                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 06 2010

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




                            FOR THE NINTH CIRCUIT



FREDERICK GATLIN,                                 No. 09-15494

               Petitioner - Appellant,            DC No. CV 07-3696 CW

  v.
                                                  MEMORANDUM *
JAMES E. TILTON,

               Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Northern District of California
                     Claudia Wilken, District Judge, Presiding

                        Argued and Submitted April 15, 2010
                             San Francisco, California

Before:        KLEINFELD, TASHIMA, and THOMAS, Circuit Judges.

       Petitioner Frederick Gatlin appeals the district court’s order dismissing his

petition for writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. §§

1291 and 2253. We vacate the district court’s order and remand for further

proceedings.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
      Gatlin contends that the district court erred when it failed to grant him an

evidentiary hearing on the issue of equitable tolling. We review the district court’s

dismissal of Gatlin’s habeas petition on untimeliness grounds de novo and its

denial of Gatlin’s request for an evidentiary hearing for abuse of discretion. See

Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003).

      To be entitled to an evidentiary hearing, Gatlin was required to make an

initial showing that he suffered from a mental illness severe enough to warrant

equitable tolling. See id. at 922-24. The medical records Gatlin presented to the

district court made a colorable showing that he suffered from a serious mental

illness for at least a substantial portion of the five-year period at issue. At other

times, Gatlin’s mental health appears to have been successfully managed by his

medications. Because Gatlin proceeded before the district court pro se, however,

the record contains only a limited and sporadic collection of his medical records. It

is therefore difficult to gain a complete understanding of Gatlin’s mental health

over the course of his incarceration.

      Out of an abundance of caution, we vacate the district court’s order

dismissing Gatlin’s habeas petition and remand for further proceedings.

Respondent represented at oral argument that it was in possession of the entirety of

Gatlin’s prison medical records. Neither we nor the district court have had the


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opportunity to read these records in order to decide whether he is entitled to an

evidentiary hearing. On remand, the district court should examine those records to

determine the extent of Gatlin’s mental incapacity during the relevant five-year

period. If those medical records suggest that Gatlin’s mental illness affected his

ability to file a habeas petition during the entire relevant period of his

incarceration, an evidentiary hearing will be warranted.

      VACATED and REMANDED.




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