                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 08 2011

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




                            FOR THE NINTH CIRCUIT



MICHAEL STEEL,                                   No. 09-16531

              Petitioner - Appellant,            D.C. No. 2:08-cv-01030-PGR

  v.
                                                 MEMORANDUM *
CHARLES L. RYAN; et al.,

              Respondents - Appellees.



                   Appeal from the United States District Court
                            for the District of Arizona
                Paul G. Rosenblatt, Senior District Judge, Presiding

                    Argued and Submitted November 17, 2011
                            San Francisco, California

Before: THOMAS, GOULD, and BYBEE, Circuit Judges.

       Michael Steel appeals from the district court’s judgment, dismissing Steel’s

habeas petition as untimely. We have jurisdiction under 28 U.S.C. § 2253, and we

affirm.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Steel contends that the statute of limitations period for his habeas petition

should have been equitably tolled based on new evidence of mental impairment

and, thus, that his petition was timely filed. Under the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), a person in custody has one year from

when his state court judgment became final to file an application for a writ of

habeas corpus. Id. § 2244(d)(1)(A). Because his state judgment became final on

June 9, 2005, Steel had until June 9, 2006, to file his federal habeas petition, unless

it was equitably tolled.

      A petitioner is entitled to equitable tolling of AEDPA’s statute of limitations

if he shows (1) “‘that he has been pursuing his rights diligently,’” and (2) “‘that

some extraordinary circumstance stood in his way.’” Holland v. Florida, 130 S.

Ct. 2549, 2562 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

The extraordinary circumstance must have been beyond the petitioner’s control and

must have made it impossible to file the petition on time. See Roy v. Lampert, 465

F.3d 964, 969 (9th Cir. 2006).

      Under Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010), a petitioner must first

show that his mental impairment was an extraordinary circumstance beyond his

control and that it was so severe that either the “petitioner was unable rationally or

factually to personally understand the need to timely file” or “unable personally to


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prepare a habeas petition.” Id. at 1099–1100. Second, a petitioner must show that

he was diligent in pursuing the claims, but that it was impossible under the totality

of the circumstances to do so because of his mental impairment. Id.

      In this case, the district court found that Steel “has not shown extraordinary

circumstances beyond his control which made it impossible for him to timely file.”

Steel alleges only that “[n]either the district court nor the magistrate judge in this

case applied the proper legal standard in determining whether Steel was eligible for

equitable tolling.” Although he alleges that his mental incompetence was an

extraordinary circumstance justifying equitable tolling, Steel fails to demonstrate

either that his mental incompetence is severe or that it was the cause of his delay in

filing. Steel’s principal evidence consisted only of inconclusive grade-school and

middle-school reports from 1968, 1970, and 1973. Therefore, Steel is not entitled

to equitable tolling based solely on his allegations.

      Steel’s second claim is that his allegation of mental retardation warranted an

evidentiary hearing to determine whether equitable tolling applied. A habeas

petitioner “should receive an evidentiary hearing when he makes a good-faith

allegation that would, if true, entitle him to equitable tolling.” Roy, 465 F.3d at

969 (internal quotation marks omitted). In this case, even if Steel’s allegations

were true, they would be insufficient to show that he was entitled to equitable


                                            3
tolling because of “a severe mental impairment during the filing period.” See Bills,

628 F.3d at 1100 (emphasis added). Steel made no claim regarding his mental

state at the time of his guilty plea or his conviction. He also failed to allege a

causal link between his claimed mental incompetence and the delay in filing his

federal habeas petition. Therefore, the district court did not abuse its discretion in

denying Steel an evidentiary hearing.

      AFFIRMED.




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