                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 02 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LASANE LEE ROBERTSON,                            No.   15-56156

              Petitioner-Appellant,              D.C. No.
                                                 2:12-cv-00633-GW-PLA
 v.

DAVE DAVEY, Warden,                              MEMORANDUM*

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     George H. Wu, District Judge, Presiding

                        Argued and Submitted July 11, 2017
                               Pasadena, California

Before: REINHARDT, FERNANDEZ, and WARDLAW, Circuit Judges.

      Lasane Robertson (“Robertson”) appeals the district court’s dismissal of his

28 U.S.C. § 2254 habeas petition as untimely. We have jurisdiction pursuant to 28

U.S.C. §§ 1291 and 2253. We reverse the dismissal of Robertson’s habeas petition

and remand for further proceedings.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      The district court erred in finding that Robertson was ineligible for equitable

tolling during the periods in which he received legal assistance from fellow

prisoners, who filed state habeas petitions on his behalf. In Bills v. Clark, 628 F.3d

1092 (9th Cir. 2010), we laid out a two-part test for equitable tolling based on a

mental impairment. First, a petitioner must show that “his mental impairment was

an ‘extraordinary circumstance’ beyond his control,” rendering him unable to

personally prepare a habeas petition or understand the need to timely file. Id. at

1099–1100. Second, he must show that he was diligent in pursuing his claims “but

that [his] mental impairment made it impossible to meet the filing deadline under

the totality of the circumstances, including reasonably available access to

assistance.” Id. at 1100. This test does not preclude a petitioner from showing that

he was entitled to equitable tolling while he was receiving legal assistance from

fellow prisoners. As we explained in Bills, “[A] petitioner’s mental impairment

might justify equitable tolling if it interferes with the ability to understand the need

for assistance, the ability to secure it, or the ability to cooperate with or monitor

assistance the petitioner does secure.” Id. (emphasis added).

      The district court did not determine whether Robertson met the requirements

for tolling under Bills because it found that, even if he did, the statute of limitations

expired during the time he had assistance from jailhouse lawyers. We remand for


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the district court to make these findings in the first instance. See id. at 1101

(remanding for the district court to make factual findings regarding petitioner’s

mental impairment and diligence). For the periods during which Robertson had

assistance, the district court must determine whether Robertson’s impairment

prevented him from adequately monitoring those helping him. See id. at 1100.

      Concurrently, we grant Robertson’s unopposed request for judicial notice of

the Clark Remedial Plan and California Department of Corrections distribution

memo. See Fed. R. Evid. 201(b).

      REVERSED; REMANDED.




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