailing.

Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (“In determining when a pro se state or

federal petition is filed, the ‘mailbox’ rule applies.”).

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Petitioner does not contest that he filed his Petition beyond the one-year limitation period.

However, Petitioner argues that he is entitled to equitable tolling of the limitation period, and moves

the Court to schedule an evidentiaryhearing so that he may present facts relevant to equitable tolling.

DISCUSSION

I. The One-Year Statute of Limitations

Pursuant to the Antiterrorism and Effective DeathPenaltyAct(“AEDPA”), a one-year period

of limitation applies to a petition for a writ of habeas corpus filed “by a person in custody pursuant

to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). The limitation period runs from the latest

of either “the date on which the judgment became final by the conclusion of direct review or the

expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). This period is statutorily

tolled while “a properly filed application for State post-conviction or other collateral review” is

pending. 28 U.S.C. § 2244(d)(2); see also Biggs v. Duncan, 339 F.3d 1045, 1047-48 (9th Cir. 2003)

(finding that an application is pending until it has achieved final resolution through the state postconviction procedure).

II. Equitable Tolling

The limitation period for filing a petition for habeas corpus may be equitably tolled upon a

showing that the (1) petitioner was pursuing his rights diligently, and (2) some extraordinary

circumstance(s) stood in his way and prevented a timely filing. Holland v. Florida, 560 U.S. 631,

632 (2010); Doe v. Busby, 661 F.3d 1001, 1012 (9th Cir. 2011); Lakey v. Hickman, 633 F.3d 782,

786 (9th Cir. 2011). The threshold necessary to trigger equitable tolling is very high and is reserved

for rare cases. See Yeh v. Martel, 751 F.3d 1075, 1077 (9th Cir. 2014); Spitsyn v. Moore, 345 F.3d

796, 800 (9th Cir. 2003).The inquiry into “whether there are grounds for equitable tolling [is] highly

fact-dependent.” Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000). A petitioner “bears

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a heavy burden to show that [he] is entitled to equitable tolling, ‘lest the exceptions swallow the

rule.’” Rudin v. Myles, 781 F.3d 1043, 1055 (9th Cir. 2014) (quoting Bills v. Clark, 628 F.3d 1092,

1097 (9th Cir. 2010)).

Alternative to a showing of extraordinary circumstances, a petitioner’s colorable claim of

actual innocence can satisfy the requirements for equitable tolling.

2 McQuiggen v. Perkins, 133 S.

Ct. 1924 (2013); Holland, 560 U.S. at 645, 649. In order to pass through the actual innocence

“gateway” for review of otherwise time-barred claims, a petitioner must demonstrate that, in light

of all the evidence (old and new), it is more likely than not that no reasonable juror would have

found the petitioner guilty beyond a reasonable doubt. McQuiggen, 133 S. Ct. at 1928 (citing Schlup

v. Delo, 513 U.S. 298, 329 (1995)); Stewart v. Cate, 757 F.3d 929, 942 (9th Cir. 2014). A mere claim

of innocence is not enough to pass through the Schlup gateway, as a petitioner is required “to support

his allegations of constitutional error with new reliable evidence—whether it be exculpatory

scientific evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not

presented at trial.” Schlup, 513 U.S. at 324.

III. Analysis 

Petitioner argues that the limitation period should be equitably tolled because he has “mental

conditions that contributed to his failure to timely file,” his attorney misinformed him about the

filing deadline, and he is actually innocent of his crime of conviction. Pet’r’s Br. Supp. at 8; Pet’r’s

Sur-reply(ECF No. 42) at 2. For the reasons set forth below, Petitioner’s request for equitable tolling

should be denied.

2

 A habeas petitioner asserting a credible claim of actual innocence need not prove his

diligence in order to be entitled to equitable tolling, but his untimeliness does bear on the

credibility of the evidence proffered to show innocence. McQuiggen, 133 S. Ct. at 1928; Larsen

v. Soto, 742 F.3d 1083, 1092 (9th Cir. 2013). 

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A. Extraordinary Circumstances

1. Mental Impairment 

Petitioner asserts that the limitation period should be equitably tolled because he has a

mental condition that “contributed to his failure to timely file his federal habeas petition.” Pet’r’s Br.

Supp. at 8. Petitioner provides no further factual allegations or evidence detailing the nature or

severity of his mental condition. The Ninth Circuit has set forth the standard for obtaining equitable

tolling based on a mental impairment, as follows:

(1) First, a petitioner must show his mental impairment was an ‘extraordinary

circumstance’ beyond his control by demonstrating that the impairment was

so severe that either

(a) petitioner was unable rationally or factually to personally understand

the need to timely file, or

(b) petitioner’s mental state rendered him unable personally to prepare a

habeas petition 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

impossible to meet the filing deadline under the totality of the circumstances,

including reasonably available access to assistance.

Yeh, 751 F.3d at 1078 (quoting Bills, 628 F.3d at 1099-100); Forbess v. Franke, 749 F.3d 837, 840-

41 (9th Cir. 2014). The second prong does not require literal impossibility, but rather proof that the

mental impairment was “so debilitating that it is the but-for cause of the delay” in light of the totality

of the circumstances. Yeh, 751 F.3d at 1078; Forbess, 749 F.3d at 841; see also Laws v. Lamarque,

351 F.3d 919, 923 (9th Cir. 2003) (holding that where a habeas petitioner can show that “mental

incompetence in fact caused him to fail to meet the AEDPA filing deadline, his delay was caused

by an extraordinary circumstance . . . and the deadline should be equitably tolled.” (internal

quotations omitted)).

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In the instant proceeding, Petitioner has failed to identify the nature or severity of his

impairment. He has made no showing that the alleged “mental condition” rendered him unable to

understand the need to file timely, or that he was unable personally to prepare and file a habeas

petition. On the contrary, Petitioner states that he sought help from inmate legal assistants to prepare

his Petition as soon as he learned that no petition had been filed on his behalf. Pet’r’s Decl. at 2.

Further, Petitioner states that, had he not been misinformed about the filing deadline, he would have

filed the Petition on time. Id. These statements contradict Petitioner’s assertion of a mental

impairment, showing that Petitioner understood the need to file timely a habeas petition and that he

had the ability to do so. Accordingly, Petitioner has not set forth sufficient facts or evidence to

warrant equitable tolling based on a mental impairment.

Petitioner moves the Court to grant an evidentiary hearing, so that he may “testify to the facts

that establish his mental conditions that contributed to his failure to timely file.” Pet’r’s Br. Supp.

at 8. The Ninth Circuit has held 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.’” Roy v.

Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (citing Laws, 351 F.3d at 919). “A petitioner who alleges

that mental illness prevented him from timely filing may be entitled to further factual development

even if he has not met his burden to show that he is entitled to equitable tolling.” Chick v. Chavez,

518 F. App’x 567, 569 (9th Cir. 2013). In Laws, the court held that it was enough that Laws alleged

mental incompetency in a verified pleading to compel the court to allow expansion of the factual

record. 351 F.3d at 919. Similarly, in Chick, the court found that the petitioner had presented

sufficient evidence of “some degree of mental impairment” to warrant further factual development.

518 F. App’x at 569. 

///

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In the present case, however, Petitioner has presented no evidence beyond a bare allegation.

Petitioner has not submitted a verified pleading relevant to his mental condition during the

limitations period, indicated how the record is incomplete or in need of further development, or made

any good-faith factual allegation. Absent such evidence, Petitioner is not entitled to an evidentiary

hearing. See Roy, 465 F.3d at 973 (finding an evidentiaryhearingwarranted where petitioners alleged

facts showing that extraordinary circumstance, and not their lack of diligence, caused their failure

to file timely); cf. Bills, 628 F.3d at 1100 (holding that to evaluate whether tolling is warranted, the

district court must “find the petitioner has made a non-frivolous showing that he had a severe mental

impairment during the filing period that would entitle him to an evidentiary hearing”). A petitioner

who merely mentions a mental condition is not entitled to an evidentiary hearing.

2. Attorney Misconduct

Petitioner asserts that the limitation period should be equitably tolled because his PCR

appellate attorney told him he had one year after his PCR case was final to file a habeas petition, and

Petitioner believed the attorney would file the petition on his behalf. Pet’r’s Decl. at 2. Petitioner

asserts that this misinformation was an extraordinary circumstance that prevented his timely filing,

and that counsel’s behavior rose to the level of “professional misconduct.” Pet’r’s Sur-reply at 2.

However, Petitioner concedes that his PCR appellate attorney told him to contact the Federal Public

Defender’s office about filing a habeas petition and that the attorney made no indication that he

would file the petition on Petitioner’s behalf. Pet’r’s Decl. at 2. Petitioner’s assumption that his PCR

appellate attorney would file the petition was unreasonable under the circumstances. 

Further, the alleged instances of miscommunication are, at best, attorney neglect and do not

rise to the level of attorneymisconduct or abandonment for purposes of equitable tolling. See Busby,

661 F.3d at 1011-12 (articulating that equitable tolling may be warranted in instances of

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unprofessional attorney behavior, but not “for a garden variety claim of excusable attorney neglect

or mistake”) (citing Spitsyn, 345 F.3d at 800-02). Petitioner’s attorney advised Petitioner to seek

counsel elsewhere to file his habeas petition, indicating that his representation had concluded. Even

if Petitioner’s attorneymiscalculated Petitioner’s limitation period, the Supreme Court has held that

an attorney’s miscalculation in determining a filing deadline is insufficient to warrant equitable

tolling. Holland, 560 U.S. at 651-52; Lawrence v. Florida, 549 U.S. 327, 336 (2007) (holding that

attorney miscalculation is not sufficient to warrant equitable tolling).

B. Lack of Diligence

Even if extraordinary circumstances existed here, Petitioner has failed to demonstrate that

he diligently pursued his right to file a habeas petition. Habeas petitioners are required to show

diligence in order to “ensure that the extraordinary circumstances faced by petitioners . . . and not

their lack of diligence were the cause of the tardiness.” Roy, 465 F.3d at 973. The equitable tolling

standard for diligence is “reasonable diligence,” not “maximum feasible diligence.” Holland, 560

U.S. at 654; Busby, 661 F.3d at 1016; see also Gibbs v. Legrand, 767 F.3d 879, 890 (9th Cir. 2014),

cert. denied, 135 S. Ct. 1708 (2015) (holding that reasonable diligence for the purposes of equitable

tolling “requires the effort that a reasonable person might be expected to deliver under his or her

particular circumstances” (internal quotations and citations omitted)). 

The Ninth Circuit has recognized certain affirmative actions, undertaken in a timelymanner,

as establishing reasonable diligence, both before and after extraordinarycircumstances arise. See Fue

v. Biter, 810 F.3d 1114, 1118 (9th Cir.), reh’g en banc granted, --- F.3d ---, 2016 WL 4136976

(2016). For example, a petitioner who writes numerous letters to his attorney, contacts others

associated with the courts, and files a pro se petition immediately after learning the limitation period

expired has demonstrated diligence. See Holland, 560 U.S. at 654. If the petitioner does not

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demonstrate reasonable diligence in attempting to file under the circumstances, “the link of causation

between the extraordinary circumstances and the failure to file is broken.” Roy, 465 F.3d at 973

(quoting Spitsyn, 345 F.3d at 799 (internal quotations omitted)). 

In the instant proceeding, Petitioner has failed to show that he pursued his rights with

diligence. Petitioner reports that he filed his Petition as soon as he found out his attorney had not

filed on his behalf, and asserts that this fact establishes his diligence. Pet’r’s Sur-replyat 2. However,

Petitioner fails to show that he made any inquiries about the status or progress of his filing, or how

and when he “learned that no petition had been filed.” Pet’r’s Decl. at 2. Petitioner also fails to

present any evidence of circumstances that prevented him from knowing or learning his statutory

filing date, or any evidence that he ever contacted the Federal Public Defender’s Office (per the

advice of his attorney).

C. Actual Innocence

Finally, Petitioner seeks equitable tolling on the basis of his actual innocence. Petitioner

“maintains that he is actually innocent of the aggravated murder; specifically the agreement to

commit the murder for monetary gain.” Pet’r’s Br. Supp. 8. However, Petitioner offers no evidence

to support his claim of actual innocence, and instead moves the Court to grant an evidentiary hearing

so that he can “testify regarding the facts that demonstrate his actual innocence.” Id. Again, such a

hearing is warranted only where a petitioner “makes ‘a good-faith allegation that would, if true,

entitle him to equitable tolling.’” Roy, 465 F.3d at 969 (citing Laws, 351 F.3d at 919). In view of the

fact that Petitioner has failed to present any theory or evidence (new or otherwise) to support his

claim of actual innocence, Petitioner’s request for an evidentiary hearing should be denied. See

Johnson v. Singh, 542 F. App’x 615, 616 (9th Cir. 2013) (upholding the denial of an evidentiary

hearing when petitioner “failed to show that such a hearing would produce evidence establishing

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actual innocence”) (citing Griffin v. Johnson, 350 F.3d 956, 966 (9th Cir. 2003)); see also Gandarela

v. Johnson, 286 F.3d 1080, 1087 (9th Cir. 2002) (finding an evidentiary hearing unnecessary where

petitioner “failed to show what an evidentiary hearing might reveal of material import on his

assertion of actual innocence”).

CONCLUSION

Based on the foregoing, this Court recommends that the district judge deny Petitioner’s

Amended Habeas Petition (ECF No. 28) on the basis that it is untimely, and dismiss this proceeding

with prejudice. A Certificate of Appealability should be denied because reasonable jurists could not

debate the correctness of this procedural ruling. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529

U.S. 473, 484 (2000). 

SCHEDULING ORDER

The Findings and Recommendation will be referred to a district judge. Objections, if any, are

due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed,

the Findings and Recommendation will go under advisement on that date. If objections are filed, a

response is due fourteen (14) days after being served with a copy of the objections. When the

response is due or filed, whichever date is earlier, the Findings and Recommendation will go under

advisement. 

DATED this 12th day of August, 2016. 

_____________________________

STACIE F. BECKERMAN

United States Magistrate Judge

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