                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 17 2011

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




                            FOR THE NINTH CIRCUIT



HUGH GARCIA,                                     No. 08-56996

               Petitioner - Appellant,           D.C. No. 3:07-cv-00048-DMS

  v.
                                                 MEMORANDUM *
JAMES YATES, Warden,

               Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                              Submitted March 8, 2011 **

Before:        FARRIS, LEAVY, and BYBEE, Circuit Judges.

       California state prisoner Hugh Garcia appeals from the district court’s order

dismissing his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction under

28 U.S.C. § 2253, and we affirm in part, vacate in part, and remand.




          *
             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).
      Garcia contends that he is entitled to equitable tolling due to the absence of

Spanish language legal materials in the prison law library. This claim fails

because, although Garcia has submitted some evidence that he attempted to

procure both legal assistance and legal materials in Spanish, he has not shown that,

throughout the period for which tolling is sought, he was diligently pursuing

“either legal materials in his own language or translation assistance from an

inmate, library personnel, or other source.” Mendoza v. Carey, 449 F.3d 1065,

1070 (9th Cir. 2006).

      Garcia also claims that he is entitled to equitable tolling due to his mental

incompetence. Garcia has presented considerable evidence that he suffers from a

delusional disorder. Moreover, the crux of the claims in his petition is that his

constitutional rights were violated when he was permitted to represent himself at

trial notwithstanding this disorder. For these reasons, remand is warranted for an

evidentiary hearing to determine whether Garcia’s delusional disorder is an

extraordinary circumstance that prevented a timely federal filing. See Holland v.

Florida, — U.S. —, 130 S. Ct. 2549, 2560-62 (2010); Laws v. Lamarque, 351 F.3d

919 (9th Cir. 2003) (remand warranted for good-faith allegation that would, if true,

support equitable tolling).

      We construe Garcia’s remaining arguments as a motion to expand the


                                           2                                    08-56996
certificate of appealability. So construed, the motion is denied. See 9th Cir. R.

22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per

curiam).

      AFFIRMED in part, VACATED and REMANDED in part.




                                          3                                    08-56996
