                                                                             FILED
                            NOT FOR PUBLICATION                               DEC 12 2014

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



                            FOR THE NINTH CIRCUIT


DAVID MICHAEL FUSCHAK,                            No. 12-15262

              Petitioner - Appellant,             D.C. No. 3:11-cv-03790-SI

  v.
                                                  MEMORANDUM*
GARY SWARTHOUT, Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Northern District of California
                    Susan Illston, Senior District Judge, Presiding

                     Argued and Submitted November 17, 2014
                             San Francisco, California

Before: GOULD, WATFORD, and FRIEDLAND, Circuit Judges.

       David Fuschak challenges the dismissal of his federal habeas petition as

untimely, arguing that he is entitled to both statutory and equitable tolling of the

one-year statute of limitations. We need not address all of the grounds Fuschak

asserts as a basis for tolling. To prevail on appeal, he must establish entitlement to



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                             Page 2 of 3
either statutory or equitable tolling for the period between the denial of his state

trial court habeas petition and the filing of his habeas petition in the California

Court of Appeal. He has not established entitlement to either form of tolling.

       1. To be entitled to statutory tolling, Fuschak must show that he filed his

Court of Appeal petition in a timely manner. See Stewart v. Cate, 757 F.3d 929,

935 (9th Cir. 2014). Following the denial of his state trial court petition, Fuschak

took 103 days to file his next petition in the Court of Appeal. Under California

law, delays of this length are unreasonable absent a showing of good cause. See id.

at 935–36. Fuschak asserts that his lack of access to the prison law library and his

mental illness justify the 103-day delay. However, he did not adequately explain

to the state courts why he needed more than two hours of library access per week

to revise his trial court petition, or why his mental illness rendered the additional

delay reasonable. Absent such an explanation, we conclude that California courts

would deem Fuschak’s Court of Appeal petition untimely. See id. at 937. Because

the Court of Appeal petition was untimely, neither that petition nor his subsequent

California Supreme Court petition was “properly filed” within the meaning of 28

U.S.C. § 2244(d)(2). As a result, Fuschak is not entitled to statutory tolling for any

period after the denial of his state trial court petition.
                                                                               Page 3 of 3
       2. Fuschak argues that he is entitled to equitable tolling for the period

following denial of his state trial court petition because he relied on a handbook

from the prison law library that suggested the federal statute of limitations stopped

running during the entire state habeas process, whether or not his state petitions

were timely filed. Fuschak could not reasonably have relied on the handbook to

justify the 103-day delay in filing his California Court of Appeal petition. The

handbook in question clearly notes that “[p]ublished decisions” on what is required

for tolling in between denial in one state court and filing in a higher state court

“have gone both ways,” and states that petitioners should use “as few days as

possible in between” state post-conviction petitions.

       3. Fuschak also asserts that he is entitled to equitable tolling for his mental

illness. However, Fuschak has not shown that his impairment was so severe that

he was unable to understand the need to timely file, or that his mental health issues

rendered him unable to prepare a habeas petition. See Bills v. Clark, 628 F.3d

1092, 1099–1100 (9th Cir. 2010).

       Without either statutory or equitable tolling for the 103 days between the

denial of his state trial court petition and the filing of his petition in the California

Court of Appeal, Fuschak’s federal habeas petition is untimely.

       AFFIRMED.
