                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


KLEE CHRISTOPHER ORTHEL,                   No. 12-17165
             Petitioner-Appellant,
                                             D.C. No.
                 v.                      3:10-cv-03612-SI

JAMES A. YATES, Warden,
             Respondent-Appellee.           OPINION


      Appeal from the United States District Court
         for the Northern District of California
    Susan Y. Illston, Senior District Judge, Presiding

                 Argued and Submitted
       June 17, 2015—San Francisco, California

                   Filed July 28, 2015

   Before: Michael Daly Hawkins, N. Randy Smith,
      and Jacqueline H. Nguyen, Circuit Judges.

               Opinion by Judge Hawkins
2                        ORTHEL V. YATES

                           SUMMARY*


                          Habeas Corpus

   The panel affirmed the district court’s order dismissing
California state prisoner Klee Christopher Orthel’s habeas
corpus petition as untimely.

    The panel held that the district court did not clearly err in
finding that Orthel possessed sufficient mental competence to
understand the need to timely file a petition and to personally
prepare and effectuate a filing, and that the district court
therefore did not err in determining that Orthel did not
establish an exceptional circumstance that would warrant
equitable tolling of AEDPA’s one-year statute of limitations.
The panel also held that the district court did not abuse its
discretion in deciding not to hold an evidentiary hearing. The
panel rejected Orthel’s contention that a petitioner is entitled
as a matter of law to an evidentiary hearing upon making a
prima facie showing that would, if true, entitle him to
equitable tolling.


                            COUNSEL

Noel J. Francisco, James M. Burnham (argued), Sarah A.
Hunger and Matthew R. McGuire, Jones Day, Washington,
D.C., Pro Bono Counsel for Petitioner-Appellant.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     ORTHEL V. YATES                         3

Kamala D. Harris, Attorney General of California, Gerald A.
Engler, Senior Assistant Attorney General, Peggy S. Ruffra
(argued), Supervising Deputy Attorney General, San
Francisco, California, for Respondent-Appellee.


                         OPINION

HAWKINS, Circuit Judge:

    Petitioner-Appellant Klee Christopher Orthel (“Orthel”)
appeals an order of the district court granting Respondent-
Appellee Warden James A. Yates’s (“the State”) motion to
dismiss as untimely Orthel’s habeas petition. Orthel argues
he is entitled to equitable tolling of the Antiterrorism and
Effective Death Penalty Act’s (“AEDPA”) one-year statute of
limitations due to mental incompetence. We affirm.

  FACTUAL AND PROCEDURAL BACKGROUND

    In 1995, Orthel was convicted of first-degree murder and
use of a firearm in violation of California Penal Code § 187.
The trial court sentenced Orthel to twenty-nine years to life
in prison, and Orthel appealed. The California Court of
Appeal affirmed the conviction in 1998, and the California
Supreme Court denied review later that year.

    Orthel sought no further relief until he filed a federal
habeas petition on August 17, 2010, in which he raised a
single claim of instructional error. The State moved to
dismiss the petition as untimely, citing the one-year AEDPA
bar, 28 U.S.C. § 2244(d). Orthel opposed, arguing he was
entitled to equitable tolling of the one-year bar due to mental
incompetence. In support of his opposition, Orthel submitted
4                      ORTHEL V. YATES

one nine-page document showing that Orthel had previously
been involuntarily medicated. After reviewing that evidence,
the district court denied the State’s motion to dismiss.
However, the district court also directed that Orthel provide
a complete copy of his mental health records to the State.
After obtaining Orthel’s mental health records, the State filed
a renewed motion to dismiss and lodged Orthel’s entire
2,266-page medical record with the court.

    After reviewing Orthel’s medical records, the district
court dismissed the petition as untimely, finding that Orthel
did not show an extraordinary circumstance or diligence as
required for equitable tolling. Specifically, the court found
“Petitioner’s medical records establish that he was a
sufficiently competent and capable individual to manage his
own affairs from June 1998 through 2005,” and “Petitioner’s
medical records during the relevant times show an eight year
period, starting in June 1998 and ending in 2006, when
petitioner was largely stable.” Orthel did not request an
evidentiary hearing, nor did the district court order one sua
sponte.

    Orthel timely appealed the district court’s order, but his
counsel failed to appear at oral argument in October 2013.
We subsequently ordered termination of Orthel’s counsel,
appointed pro bono counsel, and set a schedule for
replacement briefing. On appeal, we consider two questions:
(1) whether the district court erred in determining that Orthel
is not entitled to equitable tolling; and (2) whether the district
                          ORTHEL V. YATES                                 5

court was obligated to order an evidentiary hearing to
evaluate Orthel’s claim.1

      JURISDICTION AND STANDARD OF REVIEW

    This Court has jurisdiction pursuant to 28 U.S.C.§ 2253.
We review de novo a district court’s dismissal of a petition
for habeas corpus as untimely under AEDPA’s statute of
limitations. Summers v. Schriro, 481 F.3d 710, 712 (9th Cir.
2007). We review the district court’s factual findings
pertaining to competency for clear error. Bills v. Clark,
628 F.3d 1092, 1096 (9th Cir. 2010). A district court’s
decision to grant an evidentiary hearing to review the factual
basis of an equitable tolling argument is reviewed for abuse
of discretion. Roberts v. Marshall, 627 F.3d 768, 773 (9th
Cir. 2010).

                             ANALYSIS

I. Equitable Tolling for Mental Incompetence

    A habeas petitioner is entitled to equitable tolling of
AEDPA’s one-year statute of limitations if diligent pursuit of
rights and extraordinary circumstances standing in the way of
a timely filing can be shown. Bills, 628 F.3d at 1096 (quoting
Holland v. Florida, 560 U.S. 631, 649 (2010)). A petitioner
seeking equitable tolling on the grounds of mental
incompetence must show extraordinary circumstances, such
as an inability to rationally or factually personally understand
the need to timely file, or a mental state rendering an inability


  1
   The district court granted a Certificate of Appealability as to the first
question, and we expand the Certificate of Appealability to include the
second. 9th Cir. R. 22-1(e).
6                          ORTHEL V. YATES

personally to prepare a habeas petition and effectuate its
filing. Id. at 1099–1100; see also id. at n.2 (emphasizing the
disjunctive nature of test).

    “[T]he petitioner must [also] 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.” Id. at 1100.
Orthel argues that he satisfied Bills because he was unable to
understand the need to timely file and acted diligently given
the effect of the mental impairment on his capacity to
understand that need.

    The district court did not clearly err in finding that Orthel
possessed sufficient mental competence to understand the
need to timely file a petition and to personally prepare and
effectuate a filing. Although Orthel grappled periodically
with significant mental health issues during his incarceration,
the voluminous medical and prison records show it was not
unreasonable for the district court to determine that Orthel
was capable of understanding the need to timely file and
effectuating a filing.2 See Anderson v. City of Bessemer, 470
U.S. 564, 574 (1985) (“Where there are two permissible
views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.”) (citations omitted).



 2
   Orthel’s contention that the district court erred in failing to consider the
entire record is unfounded. The court discussed a wide range of evidence
spanning 1997 to 2006 that included psychiatric observations, medication
history, and prison programming participation. Furthermore, the district
court denied the State’s initial motion to dismiss so that the parties could
review the extensive medical records, which were filed with the court.
                          ORTHEL V. YATES                                  7

     Substantial evidence shows that Orthel possessed
sufficient competence and capability in the year following the
date on which the state court judgment became final (July
1998 to July 1999). In late June 1998, Orthel was described
as “fully alert and oriented” with “fairly good” insight and
judgment regarding his illness. On October 6, 1998, he was
described as responsive, clear, coherent, and high
functioning. On November 6, 1998, “his thought . . . process
was primarily clear, rational, and organized.” Thus, even if
we were to limit our inquiry to the year in which Orthel was
required to file a petition under AEDPA, the district court’s
findings were not clearly erroneous. Furthermore, the entire
eleven-year period (between the date on which the statute of
limitations began to run and the date on which Orthel filed his
petition) contained significant spans of time in which Orthel
participated productively in correspondence courses, college-
level classes, and prison programming that required
substantial mental competence.3 Thus, the district court did
not err in determining that Orthel did not establish an
exceptional circumstance that would warrant equitable
tolling.




  3
     Given that we affirm the district court’s “competency” finding, we
need not determine whether Orthel showed diligence. See Bills, 628 F.3d
at 1099–1100 (petitioner must satisfy “two-part test”). Yet, we could also
affirm based on Orthel’s failure to make such a showing before the district
court, despite having the burden to do so. Rasberry v. Garcia, 448 F.3d
1150, 1153 (9th Cir. 2006). In addition, Orthel is unable to satisfy this
prong because he cannot establish that his incompetence made it
“impossible to meet the filing deadline under the totality of the
circumstances, including reasonably available access to assistance.” Bills,
628 F.3d at 1100. Orthel’s participation in litigation in 2001 indicates that
counsel may have been reasonably available.
8                     ORTHEL V. YATES

II. 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.” Roberts,
627 F.3d at 773. Applying Roberts, the district court did not
abuse its discretion in deciding not to hold an evidentiary
hearing.

     When the district court was presented with the State’s
initial motion to dismiss, the record had not yet been amply
developed as required by Roberts. Recognizing the
deficiency in the record, the district court requested
supplemental briefing, held a hearing on the motion, and
ultimately denied the motion to dismiss. The court then
directed Orthel to provide the State with a complete copy of
his medical and prison records, which the State subsequently
lodged with the court. At that point, the court had before it
more than 2000 pages of medical and prison records that very
strongly confirmed that—despite fluctuations in his mental
health—Orthel possessed sufficient competence during much
of the eleven-year span to understand the need to file and
effectuate a filing. Only after reviewing the entirety of
Orthel’s records did the district court grant the State’s
renewed motion to dismiss. The district court’s actions
demonstrated sensitivity to the obligation to ensure that the
record is amply developed, pursuant to Roberts, and to make
a determination based on the “totality of the circumstances,”
as required by Bills.
                          ORTHEL V. YATES                                9

     Orthel contends that two other decisions from our court
establish a rule that a petitioner is entitled as a matter of law
to an evidentiary hearing upon making a prima facie showing
that would, if true, entitle him to equitable tolling. See Roy
v. Lampert, 465 F.3d 964 (9th Cir. 2006); Laws v. Lamarque,
351 F.3d 919 (9th Cir. 2003).4 Not so. Laws and Roy provide
a more nuanced rule that further factual development may be
required when a petitioner makes a good-faith allegation that
tolling is warranted, depending on the sufficiency of the
record that was before the district court. The two cases
contain seemingly broad mandatory language, but their
holdings and reasoning are fact-bound.

    Accordingly, we stated in Roy that a “habeas petitioner
like Roy . . . should receive an evidentiary hearing when he
makes ‘a good-faith allegation that would, if true, entitle him
to equitable tolling,’” 465 F.3d at 969 (quoting Laws, 351
F.3d at 919), but justified the disposition based on the
record’s conflicting affidavits, id. at 975. Similarly, in Laws
we granted remand for further factual development “because
Laws has made a good-faith allegation that would, if true,
entitle him to equitable tolling,” but narrowly justified the
decision on the basis that the “record in this case is patently
inadequate . . . to allow us or any other court to evaluate the
strength of Laws’s claim.” 351 F.3d at 921, 924. In both
cases, the operative language discusses a particular petitioner
(rather than stating broad rules applying to all courts and all


  4
    Decided several days prior to Roberts, our decision in Bills did not
establish a standard for when a district court must hold an evidentiary
hearing or further develop the record for the purpose of assessing a claim
for equitable tolling, nor was the appeal decided on this basis. See Bills,
628 F.3d at 1095 (9th Cir. 2010) (noting district court held evidentiary
hearing and remanding for proper application of test for competency).
10                    ORTHEL V. YATES

petitioners) and then elaborates the fact-specific rationale for
the disposition.

    Roberts harmonizes these cases by comparing factual
contexts and providing a broad holding that when the record
“is amply developed” and does not indicate the mental
incompetence caused the untimely filing, a district court need
not hold evidentiary hearings to further develop the factual
record. 627 F.3d at 773. Thus, Roberts provides a recent
refinement of the parameters that guide when a district court
should hold an evidentiary hearing to evaluate the merits of
an argument for equitable tolling.

    We decline Orthel’s suggestion that we adopt a simple
mandatory test requiring an evidentiary hearing whenever a
petitioner makes a non-frivolous showing. Here, unlike in
Laws and Roy, the district court had an amply developed
record full of relevant evidence allowing a well-supported
ruling concerning Orthel’s mental competence. Orthel did
not request a hearing to further develop the record, and the
court did not err in determining that it did not need to do so
sua sponte.

                       CONCLUSION

    We affirm the dismissal of Orthel’s petition as untimely.
There was no error in determining that Orthel did not
establish that he could not understand the need to file a timely
petition or effectuate a filing. Nor did the district court abuse
its discretion in reaching a decision absent an evidentiary
hearing.

     AFFIRMED.
