                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 27 2010

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




                            FOR THE NINTH CIRCUIT



BRUNO CAMPOSTRINI,                               No. 09-17567

              Petitioner - Appellant,            D.C. No. 2:07-cv-02132-JAM-
                                                 GGH
  v.

JAMES E. TILTON; ATTORNEY                        MEMORANDUM *
GENERAL OF THE STATE OF
CALIFORNIA; MICHAEL MARTEL,
Acting Warden,

              Respondents - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                          Submitted December 9, 2010 **
                            San Francisco, California

Before: SCHROEDER, THOMAS, and GOULD, Circuit Judges.




        *
             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).
      Petitioner pled no-contest to committing a forcible lewd act upon a child.

Petitioner’s conviction became final for purposes of AEDPA’s one-year statute of

limitations on July 19, 2003. See 28 U.S.C. § 2244(d)(1). Petitioner did not file

the first of three state-court habeas petitions until September 2006. Petitioner filed

a habeas petition in district court on October 10, 2007. It was dismissed as

untimely.

      Petitioner claims the district court was required to hold an evidentiary

hearing on his claim that mental incompetence prevented his timely filing.

Equitable tolling of the one-year limitations period is available only when

“‘extraordinary circumstances beyond a prisoner’s control make it impossible to

file a petition on time’ and ‘the extraordinary circumstances were the cause of his

untimeliness.’” Laws v. Lamarque, 351 F.3d 919, 922 (9th Cir. 2003) (quoting

Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003)). The district court held that

Petitioner failed to meet his burden to show that extraordinary circumstances

beyond his control existed. It also held that Petitioner was not entitled to an

evidentiary hearing on his claim to equitable tolling because he failed to show that

further factual development, beyond the comprehensive mental health record

produced, was necessary.




                                           2
      Petitioner contends that he is entitled to an evidentiary hearing because

expert testimony is required to determine the effect of his mental condition. But he

did not proffer any such expert evidence and the district court reviewed all of

Petitioner’s health records. See Roberts v. Marshall, No. 08-55901, 2010 WL

5064378, *3 (9th Cir. Dec. 13, 2010) (“Where the record is amply developed, and

where it indicates that the petitioner’s mental incompetence was not so severe as to

cause the untimely filing of his habeas petition, a district court is not obligated to

hold evidentiary hearings to further develop the factual record, notwithstanding a

petitioner’s allegations of mental incompetence.” (citation omitted)). Petitioner

failed to meet his burden of showing that his mental illness prevented him from

timely filing a habeas petition.

      AFFIRMED.




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