                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 18 2014

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



                            FOR THE NINTH CIRCUIT


JIMMY LEE BILLS,                                 No. 12-17827

             Petitioner - Appellant,             D.C. No. 2:06-cv-02223-MCE-
                                                 GGH
  v.

KEN CLARK, Warden,                               MEMORANDUM *

             Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of California
                  Morrison C. England, District Judge, Presiding

                           Submitted January 27, 2014**

Before: HAWKINS and FISHER, Circuit Judges, and TYMKOVICH, Circuit
Judge.***




       *
             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).
       ***
             The Honorable Timothy M. Tymkovich, United States Circuit Judge
for the Tenth Circuit, sitting by designation.
      In the prior appeal of this case, Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010),

we articulated a two-part test for deciding whether a mental impairment constitutes

an “extraordinary circumstance” sufficient to equitably toll a prisoner’s time to file

a petition for habeas corpus relief under the Antiterrorism and Effective Death

Penalty Act of 1996.

      Under the first prong, Bills explains that a mental impairment is an

“extraordinary circumstance” only when it is “so severe that either (a) petitioner

was unable rationally or factually to personally understand the need to timely file,

or (b) petitioner’s mental state rendered him unable to personally” prepare and file

the habeas petition. Bills, 628 F.3d at 1099–1100. Bills’s second prong requires

the prisoner to show that, despite his diligence, “the mental impairment made it

impossible to meet the filing deadline under the totality of the circumstances.” Id.

at 1100. Stated another way, to be eligible for equitable tolling, the otherwise

diligent petitioner’s mental impairment must be the cause-in-fact of any delay. See

Stancle v. Clay, 692 F.3d 948, 959 (9th Cir. 2012) cert. denied, --- U.S. ---, 133 S.

Ct. 1465, 185 L. Ed. 2d 372 (2013).

      The district court concluded Mr. Bills has not met the second prong of Bills

because he was not “diligent in attempting to comply with the filing requirements.”

Bills, 628 F.3d at 1101. After our own careful review of the record, and

considering the totality of the circumstances surrounding Mr. Bills’s untimely
petition, we agree with the district court that Mr. Bills has not exercised the

requisite diligence to benefit from equitable tolling.

      AFFIRMED.
