                                                                               FILED
                           NOT FOR PUBLICATION                                  SEP 05 2012

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



                            FOR THE NINTH CIRCUIT


REMON SHIELDS,                                    No. 09-16574

              Petitioner - Appellant,             D.C. No. 5:08-cv-00274-JF

  v.
                                                  MEMORANDUM*
TIM VIRGA, Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeremy D. Fogel, District Judge, Presiding

                        Argued and Submitted July 17, 2012
                            San Francisco, California

Before: TASHIMA, CLIFTON, and MURGUIA, Circuit Judges.

       Remon Shields, a California state prisoner, appeals the dismissal of his

petition for federal habeas corpus relief under 28 U.S.C. § 2254 as untimely under

the one-year statute of limitations period for habeas petitions instituted by the




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28

U.S.C. § 2244(d). We affirm the district court’s decision.

      We review a district court’s dismissal of habeas corpus for untimeliness de

novo. Noble v. Adams, 676 F.3d 1180, 1181 (9th Cir. 2012). “If the facts

underlying a claim for equitable tolling are undisputed, the question of whether the

statute of limitations should be equitably tolled is also reviewed de novo.” Spitsyn

v. Moore, 345 F.3d 796, 799 (9th Cir. 2003).

      To the district court, Shields argued that he was eligible for equitable tolling

based on several periods in which he was deprived access to his legal materials.

We agree with the district court that Shields failed to make the requisite showing

that these periods were extraordinary and proximately caused his untimely federal

petition. See Bryant v. Ariz. Att’y Gen., 499 F.3d 1056, 1061 (9th Cir. 2007);

Stillman v. LaMarque, 319 F.3d 1199, 1202–03 (9th Cir. 2003).

      On appeal, Shields requests that we remand his case to the district court and

order an evidentiary hearing on a claim that the untimeliness of his federal petition

was caused by mental disability. We decline to consider Shields’s equitable tolling

argument based on mental disability because he did not raise that issue before the

district court, even if we construe Shields’s pro se petition liberally. See United

States v. Pimentel-Flores, 339 F.3d 959, 967 (9th Cir. 2003) (“Issues not presented


                                           2
to the district court cannot generally be raised for the first time on appeal.”)

(internal citations omitted). Shields’s argument to the district court regarding his

mental outpatient housing, in particular, was not that he was mentally incapable,

but that he was deprived access to his legal files for the period of time that he was

so housed. That he told the district court that he had been housed in a mental

outpatient housing unit for a finite period of time several months prior to the end of

the limitations period did not present to the district court a claim that he was

mentally incapable of filing papers on a timely basis, or that his failure to timely

file papers was proximately caused by his mental condition during that time period.

Nor has Shields made a persuasive argument on appeal. Being on suicide watch

may suggest serious mental distress of some kind, but it does not necessarily mean

or even strongly suggest that Shields was incapable of preparing and filing legal

papers.

       Shields’s claim regarding his lack of access to the law library and its clerks

also cannot be construed as a mental disability claim. Cf. Laws v. Lamarque, 351

F.3d 919, 921 (9th Cir. 2003). While access to the library and its resources might

have improved the quality of his habeas petition, his claim, even read liberally, was

not that his “mental illness prevented him from filing a timely habeas petition.” Id.




                                           3
      Moreover, Shields’s filings did not give the district court reason to infer the

existence of any mental impairment such that an evidentiary hearing should have

been ordered sua sponte by the district court. See Bills v. Clark, 628 F.3d 1092,

1100–01 (9th Cir. 2010) (stating that, when deciding on a petitioner’s eligibility for

equitable tolling, the district court must examine the record to determine “whether

the petitioner satisfied his burden that he was in fact mentally impaired”). The

papers Shields filed with the district court did not demonstrate the alleged

incapacity. They looked like papers customarily received from pro se prisoners.

      AFFIRMED.




                                          4
                                                                                FILED
Shields v. Virga, No. 09-16574                                                  SEP 05 2012

                                                                            MOLLY C. DWYER, CLERK
TASHIMA, J., concurring:                                                      U.S. COURT OF APPEALS



      I concur in the judgment affirming the district court’s judgment that

Shields’s federal habeas petition is untimely.

      When considering equitable tolling, a court cannot simply stop the statute of

limitations clock when extraordinary circumstances begin and restart the clock

when those extraordinary circumstances end. A “‘petitioner’ is ‘entitled to

equitable tolling’ only if he shows . . . that some extraordinary circumstance stood

in his way’ and prevented timely filing.” Holland v. Florida, 130 S. Ct. 2549,

2562 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (emphasis

added)); see also Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001) (stating

that extraordinary circumstances must have “made it impossible to file a petition

on time”).

      Shields alleges that he faced extraordinary circumstances when he: (1) was

mentally incapacitated while in the Mental Outpatient Housing Unit (“MOHU”);

and (2) was unable to do any legal work while in administrative segregation, in the

MOHU, when the library was closed, and before he received the transcript. None

of these alleged deprivations occurred after February 6, 2007 – almost a year

before Shields filed his federal habeas petition. Shields has not shown that these

circumstances prevented a timely federal filing, as he is required to do.
Accordingly, he is not entitled to equitable tolling.

      For these reasons, I concur in the judgment affirming the district court’s

dismissal of Shields’ habeas petition.




                                           2
                                                                                FILED
Shields v. Virga, No. 09-16574                                                    SEP 05 2012

                                                                             MOLLY C. DWYER, CLERK
MURGUIA, Circuit Judge, dissenting.                                           U.S. COURT OF APPEALS



      I respectfully dissent. I would reverse the district court’s dismissal of

Shields’s petition as untimely and remand for an evidentiary hearing to determine

whether Shields is entitled to equitable tolling based on mental incompetence.

I.    District court’s dismissal as untimely

      In dismissing the petition, the district court failed to recognize that Shields’s

petition could be timely based on the combined effect of both statutory and

equitable tolling, as long as Shields were granted equitable tolling for at least

twenty days. The district court erroneously required Shields to allege eleven

months of equitable tolling when, in fact, Shields would be entitled to ten months

of statutory tolling if he were granted a single day of equitable tolling prior to the

filing of his state petition. Furthermore, Shields needed just nineteen days of

equitable tolling to extend his one-year limitations period from the end of his state

habeas procedures to the filing of his federal petition. See Ramirez v. Yates, 571

F.3d 993, 1000 (9th Cir. 2009) (remanding for factual findings on equitable tolling

where petition could only be timely if petitioner were granted both statutory and

equitable tolling, and where equitable tolling was necessary for petitioner to get




                                           1
benefit of statutory tolling).1

II.    Waiver

       Issues raised for the first time on appeal concerning the timeliness of a

habeas petition may be considered as long as they are based “on the same set of

operative facts” as a claim made at the district court. Lott v. Mueller, 304 F.3d

918, 925 (9th Cir. 2002). In Lott, the petitioner refashioned what had been a

statutory tolling claim before the district court as an equitable tolling claim on

appeal. Id. at 925. We rejected the argument that the petitioner had waived the

equitable tolling claim because both the claim before the district court and the

claim on appeal relied “on the same set of operative facts.” Id. Likewise,

Shields’s argument on appeal is based on exactly the same set of facts as those

before the district court.



       1
         Contrary to the concurrence’s assertion, nothing in our case law says that
we cannot “stop” and “restart” the statute-of-limitations clock due to equitable
tolling. Indeed, we have applied equitable tolling in such a manner on numerous
occasions. See, e.g., Ramirez, 571 F.3d at 1001 (“We vacate and remand with
instructions to make the necessary findings of fact to resolve Ramirez’s claims for
equitable tolling for the periods between May 21, 2002 and August 1, 2002; and
February 26, 2003 and July 11, 2003.”). Furthermore, Shields presents a relatively
strong case for equitable tolling precisely because the four periods of time when he
claims he could not prepare his habeas petition occurred prior to the one-year
AEDPA deadline. Had these periods taken place after February 2007, Shields’s
claim would have failed as a matter of law because extraordinary circumstances
cannot equitably toll a limitations period that has already run.
                                           2
      Although Shields did not explicitly label his equitable tolling claim before

the district court “equitable tolling for mental incompetence,” Shields’s Opposition

to Respondent’s Motion to Dismiss as Untimely (“Opposition”) is replete with

references to mental incompetence and is most fairly read as a request for equitable

tolling due to Shields’s mental health issues, combined with other obstacles. See

id. at 924 (stating that “the confluence of numerous factors beyond the prisoner’s

control” may constitute “extraordinary circumstances” for purposes of equitable

tolling). In his Opposition, Shields clearly listed the circumstances beyond his

control that he alleged prevented him from filing a timely petition. Shields

explained that he was denied access to his legal property for three periods of time,

including while committed to the “Mental Outpatient Housing Unit” for “Accute

Psychological treatment”and “suicide pervention [sic].” He also requested

equitable tolling for a period when he could not access the law library or obtain the

assistance of the law library clerk. Critically, Shields articulated that his lack of

access to the law library and the law library clerk constituted an extraordinary

circumstance “due to [Shields’s] mental learning impairment / disability and

mental health status,” which he buttressed by stating that he was “diagnosed as

mildly retarded,” had “a reading level [Test of Adult Basic Education] score of

2.5,” and is currently in a mental health program run by the California Department

                                           3
of Corrections. The majority downplays this evidence of mental illness—which it

euphemistically refers to as “distress”—and construes Shields’s arguments in an

overly formalistic way. The majority appears to punish Shields not because he has

changed his arguments on appeal, but because his claims are more artfully

presented now that he is represented by appointed counsel. Without even relying

on the liberal construction owed to a pro se prisoner’s filings, Rand v. Rowland,

154 F.3d 952, 958 (9th Cir. 1998) (en banc), I would conclude that Shields’s

habeas petition clearly alleged that his request for equitable tolling was based on

mental incompetence; specifically, that certain obstacles, such as the denial of

access to his legal files for 95 days, see Lott, 304 F.3d at 925 (holding that, if

uncontroverted, petitioner’s allegation that he was denied access to his legal papers

for 82 days is sufficient to warrant equitable tolling), as well as a law library clerk,

made timely filing impossible for Shields in light of his mental health issues.

      The majority disposes of the ample evidence showing that Shields suffers

from mental illness by saying that this “does not necessarily mean” that Shields

was incapable of filing a timely petition.2 But if this evidence, which includes a

determination by the state prison system to place Shields in a mental health

      2
        Under the majority’s logic, Shields is in a Catch-22. He is too coherent for
equitable tolling, but not articulate enough to avoid waiving his equitable tolling
claim.
                                           4
program, “necessarily” meant that Shields’s mental incapacity prevented him from

filing a timely petition, he would be entitled to a grant of equitable tolling under

the test set forth in Bills v. Clark, 628 F.3d 1092, 1009-1100 (9th Cir. 2010). The

question here, rather, is merely whether Shields should be granted an evidentiary

hearing as to equitable tolling. “[W]e do not require [Shields] to carry a burden of

persuasion at this stage in order to merit further investigation into the merits of his

argument for tolling. Rather, our cases require only that there be ‘circumstances

consistent with petitioner’s petition under which he would be entitled to a finding

of an ‘impediment’ under § 2244(d)(2)(B) or to equitable tolling’ for further

factual development to be required.” Laws v. Lamarque, 351 F.3d 919, 924 (9th

Cir. 2003) (quoting Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000)

(en banc)). All that is required of Shields at this stage is a “good-faith allegation

that would, if true, entitle him to equitable tolling.” Id. at 921. Because Shields

has alleged sufficient facts that would, if true, entitle him to equitable tolling, I

would remand to the district court for an evidentiary hearing to determine whether

any mental incompetence, combined with the denial of access to the law library,

law library clerk, and his legal files warrant equitable tolling.




                                            5
