IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

CHRISTOPHER LEE BARNES, 

Petitioner, Civ. No. 2:15-cv-00366-MC 

v. OPINION AND ORDER 

MARKNOOTH, 

Respondent. 

MCSHANE, Judge: 

Petitioner brings this petition for writ of habeas corpus under 28 U.S.C. § 2554 alleging 

ineffective assistance of counsel. Respondent argues that the petition is barred by the statute of 

limitations and must be denied. The Court agrees. 

BACKGROUND 

On February 11, 2010, petitioner, who has mental impairments and a low IQ, pled guilty 

to one count of Rape in the First Degree and one count of Attempted Sodomy in the First 

Degree. Petitioner did not directly appeal his conviction, and it became final on March 15, 2010. 1 

In March 2010, petitioner was moved from Oregon Department of Corrections' (ODOC) 

intake facility to Two Rivers Correctional Institution (TRCI).While at TRCI, petitioner "sought 

1 Respondents allege that petitioner's conviction was final on March 13, 2010; however, this 

two-day difference has no bearing on the outcome of the case. 

1 - OPINION AND ORDER 
information about his criminal case but was told that he had to have a pending case in order to 

have access to legal resources and property." Pet.' s Brief at 3. 

In October 2010, petitioner was moved to Snake River Correctional Institution (SRCI) 

and placed in various types ofrestrictive housing. In October 2011, petitioner was moved to the 

Inmate Management Unit (IMU) and given access to a telephone. Petitioner then called his trial 

attorney to request his case file and his Clackamas County case number. Around this time, 

petitioner also contacted the Clackamas County court to obtain his trial transcripts. 

In January 2012, petitioner received his case file, and on September 7, 2012, petitioner 

filed a state post-conviction relief (PCR) petition pro se alleging ineffective assistance of council 

and stating that his petition should be deemed timely due to his mental incapacity and lack of 

access to legal materials. In February 2013, petitioner's state PCR petition was ultimately denied 

as untimely. See Or. Rev. Stat.§ 138.510(3). 

While his PCR petition was pending, petitioner also filed several prose lawsuits in 

federal court. Petitioner filed at least seven lawsuits in 2013, including suits alleging that a court 

clerk incorrectly provided records to petitioner on a computer disk; his trial attorney rendered 

ineffective assistance of counsel; a representative of the Oregon State Bar failed to investigate 

his trial attorney's conflict of interest; and an examining physician falsified reports. 

Petitioner appealed the denial of his state PCR petition in March 2013, and while that 

appeal was pending, he attempted to file two federal habeas petitions with this Court. These 

petitions were denied because petitioner's state appeal was still pending. During this time, 

petitioner also filed a second state PCR petition, which was dismissed. In March 2015, 

petitioner's appeal of the denial of his first PCR petition was affirmed without opinion, after 

which he filed the instant habeas petition. 

2 - OPINION AND ORDER 
DISCUSSION 

Pursuant to 28 U.S.C. § 2244(d), "[a] 1-year period oflimitation shall apply to an 

application for a writ of habeas corpus by a person in custody pursuant to a judgment of a State 

court." This period begins to 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." 28 U.S.C. § 

2244( d)(l )(A). 

Here, petitioner's state court judgment became final on March 15, 2010, and the one year 

statute of limitations to file a federal habeas petition ended in March 2011. Petitioner did not file 

the instant habeas petition until February 19, 2015, and respondent argues that it is time-barred. 

While respondent concedes that a properly-filed state PCR petition can toll the federal statute of 

limitations, petitioner did not file his PCR petition until September 2011, well beyond the oneyear limitations period. 

Petitioner does not dispute this argument. Instead, petitioner asserts that the AEDPA 

statute of limitations should be equitably tolled because (1) his mental impairments rendered him 

unable to file on time, and (2) he was unable to contact his trial attorney or access his legal 

materials. 

For equitable tolling to apply under the AEDP A, petitioner must show "(1) that he has 

been pursing his rights diligently, and (2) that some extraordinary circumstance stood in his way 

and prevented untimely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (internal 

quotations omitted). The threshold for the application of equitable tolling is "very high" and it is 

"unavailable in most cases." Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (citations 

omitted). 

3 - OPINION AND ORDER 
Petitioner first asserts that his mental impairments rendered him unable to file his federal 

habeas petition within the statute of limitations. To establish equitable tolling due to mental 

impairment petitioner must show that: (1) his mental impairment was so severe that he "was 

unable rationally or factually to personally understand the need to timely file, or ... [his] mental 

state rendered him unable personally to prepare a habeas petition and effectuate its filing;" and 

(2) he diligently "pursu[ ed] [his] 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." Bills v. Clark, 628 F.3d 1092, 1099-1100 (9th Cir. 2010) (citations omitted). 

It is undisputed that petitioner suffers from mental impairments; however, petitioner has 

not demonstrated that these impairments made him unable to understand the need to timely file 

or to prepare and file a habeas petition. Beginning in September 2012, petitioner was able to 

prepare and file two pro se PCR petitions, at least one with briefing, two federal habeas petitions, 

and several pro se lawsuits during the time his appeal of the PCR petition denial was pending. 

Petitioner does not explain why his mental incapacity rendered him unable to file a petition 

between March 2010 and March 2011, the relevant limitations period, when it did not create any 

impediment to his later filings. Petitioner provides no evidence or argument showing that his 

mental condition improved significantly after the limitations period ended. The record indicates 

that petitioner was able to prepare and file a habeas petition within the statute of limitations. See 

Sanford v. Soto, 617 Fed. Appx. 767, 768 (9th Cir. 2015) (stating that a petitioner's "successful 

filing of three state habeas petitions during the relevant time period demonstrates that he could 

capably effectuate the filing of a federal habeas petition"). While it might be true that petitioner 

is not legally sophisticated about the statutes of limitations at issue, lack of legal sophistication 

4 - OPINION AND ORDER 
does not constitute an extraordinary circumstance that would excuse late filing. See Johnson v. 

United States, 544 U.S. 295, 311 (2005). 

Further, petitioner has not provided an explanation for why his mental impairment would 

have made it impossible to diligently pursue his rights by contacting his attorney via mail or 

beginning to prepare his PCR petition. Moreover, once petitioner received his case file, he 

waited approximately eight months to file his PCR petition. While not alone determinative, 

"[ d]iligence after an extraordinary circumstance is lifted may be illuminating as to overall 

diligence." Gibbs v. Legrand, 767 F.3d 879, 892 (9th Cir. 2014). Because he has not established 

that he diligently pursued his rights to the extent he understood them, petitioner is not entitled to 

equitable tolling due to his mental impairment. 

Petitioner also asserts that, during the limitations period between March 2010 and March 

2011, he was prevented from accessing legal materials and was unable to obtain his case file or 

transcripts because of his placement in restrictive housing. Specifically, petitioner alleges he 

"sought information about his criminal case but was told that he had to have a pending case in 

order to have access to legal resources and property." Pet.' s Brief at 3. To warrant equitable 

tolling based on restrictive housing and the inability to access legal materials, petitioner must 

show that (I) lack of access to his files made filing impossible and (2) that he pursued his rights 

diligently. Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir. 2009). Petitioner does not make either 

showing. 

Petitioner has not alleged facts that demonstrate why his case file and transcripts were 

necessary for the preparation of his petition. Ford v. Pliler, 590 F.3d 782, 790 (9th Cir. 2009) 

(stating that an inability to access legal files does not entitle petitioner to equitable tolling when 

he knows the factual basis of his claims). In fact, petitioner avers that he notified the trial court 

5 - OPINION AND ORDER 
"that seven months into his incarceration, he came across evidence that could [and] would have 

changed the outcome of [his] sentence." Pet.'s Brief at 4, n.2. Thus, as early as October 2010, 

petitioner had at least some information forming the basis of his claim. As a result, he cannot 

establish that his inability to access to his case files made filing a timely petition impossible. 

With regard to his diligence, petitioner does not explain why he did not attempt to obtain 

his case file or transcripts by mailing a request during the period between March 2010 and March 

2011. Even if petitioner's placement in restrictive housing and his lack of telephone access were 

an extraordinary circumstance, a showing of "diligence during the existence of an extraordinary 

circumstance is the key consideration." Gibbs v. Legrand, 767 F.3d 879, 892 (9th Cir. 2014). 

Though petitioner argues that, while at TRCI between March 2010 and October 2010, he was 

told that he could not obtain his legal materials without a pending case, he does not indicate who 

told him this information, who he contacted, or whether he made attempts to contact his attorney. 

Furthermore, in his declaration, petitioner makes no allegations that his placement in SRCI from 

October 2010 to October 2011 prevented him from accessing his materials, only that he had no 

telephone access. Petitioner's passing reference to his inquiry into his legal materials is not 

enough to make a showing of diligence. See Johnson v. Yates, 443 Fed. Appx. 247, 249 (9th Cir. 

2011). 

In sum, petitioner has not shown that it was impossible to file a petition without his legal 

materials or that he diligently pursued his rights while in restrictive housing, and he is not 

entitled to equitable tolling these grounds. 

Finally, respondent argues that the claims are procedurally defaulted for lack of 

exhaustion, noting that the State denied petitioner's PCR petition on untimeliness grounds, an 

assertion that petitioner does not counter. A state habeas petitioner must exhaust all available 

6 OPINION AND ORDER 
state court remedies-either on direct appeal or through collateral proceedings-before a federal 

court may consider granting habeas corpus relief. 28 U.S.C. § 2254(b)(l)(A); see also Baldwin v. 

Reese, 541 U.S. 27, 29 (2004). To meet the exhaustion requirement, the petitioner must "fairly 

present" a federal claim to the State's highest court "in order to give the State the opportunity to 

pass upon and to correct alleged violations of its prisoners' federal rights." Duncan v. Henry, 513 

U.S. 364, 365-66 (1995) (per curiam) (quotation marks omitted).To fairly present a claim, a 

petitioner must present it "(1) to the correct forum; (2) through the proper vehicle; and (3) by 

providing the factual and legal basis for the claim." Scott v. Schriro, 567 F.3d 573, 582 (9th Cir. 

2009) (per curiam) (internal citations omitted). 

Because petitioner's PCR petition was denied as untimely, his claims were not fairly 

presented to the State's highest court. Accordingly, his claims are procedurally defaulted, further 

supporting the denial of the instant federal habeas petition. Schneider v. McDaniel, 674 F.3d 

1144, 1152-53 (9th Cir. 2012) (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)). 

CONCLUSION 

Petitioner has not established that an extraordinary circumstance prevented his timely 

filing or that he diligently pursued his rights to the extent he was able, and petitioner is not 

entitled to equitable tolling of the statute of limitations on his habeas petition. Petitioner's habeas 

petition, ECF No. 2, is therefore DENIED. A Certificate of Appealability is denied on the basis 

that petitioner has not made a substantial showing of the denial of a constitutional right pursuant 

to 28 U.S.C. § 2253(c)(2). 

7 - OPINION AND ORDER 
IT IS SO ORDERED. 

Dated this 13th day of April, 2017. 

8 - OPINION AND ORDER 

\, - l..____ 

Michael McShane 

United States District Judge