                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 17 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



WAYNE E. CHICK,                                  No. 11-55612

              Petitioner - Appellant,            D.C. No. 2:10-cv-06136-DMG-
                                                 PLA
  v.

FRANK CHAVEZ, Warden,                            MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                      Dolly M. Gee, District Judge, Presiding

                        Argued and Submitted May 6, 2013
                              Pasadena, California

Before: PAEZ and IKUTA, Circuit Judges, and SEEBORG, District Judge.**

       Petitioner Wayne E. Chick appeals the district court’s decision dismissing

his habeas petition as untimely. Chick’s petition was filed after the one-year

limitations period, 28 U.S.C. § 2244(d), and the district court rejected Chick’s


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Richard Seeborg, District Judge for the U.S. District
Court for the Northern District of California, sitting by designation.
argument that he was entitled to equitable tolling. We have jurisdiction pursuant to

28 U.S.C. § 1291. We affirm in part, reverse in part and remand for further

development of the record as to Chick’s mental competency and, if necessary, an

evidentiary hearing.

      “‘[A] petitioner is entitled to equitable tolling only if he shows (1) that he

has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way and prevented timely filing.’” Ford v. Gonzalez,

683 F.3d 1230, 1237 (9th Cir.) cert. denied, 133 S.Ct. 769 (2012) (quoting

Holland v. Florida, 130 S.Ct. 2549, 2562 (2010) (internal quotation marks

omitted)). We have held “that where a habeas petitioner can show ‘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.’” Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (quoting

Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003) (emphasis in Bills)).

      Chick conceded at oral argument that he has not set forth sufficient facts to

meet his burden under Bills and is thus not entitled to equitable tolling based on the

record as it stands. Rather, Chick argues that his allegations—that he suffers from

a mental impairment and that he was deprived of legal materials while in

administrative segregation—entitle him to further development of the record.


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      1. 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. Instead, he must make only

“a good faith allegation that would, if true, entitle him to equitable tolling.” Laws,

351 F.3d at 921.

      Here, Chick alleged in his habeas petition that his “late filing of Habeas is

due to mental illness.” Additionally, at several places in his verified petition and in

subsequent filings in the district court, Chick’s jailhouse lawyer indicated that

Chick’s mental impairment rendered him incapable of timely filing a habeas

petition. Construing Chick’s petition liberally, we hold that Chick has made “a

good faith allegation that would, if true, entitle him to equitable tolling.” Laws,

351 F.3d at 921 (noting that “[w]e must construe pro se habeas filings liberally,

Maleng v. Cook, 490 U.S. 488, 493 (1989), and may treat the allegations of a

verified complaint or petition as an affidavit,” id. at 924).

      Respondent has not offered sufficient countervailing evidence to

demonstrate that Chick was mentally competent during the tolling period. See Id.

at 924 (noting that “[o]f course, a petitioner’s statement, even if sworn, need not

convince a court that equitable tolling is justified should countervailing evidence

be introduced”). The record reveals no medical evidence from the time period for


                                           -3-
which Chick seeks tolling, and the handful of documents in the record reveal only

that Chick had some degree of mental impairment but do not conclusively indicate

its severity. Thus, this case is distinguishable from Roberts v. Marshall, 627 F.3d

768 (9th Cir. 2010). In light of these circumstances, we conclude that the district

court erred in dismissing Chick’s petition without further development of the

record with respect to Chick’s alleged mental impairment.1

      2. Chick is not entitled to further factual development with respect to the

deprivation of his legal materials. Chick alleged that he was deprived of his legal

materials while housed in administrative segregation. Based on Chick’s exhibits,

the district court concluded that Chick was transferred from administrative

segregation to a new facility, “at the latest on October 22, 2008.” This factual

finding is not clearly erroneous. See Bills, 628 F.3d at 1096. It was based on the

prison Classification Service Representative’s notation that Chick’s transfer

approval expired on that date. Nor was the district court’s subsequent conclusion

that “even if petitioner had been separated from his legal materials for a period of

time when he was in [administrative segregation], after the transfer he still had



      1
         We note that the district court may expand the record pursuant to Rule 7 of
the Rules Governing Section 2254 Cases in the United States District Courts. If
after reviewing any documents submitted pursuant to Rule 7, the court determines
that an evidentiary hearing is necessary, it may hold one as allowed by Rule 8.

                                         -4-
almost the entire one-year period [from October 8, 2008 to October 7, 2009] to

pursue federal habeas relief.” Thus, since Chick would be entitled to a maximum

of fourteen days of equitable tolling based on the deprivation of his legal materials

and his petition was filed ten months beyond the statutory deadline, Chick’s

allegations regarding his legal papers, if true, would not entitle him to relief.

Therefore, the district court did not abuse its discretion in not further developing

the record as to this issue. See Laws, 351 F.3d at 921. We therefore affirm the

district court’s determination that Chick’s placement in administrative segregation

does not entitle him to equitable tolling.

      The parties shall bear their own costs on appeal.

      AFFIRMED IN PART, REVERSED IN PART AND REMANDED.




                                             -5-
