                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                                FILED
                            FOR THE NINTH CIRCUIT                                  NOV 26 2014

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

LARRY A. CHATMAN,                                 No. 12-15461

              Petitioner - Appellant,             D.C. No. 2:10-cv-00264-KJM-
                                                  CKD
  v.

RICK HILL, Warden,                                MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                     Argued and Submitted September 11, 2014
                             San Francisco, California

Before: WALLACE, SCHROEDER, and W. FLETCHER, Circuit Judges.

       Larry A. Chatman appeals the district court’s dismissal of his habeas petition

as untimely and argues he is entitled to equitable tolling on the basis of his mental

illness. A petitioner is entitled to equitable tolling on the basis of mental

impairment when: (1) his mental impairment was “so severe” that he was either



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
unable to “understand the need to timely file” or unable to “personally prepare a

habeas petition and effectuate its filing” and (2) he was diligent in “pursuing the

claims to the extent he could understand them, 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.” Bills v. Clark,

628 F.3d 1092, 1100 (9th Cir. 2010).

      Chatman produced uncontroverted evidence demonstrating a long history of

mental illness, including a report by a psychiatric expert, Social Security

Administration disability records, and prison medical records. Chatman has been

diagnosed with psychotic disorder, paranoid schizophrenia, alcohol-induced

persisting dementia, alcohol abuse disorder, and antisocial personality disorder.

The records also indicate that Chatman frequently suffers from depression and

experiences auditory hallucinations. Moreover, the records show that Chatman has

an IQ of 69 and the language skills of a third-grader. Chatman was very heavily

medicated during at least part of the filing period. According to the affidavits of

Chatman and other inmates, Chatman was able to file motions and petitions,

including his federal habeas petition, only with the assistance of other inmates.

      The magistrate judge found that Chatman had not met his burden of showing

that his mental health problems were so severe that he was unable to personally


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prepare and file a habeas petition, relying partly on Chatman’s own self-reporting

of his mental status. The magistrate judge also found that Chatman had not

demonstrated why his illiteracy prevented him from timely filing, but did not

address Chatman’s mental retardation or the effect of his high levels of medication.

The district court declined to adopt the portions of the magistrate judge’s findings

that relied on Chatman’s own reporting, but found the magistrate judge’s ultimate

conclusion correct.

      Our court in Bills v. Clark stated the standard of review for equitable tolling

in the context of a mental impairment as follows:

      The dismissal of a petition for writ of habeas corpus as time-barred is
      reviewed de novo. 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. Otherwise,
      findings of fact made by the district court are to be reviewed for clear
      error.

628 F.3d at 1096; see also Gibbs v. LeGrand, No. 12-16859, 2014 WL 4627991 at

*2 (9th Cir. Sept. 17, 2014).

      In this case, the underlying medical record is undisputed, so Bills appears to

authorize de novo review. Chatman met his burden under the first prong of Bills

by showing that his severe mental illness, combined with his mental retardation,

rendered him unable to timely file a petition. On the same basis, Chatman also



                                          3
demonstrated that he was diligent in pursuing his claims under the second prong of

Bills. The district court thus erred in holding that Chatman was not entitled to

equitable tolling under the Bills v. Clark standard.

         Even if we were to review for clear error, we would reach the same result.

The district court’s findings did not take into account the severity of Petitioner’s

impairments. The district court thus clearly erred in discounting the severity of

Chatman’s mental illness, and failing to take into consideration Chatman’s mental

retardation. Because Chatman repeatedly attempted to secure the assistance of

other inmates, and was able to file only after securing such assistance, the district

court clearly erred in finding he had failed to show his mental condition caused the

delay.

         The decision of the district court is REVERSED and this case is

REMANDED to allow Chatman to file his § 2254 petition.




                                           4
                                                                                   FILED
Chatman v. Hill, 12-15461                                                          NOV 26 2014

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



      I respectfully dissent on two grounds. First, the majority errs in applying the

de novo standard of review to the district court’s factual determination of mental

incompetency. Reviewed through the lens of deference owed to a district court’s

factual determinations, I conclude that the district court’s finding was not clearly

erroneous and should be affirmed. Second, even if the district court’s findings

regarding the severity of Mr. Chatman’s mental illness were clearly erroneous, the

majority also errs in reversing the district court’s judgment while factual issues

remain to be determined in the first instance by the district court. To reach its

result, the majority improperly exceeds this court’s appellate function by

independently making a factual finding for the first time on appeal: that Mr.

Chatman was diligent in pursuing his claims.

                                           I.

       A district court’s determination regarding the severity of a petitioner’s

mental incapacity, in the context of an equitable tolling analysis, is a factual

determination. Accordingly, our court has consistently applied the clear error

review standard to such determinations. Stancle v. Clay, 692 F.3d 948, 958 (9th

Cir. 2012) (“Stancle bases his equitable tolling argument on his alleged mental

incompetency. Thus, we would generally review the district court’s finding

regarding Stancle’s competency for clear error.” (emphasis added)); Forbess v.
Franke, 749 F.3d 837, 840–41 (9th Cir. 2014) (referring repeatedly to the district

court’s “severity” determination as a “finding” and accepting the finding as

“controlling” because it was “well documented”); Wright v. McDonald, 468

F.App’x 678, 679 (9th Cir. 2012) cert. denied, 133 S.Ct. 323 (2012) (“[A]fter

assessing the medical documentation submitted by Wright, the district court did

not clearly err in finding that Wright failed to demonstrate cognitive impairment

rising to the level of an extraordinary circumstance.” (emphasis added)); Simon v.

Uribe, 528 F. App’x 764, 765 (9th Cir. 2013) (district court’s “finding of fact” that

petitioner “failed to show that he suffered from a mental impairment during the

tolling period . . . was not clearly erroneous”). See also Jones v. Turner, 449 F.

App’x 701, 702 (9th Cir. 2011) (holding that the district court’s “finding” that

petitioner’s trifecta of impediments combined “did not make it impossible for him

to timely file his habeas petition . . . was not clear error”).

       In spite of this consistent authority, however, the majority quotes language

from Bills it believes “appears to authorize de novo review.” While it is true the

ultimate question whether a petitioner is entitled to equitable tolling is reviewed de

novo, Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003), the prerequisite finding

about the severity of a petitioner’s mental illness is a factual one that may be

reversed only if clearly erroneous, see Forbess, 749 F.3d at 840–41. Bills

acknowledged this distinction in affirming that “[w]e review the district court’s

                                            2
finding of competency for clear error.” 628 F.3d at 1096 (emphasis added).

Indeed, the majority itself correctly refers to these determinations as “findings”

rather than conclusions of law.

      Applying the proper standard of review, I do not believe the district court’s

factual finding was clearly erroneous. Given the record evidence presented, the

magistrate judge concluded (and the district court agreed) that Chatman failed to

carry his burden under the first test of Bills to show that, during the relevant period,

his mental illness was so severe that he was unable either to understand the need to

file or to personally prepare and file a habeas petition. This finding was not clearly

erroneous. Unlike the petitioner in Forbess, whose impairment led him to believe

the FBI would release him from prison on its own accord without any action on his

part, Chatman failed to identify how his impairments left him unable to understand

the need to timely file. Of course, the record demonstrates that Chatman suffered

from some degree of mental illness; that he was “suspicious” and “anxious”; that

he had a fifth-grade reading level; that he exhibited a “dysphoric” demeanor; and

that he sometimes heard voices. Perhaps if this panel were siting as the fact finder,

it would find these impairments to be sufficiently severe so as to render Chatman

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

Bills 628 F.3d at 1100. But as an appellate court, we cannot reverse the district

court’s factual findings unless they are clearly erroneous. In my view, the district

                                           3
court’s finding on this test was not clearly erroneous.

                                           II.

      Even if the majority were to have applied the correct review standard and

determined that the district court’s finding was clearly erroneous, it still could not

properly reverse the district court’s judgment without first remanding for further

factual findings. Instead of remanding, however, the majority takes it upon itself to

proceed independently through the Bills analysis and find, for the first time on

appeal, that Chatman “demonstrated that he was diligent in pursuing his claims

under the second prong of Bills.” This, like the severity determination, is a factual

finding to be made in the first instance by the district court. In this case, however,

the magistrate judge and the district court never reached, and therefore never made,

a factual finding on the issue of Chatman’s diligence. It is improper, therefore, for

this court to make that factual finding for the first time on appeal. Hycon Mfg. Co.

v. H. Koch & Sons, 219 F.2d 353, 355 (9th Cir. 1955) (“No authority is given

except to District Courts to make new findings of fact. Presently our sole function

as to such findings is to re-examine judicially, criticize and set aside if clearly

erroneous”). Assuming we needed to reach the issue of diligence (which, for the

reasons stated above, I do not), the proper course would be to remand for a finding

on petitioner’s diligence, not to make that finding in the first instance on appeal. I

therefore dissent.

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