                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 18 2013

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




                            FOR THE NINTH CIRCUIT



MAR-NIQUE SIMON,                                 No. 11-15909

              Petitioner - Appellant,            D.C. No. 3:09-cv-05859-TEH

  v.
                                                 MEMORANDUM *
DOMINGO URIBE, JR., Warden,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Northern District of California
               Thelton E. Henderson, Senior District Judge, Presiding

                        Argued and Submitted June 10, 2013
                             San Francisco, California

Before: TASHIMA and BYBEE, Circuit Judges, and STAFFORD, Senior District
Judge.**

       Petitioner Mar-Nique Simon appeals the district court’s dismissal of his

habeas corpus petition as untimely. Simon argues that the district court erred in

dismissing his petition because he was entitled to equitable tolling based on an

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable William H. Stafford, Jr., Senior District Judge for the
U.S. District Court for the Northern District of Florida, sitting by designation.
alleged mental impairment. We have jurisdiction under 28 U.S.C. §§ 1291 and

2253. Because we conclude that the record is not sufficiently developed to make a

determination as to whether Simon is entitled to equitable tolling, we reverse and

remand to the district court.

      We have previously held that a petitioner may be entitled to equitable tolling

based on a mental impairment where the mental impairment made it impossible for

the petitioner to timely file a habeas petition on his own and the petitioner was

otherwise diligent in attempting to file a habeas petition. See Bills v. Clark, 628

F.3d 1092, 1096–101 (9th Cir. 2010). Here, however, the district court concluded,

without holding an evidentiary hearing, that Simon failed to show that he suffered

from a mental impairment during the tolling period. Although this finding of fact

was not clearly erroneous based on the evidence that Simon presented, id. at 1096,

Simon was entitled to an evidentiary hearing because he made a “non-frivolous

showing that he had a severe mental impairment during the filing period,” id. at

1100. Since the Young report indicated the existence of “circumstances consistent

with” incompetency, the district court “should . . . have allowed discovery or

ordered expansion of the factual record.” Laws v. Lamarque, 351 F.3d 919, 924

(9th Cir. 2003). As we said in Laws, “more factual development is required before

we can say that [Simon] was or was not precluded from filing his petition by


                                           2
reason of mental impairment several years ago.” Id.; cf. Roberts v. Marshall, 627

F.3d 768, 773 (9th Cir. 2010).

      Accordingly, we reverse the judgment and remand to the district court for

further factual development. On remand, the district court shall order any

discovery, expansion of the record, or evidentiary hearing necessary to determine

whether Simon is entitled to equitable tolling based on a mental impairment. See

Laws, 351 F.3d at 924–25.

      REVERSED and REMANDED.




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