                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 17 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

AUDENCIO MALDONADO,                             No.    16-17044

                Petitioner-Appellant,           D.C. No. 4:14-cv-01920-JSW

 v.
                                                MEMORANDUM*
DANIEL PARAMO, Warden,

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Northern District of California
                    Jeffrey S. White, District Judge, Presiding

                     Argued and Submitted October 16, 2017
                           San Francisco, California

Before: HAWKINS and W. FLETCHER, Circuit Judges, and KRONSTADT,**
District Judge.

      Audencio Maldonado (“Petitioner”) appeals the denial of his petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court concluded

that the petition was time-barred. We have jurisdiction pursuant to 28 U.S.C.

§§ 1291 and 2253, and affirm.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable John A. Kronstadt, United States District Judge for the
Central District of California, sitting by designation.
      The determinative issue on appeal is whether, due to Petitioner’s claimed

mental impairment, the limitations period should have been tolled for at least five

years and two months between when his judgment of conviction in the Santa Clara

County Superior Court (“Superior Court”) became final and when the initial

habeas petition was filed there. To establish such equitable tolling, Petitioner must

satisfy a two-part test. First, he must show that his impairment was so severe that

he “was unable rationally or factually to personally understand the need to timely

file” the petition or that his mental impairment “rendered him unable personally to

prepare a habeas petition and effectuate its filing.” Bills v. Clark, 628 F.3d 1092,

1100 (9th Cir. 2010). Second, he must show that he acted with “diligence in

pursuing the claims to the extent he could understand them, but that the mental

impairment made it impossible to meet the filing deadline under the totality of the

circumstances, including reasonably available access to assistance.” Id. (citing

Holland v. Florida, 560 U.S. 631, 648 (2010)).

      The district court found that Petitioner failed to demonstrate that he was

severely impaired at any time during the period between July 6, 2007, when the

judgment became final, and September 11, 2013, when the first petition was filed

in the Superior Court. The district court also found that Petitioner failed to exercise

reasonable diligence in filing the petition.




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      There was no clear error in the finding of the district court as to Petitioner’s

mental capacity. The record includes the following evidence that supports that

determination: (1) a transcript of Petitioner’s plea colloquy, where neither the

judge nor Petitioner’s counsel raised concerns as to his mental state at that time,

and, assisted by a Spanish language interpreter, Petitioner answered numerous yes-

or-no questions before the judge determined that Petitioner understood the nature

of the charges and the consequences of his plea and voluntarily and knowingly had

waived certain rights; (2) the police report prepared with respect to the charged

conduct, which described Petitioner’s contemporaneous instruction to a witness

who discovered him with the victim “not to tell” and his later admission that “he

would have preferred to do what he did to adult women,” reflecting that Petitioner

“understood that what he had done was wrong”; (3) the presentence report

indicating Petitioner had been diagnosed with depressive disorder, for which

medication had been prescribed, and was “currently considered stable”; (4) July

2007 prison records stating that Petitioner met the “criteria for inclusion in the MH

[Mental Health] Treatment Population, and has a recommended level of care of

CCCMS,” see Lemire v. Cal. Dep’t of Corrections & Rehabilitation, 726 F.3d

1062, 1069 (9th Cir. 2013) (noting “CCCMS is the lowest level of care in the

State’s prison mental health delivery system, and is designed to provide a level of

care equivalent to that received by non-incarcerated patients through outpatient


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psychiatric treatment”); (5) several coherent written requests submitted by the

Petitioner to prison administrators for accommodations allegedly required by the

Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.; and (6)

several motions Petitioner brought in the Superior Court prior to filing the habeas

petition there.

      The principal contrary evidence introduced by Petitioner was: (1) statements

made by another inmate with no psychiatric expertise, claiming Petitioner had the

mental capacity of a ten-year old child; and (2) Petitioner’s statements to the police

at the time of his arrest that he was “not well mentally since a motorcycle

accident,” and “it was the devil that got into him and made him do it.”

      Reviewed collectively, the evidence confirms that there was no clear error in

the determination by the district court as to Petitioner’s mental capacity.

Accordingly, the district court correctly concluded that Petitioner did not meet his

burden to establish equitable tolling.

      Petitioner also failed to demonstrate that he acted diligently. Petitioner has

not presented any evidence that, during the first year of the limitations period, he

was unsuccessful in obtaining assistance comparable to what he received in 2012.

Nor did he explain why he subsequently had the ability to advance his many ADA

claims, but not file a habeas petition.

      AFFIRMED.


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