                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 07 2012

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




                            FOR THE NINTH CIRCUIT



RONALD DAVID BAKER,                              No. 09-17371

              Petitioner - Appellant,            D.C. No. 2:08-cv-01608-LKK-CMK

  v.
                                                 MEMORANDUM *
CALIFORNIA DEPARTMENT OF
CORRECTIONS, Director; M. MARTEL,
Warden,

              Respondents - Appellees.



                  Appeal from the United States District Court
                      for the Eastern District of California
               Lawrence K. Karlton, Senior District Judge, Presiding

                             Submitted May 15, 2012 **
                              San Francisco, California

Before: REINHARDT, CLIFTON, and N.R. SMITH, Circuit Judges.

       Ronald David Baker filed an untimely federal habeas petition. Baker

appeals the dismissal of his petition based upon the district court’s determination


        *
             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).
that Baker is not entitled to equitable tolling on account of his limited reading and

writing abilities. Baker also argues that he should be entitled to an evidentiary

hearing to further support his contention that his limited reading and writing

abilities warrant equitable tolling. We affirm.

      We do not address the district court’s determination that Baker’s habeas

petition was untimely under the statutory timing requirements, even with the

inclusion of statutory tolling for his state petitions, because Baker does not

challenge that determination. As to equitable tolling, Baker’s evidence of his

limited reading and writing abilities does not establish a mental condition that

would amount to extraordinary circumstances. See Rasberry v. Garcia, 448 F.3d

1150, 1153 (9th Cir. 2006) (establishing that proof of extraordinary circumstances

is one of two required elements for equitable tolling).

      Establishing extraordinary circumstances requires proof that conditions

“beyond a prisoner’s control make it impossible to file a petition on time.” Bills v.

Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (internal quotation mark omitted).

Baker’s evidence does not establish any impossibility due to mental condition or

any other extraordinary circumstance. Low literacy levels, lack of legal

knowledge, and need for some assistance to prepare a habeas petition are not

extraordinary circumstances to warrant equitable tolling of an untimely habeas


                                           2
petition. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006); Ford v.

Pliler, 590 F.3d 782, 789 (9th Cir. 2009); see also Hughes v. Idaho State Bd. Of

Corrections, 800 F.2d 905, 909 (9th Cir. 1986).

      Additional evidence would not lead to a different determination and thus an

evidentiary hearing is unnecessary. “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 v. Lampert, 465 F.3d 964, 969 (9th Cir.

2006) (quoting Laws v. Lamarque, 351 F.3d 919, 921 (9th Cir. 2003)). As

discussed above, any further evidence of low literacy and lack of legal knowledge

could not amount to an extraordinary circumstance to warrant equitable tolling.

Thus, the district court appropriately dismissed the habeas petition without an

evidentiary hearing.

      Finally, Baker also requests that we take judicial notice of an expert

declaration submitted in the record of another federal habeas case, Bills v. Clark,

No. 08-17157, which declaration apparently states the position that preparation of a

habeas petition requires at minimum a high school level of reading and writing.

We deny the motion because this is not an uncontroverted fact for which judicial

notice would apply. “As a general rule, a court may not take judicial notice of

proceedings or records in another cause so as to supply, without formal


                                          3
introduction of evidence, facts essential to support a contention in a cause then

before it.” M/V American Queen v. San Diego Marine Constr. Corp., 708 F.2d

1483, 1491 (9th Cir. 1983).

      AFFIRMED.




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