                                                                            FILED
                            NOT FOR PUBLICATION                             MAY 15 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JAMES DAVID OFELDT,                              No. 14-15911

              Petitioner - Appellant,            D.C. No. 3:10-cv-00646-LRH-
                                                 VPC
  v.

NEVADA DEPARTMENT OF                             MEMORANDUM*
CORRECTIONS, Director; NEVADA
ATTORNEY GENERAL,

              Respondents - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                             Submitted May 13, 2015**
                              San Francisco, California

Before: O’SCANNLAIN, IKUTA, and N.R. SMITH, Circuit Judges.

       Nevada state prisoner James Ofeldt appeals the district court’s dismissal of

his untimely 28 U.S.C. § 2254 habeas petition. Ofeldt argues that he was entitled


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
to equitably toll the time mandated to file his appeal, because he suffered from a

severe mental impairment. We have jurisdiction under 28 U.S.C. §§ 1291 and

2253, and we affirm the district court’s decision.

      The dismissal of a habeas petition as time-barred is reviewed de novo. Bills

v. Clark, 628 F.3d 1092, 1096 (9th Cir. 2010). “A petitioner seeking equitable

tolling bears the burden of showing both that there were extraordinary

circumstances, and that the extraordinary circumstances were the cause of his

untimeliness.” Roberts v. Marshall, 627 F.3d 768, 772 (9th Cir. 2010) (internal

quotation marks omitted). Ofeldt failed to meet this burden.

      First, Ofeldt failed to present medical evidence establishing that he suffered

from a severe mental impairment during the relevant period of time. Additionally,

Ofeldt’s frequent filings in state court belie his assertions that he was unaware of,

and unable to, pursue post-conviction relief. Between 2005 and the filing of

Ofeldt’s federal habeas petition in 2010, Ofeldt filed over fifty-five different pro se

documents including documents seeking habeas relief. See Gaston v. Palmer, 417

F.3d 1030, 1035 (9th Cir. 2005) (concluding that “[b]ecause Gaston was capable of

preparing and filing state court petitions [during the limitations period], it

appear[ed] that he was capable of preparing and filing a [federal] petition during

the [same time]” (alteration omitted)). Thus, Ofeldt failed to plead specific facts


                                            2
demonstrating he suffered from a mental illness “so severe that . . . [he was] unable

rationally or factually to personally understand the need to timely file.” Bills, 628

F.3d at 1100.

      Secondly, Ofeldt failed to plead facts demonstrating that his mental illness

“made it impossible under the totality of the circumstances to meet the filing

deadline despite [his] diligence.” Id. at 1093. Ofeldt argued his mental illness

caused his delay. However, the record indicates Ofeldt untimely filed his petition

because he was not aware of some claims he could pursue in post-conviction relief.

This lack of awareness does not entitle Ofeldt to equitable tolling. See Ford v.

Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012) (“The ‘due diligence’ clock starts

ticking when a person knows or through diligence could discover the vital facts,

regardless of when their legal significance is actually discovered.”).

      AFFIRMED.




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