                                                                             FILED
                            NOT FOR PUBLICATION
                                                                              SEP 18 2015
                     UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


ERIC YLMO SANFORD,                                No. 13-55924

              Petitioner - Appellant,             D.C. No. 2:12-cv-06169-CAS-
                                                  MLG
  v.

J. SOTO,                                          MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                    Christina A. Snyder, District Judge, Presiding

                      Argued and Submitted September 2, 2015
                               Pasadena, California

Before: O’SCANNLAIN, FISHER, and BYBEE, Circuit Judges.

       Eric Sanford filed a federal habeas petition on July 10, 2012, five days after

the one-year filing period afforded to him under 28 U.S.C. § 2244(d) expired.

Accordingly, the district court dismissed his habeas petition as untimely. Sanford

appealed, arguing that he is entitled to equitable tolling of the limitations period



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
due to the misconduct of his attorney and his mental incompetency. We have

jurisdiction under 28 U.S.C. § 2253, and we affirm.

      First, Sanford has not shown that any misconduct on the part of his attorney

was an “‘extraordinary circumstance [that] stood in his way’ and prevented timely

filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005)). Though there was a delay in receiving

his record on direct appeal from his attorney, Sanford had all the materials

necessary to file a federal habeas petition with seven months remaining in his one-

year filing period. Moreover, Sanford has not demonstrated that he “pursu[ed] his

rights diligently” during that seven-month period. Id. (quoting Pace, 544 U.S. at

418). It was not clear error, therefore, for the district court to determine that

attorney misconduct did not cause Sanford’s untimely filing. See Spitsyn v. Moore,

345 F.3d 796, 799 (9th Cir. 2003).

      Second, Sanford’s mental incompetence claim fails the two-part test

established in Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010), to determine when a

petitioner’s mental disabilities warrant equitable tolling. Here, Sanford’s own

correspondence with the lawyer who represented him in his direct appeal indicates

his awareness of the one-year federal filing deadline, and his successful filing of

three state habeas petitions during the relevant time period demonstrates that he


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could capably effectuate the filing of a federal habeas petition if he so chose. See

id. at 1099–100. As above, his seven-month delay in filing his first state habeas

petition marks a lack of diligence. See id. at 1100. The district court did not

clearly err in denying equitable tolling on the basis of mental incompetency. Id. at

1096.

        Finally, the district court did not abuse its discretion by denying Sanford’s

request for a further evidentiary hearing. Roberts v. Marshall, 627 F.3d 768, 773

(9th Cir. 2010) (holding that where the record “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”).

        AFFIRMED.




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