                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 YOW MING YEH,                                   No. 11-55625
             Petitioner-Appellant,
                                                   D.C. No.
                     v.                         5:10-cv-00965-
                                                   JVS-JCG
 MATTHEW MARTEL, Chief Deputy
 Warden (A),
             Respondent-Appellee.                  OPINION


        Appeal from the United States District Court
           for the Central District of California
         James V. Selna, District Judge, Presiding

                    Argued and Submitted
             April 7, 2014—Pasadena, California

                      Filed May 13, 2014

       Before: Myron H. Bright,* Jerome Farris, and
           Andrew D. Hurwitz, Circuit Judges.

                   Opinion by Judge Farris;
                   Dissent by Judge Bright




  *
    The Honorable Myron H. Bright, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.
2                         YEH V. MARTEL

                           SUMMARY**


                          Habeas Corpus

   The panel affirmed the district court’s dismissal of an
28 U.S.C. § 2254 habeas corpus petition.

     The panel held that petitioner was not entitled to equitable
tolling of the limitations period due to either his limited
English proficiency or his mental impairment, because
neither constituted an “extraordinary circumstance” that
prevented him from timely filing his petition and he did not
diligently pursue his rights.

    Judge Bright dissented. He would conclude that the
district court abused its discretion in dismissing the petition
as untimely, because petitioner has sufficiently alleged that a
combination of extraordinary circumstances—each of which
the majority analyzed in isolation instead of in combination—
prevented him from filing a timely petition.


                             COUNSEL

Rose D. Angulo (argued) and Sean Kennedy, Federal Public
Defenders, Santa Ana, California, for Petitioner-Appellant.

Matthew Mulford (argued), Julie Garland, and Kevin Vienna,
California Department of Justice, San Diego, California, for
Respondent-Appellee.

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                       YEH V. MARTEL                          3

                          OPINION

FARRIS, Circuit Judge:

                               I.

    On July 18, 2006, Yow Ming Yeh pled guilty to one count
of battery in California state court for biting a correctional
officer while incarcerated at the California Rehabilitation
Center. His state court judgment became final on September
18, 2006, when the time for appealing his conviction expired.
He filed no direct appeal. In the year that followed, Yeh
continued to request assistance for an appeal. On March 28,
2007, Yeh filed an Inmate Appeal Form requesting assistance
from the public defender’s office. He also requested a
translator. On September 12, 2007, Yeh again requested to
meet with his “appeals coordinator.” On September 24, 2007,
Yeh filed another Inmate Appeal Form. Over a year later, on
October 17, 2008, Yeh filed a petition for a writ of habeas
corpus in the California Court of Appeals, which was denied
on November 19, 2008. Yeh subsequently filed similar
petitions in the California Supreme Court and the Riverside
County Superior Court, which were also denied.

    On June 8, 2010, more than two and a half years after the
limitations period had run, Yeh filed the present Petition for
Writ of Habeas Corpus in federal court. The district court
dismissed the petition as untimely because of the one-year
statute of limitations. Yeh appeals the district court’s
judgment, arguing that he is entitled to equitable tolling based
on (1) his limited English proficiency and (2) his mental
impairment. Yeh is a non-English speaker with very limited
English language abilities, who has a history of mental
4                      YEH V. MARTEL

illness, although he does not allege that he is mentally
incompetent.

     The dismissal of a habeas petition as barred by the statute
of limitations is reviewed de novo, as is the issue of whether
the petitioner is entitled to equitable tolling (so long as there
are no facts in dispute). Bills v. Clark, 628 F.3d 1092, 1096
(9th Cir. 2010). We have jurisdiction under 28 U.S.C. § 2253,
and we AFFIRM.

                               II.

     Equitable tolling is available to a habeas petitioner if
(1) the petitioner pursued his rights diligently, and (2) an
extraordinary circumstance prevented timely filing. Holland
v. Florida, 560 U.S. 631, 645 (2010). This is a very high bar,
and is reserved for rare cases. See, e.g., Spitsyn v. Moore,
345 F.3d 796, 799 (9th Cir. 2003) (“extraordinary
circumstances beyond a prisoner’s control make it impossible
to file a petition on time”) (emphasis in original); Miranda v.
Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (requirements
are “very high, lest the exceptions swallow the rule”); Miles
v. Prunty, 187 F.3d 1104, 1107 (9th Cir. 1999) (relief is
“unavailable in most cases”). Yeh fails to meet this bar.

                               A.

    Yeh claims that his limited English proficiency
constitutes an “extraordinary circumstance” that made it
impossible for him to meet the deadline. Lack of English
proficiency can constitute an extraordinary circumstance for
equitable tolling purposes, but only when the petitioner is
unable to procure legal materials in his own language or to
obtain translation assistance. Mendoza v. Carey, 449 F.3d
                      YEH V. MARTEL                         5

1065, 1070 (9th Cir. 2006). Here, Yeh received translation
assistance on numerous occasions during the running of the
one-year limitations period. In his Petition, he admits that
“other inmates assist[ed] him” in many of his internal appeal
filings. Since Yeh received assistance in translation during
the relevant time period, his lack of linguistic understanding
could not have made it “impossible” for him to meet the
deadline.

                             B.

     Yeh next claims that his mental impairment constituted an
“extraordinary circumstance” that prevented him from timely
filing. The standard for equitable tolling based on mental
impairment is delineated by Bills v. Clark, 628 F.3d 1092,
1099–100 (9th Cir. 2010):

       (1) First, a petitioner must show his mental
       impairment was an “extraordinary
       circumstance” beyond his control by
       demonstrating the impairment was so severe
       that either

       (a) petitioner was unable rationally or
       factually to personally understand the need to
       timely file, or

       (b) petitioner’s mental state rendered him
       unable personally to prepare a habeas petition
       and effectuate its filing.

       (2) Second, the petitioner must show diligence
       in pursuing the claims to the extent he could
       understand them, but that the mental
6                     YEH V. MARTEL

       impairment made it impossible to meet the
       filing deadline under the totality of the
       circumstances, including reasonably available
       access to assistance.

Id. This reiterates the stringency of the overall equitable
tolling test: the mental impairment must be so debilitating
that it is the but-for cause of the delay, and even in cases of
debilitating impairment the petitioner must still demonstrate
diligence. Id. at 1100.

    Yeh’s mental impairment claim fails. First, it cannot be
that his mental impairment was so severe as to be the but-for
cause of his delay. Yeh repeatedly sought administrative and
judicial remedies, and throughout these proceedings showed
an awareness of basic legal concepts: he was able to make
requests for assistance from an appeals coordinator and an
interpreter at his administrative hearings, and also to request
assistance from a public defender after his conviction.
Moreover, he was able to file a state habeas petition in three
different California venues. These facts refute a claim of
impairment so debilitating that one could not “rationally or
factually” understand the meaning of a deadline. See id. at
1099–100.

    Our recent decision in Forbess v. Franke, No. 12-35843
(9th Cir. Apr. 18, 2014), illustrates the type of petitioner
entitled to equitable tolling. There, the petitioner “believed
he was working undercover for the FBI, and his trial was a
‘sham’ orchestrated to lure his ex-wife out of hiding and
arrest her for being part of an extensive drug distribution
operation,” and the “magistrate judge explicitly found that
Forbess’s delusions persisted throughout the relevant
[limitations] period.” Id. at 6–7. Yeh’s mental impairment
                       YEH V. MARTEL                          7

and his allegations regarding that impairment come nowhere
close to those in Forbess.

     The record also reflects a lack of diligence. Multiple
periods of delay demonstrate that Yeh failed to pursue relief
diligently. Instead he allowed months and years to go by
without acting. His state court conviction became final on
September 18, 2006, but he did not file his state habeas
petition for nearly two years (October 17, 2008). After his
final state habeas petition was denied by the California
Supreme Court (June 10, 2009), he allowed nearly an entire
year to elapse before he filed his federal habeas petition (June
8, 2010). Even assuming it were true that he was unable to
request relief because he was detained in a special housing
unit (a contention refuted by the fact that three state habeas
petitions were filed during this time), Yeh admits that he was
released from this confinement on October 08, 2009. There
is no explanation for the further nine-month delay. The
record reflects a lack of reasonable diligence. Equitable
tolling is not appropriate.

                              III.

    The district court properly denied the Petitioner’s
equitable tolling claim. The petition for habeas corpus is
barred by the one-year statute of limitations. See 28 U.S.C.
§ 2244(d)(1). AFFIRMED.



BRIGHT, Circuit Judge, dissenting:

     I dissent. I would conclude that the district court abused
its discretion in dismissing Yow Ming Yeh’s federal habeas
8                         YEH V. MARTEL

Petition as untimely. Because Yeh has sufficiently alleged
that a combination of extraordinary circumstances prevented
him from filing a timely petition, he is entitled to an
evidentiary hearing to determine whether equitable tolling
applies.

     The record reveals several barriers to Yeh’s timely filing.
At the time Yeh filed his federal Petition in June 2010, he
was serving a six-year sentence for his conviction of battery
upon a correctional officer.1 While incarcerated, Yeh lacked
any proficiency in the English language. Yeh had also been
confined in administrative segregation and did not have legal
representation during the time in which he was required to
file a federal habeas petition. And as if that was not enough,
the record also reflects that Yeh has a history of severe
mental illness—a circumstance that the district court failed to
address in assessing and denying equitable tolling or a
hearing on that matter.

    In denying Yeh relief, the majority does consider Yeh’s
allegation that his mental impairment tolled the statute of
limitations for filing his Petition. But in doing so, the
majority misreads the effect of this court’s recent decision in
Forbess v. Franke, No. 12-35843, __ F.3d __, 2014 WL
1509025 (9th Cir. Apr. 18, 2014), which sheds a new light on
the importance of developing the record with respect to
claims of equitable tolling due to mental impairment. In


    1
    At oral argument, Yeh’s counsel represented that Yeh has since been
released from custody. Yeh’s release does not render his Petition moot
because “‘the adverse consequences of [his] criminal conviction remain.’”
Goldyn v. Hayes, 444 F.3d 1062, 1063 n.2 (9th Cir. 2006) (quoting United
States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1470 (9th Cir.
1988)).
                        YEH V. MARTEL                           9

Forbess, this court reversed the district court’s denial of relief
and held that the petitioner was entitled to equitable tolling of
the one-year statute of limitations for filing a federal habeas
petition because his severe mental delusions prevented him
from filing in a timely manner. Id. at __, 2014 WL 1509025,
at *4. Critically, the district court gave the petitioner in
Forbess the opportunity to present live testimony and submit
supplemental exhibits before the magistrate judge to support
his equitable tolling argument. Forbess v. Mills, No. 3:08-cv-
01261-AC, 2012 WL 4324912 (D. Or. Aug. 17, 2012). The
majority makes no mention of that important aspect of
Forbess. And despite the fact that Yeh alleged that multiple
circumstances prevented him from filing a timely petition, he
received no similar opportunity to develop the record. The
majority’s denial of a remand for an evidentiary hearing for
Yeh cannot be reconciled with Forbess.

    In addition, the majority ignores the direct instruction in
Forbess that a court’s assessment of equitable tolling must be
guided by a “flexible, totality-of-the-circumstances
approach.” __ F.3d at __, 2014 WL 1509025, at *4. Rather
than consider the combination of factors alleged by Yeh, the
majority erroneously analyzes each of Yeh’s justifications for
equitable tolling in isolation. In so doing, the majority
ignores Yeh’s principal argument: that the combination of
lack of English proficiency, solitary confinement, and mental
impairment prevented him from timely filing. See Lott v.
Mueller, 304 F.3d 918, 923, 924 (9th Cir. 2002) (holding that
the determination of equitable tolling is “‘highly fact
dependent’” and may “involve the confluence of numerous
factors beyond the prisoner’s control” (quoting Whalem/Hunt
v. Early, 233 F.3d 1146, 1147 (9th Cir. 2000) (en banc)).
10                      YEH V. MARTEL

    The majority also misconstrues Yeh’s burden at this stage
of the proceedings. The majority rejects Yeh’s claim of
equitable tolling due to mental impairment on the ground that
(1) Yeh’s mental impairment was not sufficiently severe and
(2) Yeh did not diligently pursue his federal habeas claims.
But “we do not require [Yeh] to carry a burden of persuasion
at this stage in order to merit further investigation into the
merits of his argument for tolling.” Laws v. Lamarque,
351 F.3d 919, 924 (9th Cir. 2003). Rather, Yeh must simply
make “a non-frivolous showing that he had a severe mental
impairment during the filing period that would entitle him to
an evidentiary hearing.” Bills v. Clark, 628 F.3d 1092, 1100
(9th Cir. 2010).

    Yeh has made such a showing. The record here is replete
with evidence that Yeh has a history of mental illness and has
been directed to institutions and programming focused on
assisting inmates with mental health issues. This court has
remanded for an evidentiary hearing under similar
circumstances. See Chick v. Chavez, 518 Fed. App’x 567,
569 (9th Cir. 2013) (remanding for an evidentiary hearing
even though “[t]he record reveals no medical evidence from
the time period for which [the petitioner] seeks tolling”
because the record revealed that the petitioner “had some
degree of mental impairment”). Additionally, although a
mental health clinician stated that Yeh would “need to be
stabilized in a treatment setting” if found guilty of battery, the
record does not speak to Yeh’s mental condition after he was
convicted nor whether he received the recommended
treatment. It is necessary to develop the record on these
important questions.

    The majority also mistakenly relies on Yeh’s ability to
file internal prison requests and state habeas petitions as
                      YEH V. MARTEL                        11

evidence that he was not prevented from filing a timely
petition. This is a non-sequitur. That Yeh made certain
filings does not demonstrate his personal awareness of the
timing requirements for filing a federal habeas petition nor
his understanding of how to file a petition. Nor does
assistance from fellow prisoners at various points in time
demonstrate the availability of assistance at any time during
the full period for which Yeh seeks tolling. Yes, the
assistance Yeh received may call into question the degree to
which his circumstances prevented him from filing a petition
for habeas corpus in a timely manner. But that issue should
be assessed after Yeh further develops the record at an
evidentiary hearing with counsel present.

    Finally, it’s worth noting that granting an evidentiary
hearing in these circumstances not only gives a petitioner a
fair opportunity to develop the record on important issues, it
also prevents undue delay which inevitably results from an
appellate court remanding for a hearing that should have been
granted in the first place. As a matter of justice and
efficiency, a petitioner should be entitled to an evidentiary
hearing when he or she presents a close case of equitable
tolling, as is the case here.           However, I fear the
irreconcilability of the majority’s opinion with the unanimous
opinion in Forbess leaves the law of the Ninth Circuit with
respect to equitable tolling unsettled and in conflict. The
majority’s decision today will place district judges in a
quandary when assessing whether to grant or deny an
evidentiary hearing on a claim of equitable tolling,
particularly when the claim includes an allegation of mental
illness.

   In closing, the majority, denying any hearing or relief,
would minimize Yeh’s circumstances compared to those
12                     YEH V. MARTEL

suffered by Forbess. The majority states, “Yeh’s mental
impairment and his allegations regarding that impairment
come nowhere close to those in Forbess.” Supra Part II.B.
But given the skeletal nature of the record, how can the
majority reach such a conclusion? Such statement carries
little relevance or weight when made by a non-medical
person without the benefit of a developed record. As in
Forbess, the district court and this court should decide the
disposition of Yeh’s claim only after the development of the
record through an evidentiary hearing with appropriate
findings of fact by the district court.

    In closing, the pro se petitioner in this case alleges a lack
of English proficiency, a history of severe mental
impairment, and confinement in administrative segregation
during the period in which he was required to file a federal
habeas petition. If that person, Yeh, is not entitled to an
evidentiary hearing on equitable tolling, then who is?
