                                                                             FILED
                            NOT FOR PUBLICATION                               AUG 24 2011

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




                            FOR THE NINTH CIRCUIT



BRIAN KEITH DENT,                                 No. 08-56730

              Petitioner - Appellant,             D.C. No. 2:08-cv-05255-JFW-AN

  v.
                                                  MEMORANDUM *
MIKE KNOWLES, Warden (A),

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     John F. Walter, District Judge, Presiding

                        Argued and Submitted August 1, 2011
                                Pasadena, California

Before: REINHARDT and BERZON, Circuit Judges, and PANNER, Senior
District Judge.**

       Brian Keith Dent, a California state prisoner, appeals the district court’s

denial of his 28 U.S.C. § 2254 petition as time-barred. We reverse and remand for

further proceedings.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Owen M. Panner, Senior District Judge for the U.S.
District Court for Oregon, Portland, sitting by designation.
      Nearly four years after his conviction became final, Dent first sought habeas

relief in state court. Over the next five years, Dent underwent multiple rounds of

state habeas review. In 2008, Dent filed a federal habeas petition alleging his

mental incompetence justified equitable tolling. The district court sua sponte

dismissed the petition as time-barred.

      The dismissal of a habeas petition as time-barred is reviewed de novo.

Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). A district court’s decision not

to conduct an evidentiary hearing is reviewed for abuse of discretion. Roy v.

Lampert, 465 F.3d 964, 968 (9 th Cir. 2006).

      Equitable tolling may toll AEDPA’s one-year filing deadline. Holland v.

Florida, 130 S.Ct. 2549, 2560 (2010). Mental incompetency is an “extraordinary

circumstance beyond the prisoner’s control” that may justify equitable tolling.

Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003) (internal citation omitted).

      Dent did not have the burden of persuasion at the early stage of merely filing

the habeas petition. Laws, 351 F.3d at 924. Rather, at the filing stage, there need be

only “circumstances consistent with petitioner’s petition . . . under which he would

be entitled to a finding of an ‘impediment’ under § 2244(d)(1)(B) or to equitable

tolling for further factual development to be required.” Id. (internal quotation




                                           2
marks and citation omitted). The court construes pro se habeas filings liberally.

Roy, 465 F.3d at 970.

      Proceeding pro se, Dent attached a sworn declaration and roughly 70 pages

of documentation, including medical records, in support of his petition. Dent

included a psychologist’s report stating Dent’s IQ of 56 placed Dent in “the

Mentally Retarded range of intellectual ability.” Dent submitted a November 11,

1999 progress note written by a Department of Corrections psychiatrist stating:

      On mental status examination he is barely oriented. He does not know
      the year or the date or the day of the week. He cannot make simple
      change; $1.65 from $2.00 is $.87. He is unable to deal with
      similarities or abstractions. He cannot do three dimensional figures.
      His judgment is impaired. He has some insight. His affect is flat. He
      has command hallucinations telling him to do things. The voices talk
      about me, he says. His memory is clearly impaired. He cannot
      remember any of four items in five minutes. He is seen to be an
      organic mood disorder secondary to brain injury with dementia.

      Considering Dent proceeded pro se, the medical records and uncontested

declarations Dent submitted constitute a good-faith showing of mental

incompetence requiring the district court to further develop the record. Laws, 351

F.3d at 924.

      In dismissing Dent’s petition, the district court noted a March 30, 1998

court-ordered competency evaluation concluded Dent was malingering. Dent,

however, requested equitable tolling beginning in November 1999. Especially


                                          3
considering Dent proceeded pro se, the result of Dent’s early 1998 competency

examination has little bearing on Dent’s competency over 18 months later. Laws,

351 F.3d at 923. The district court also concluded that because Dent had no case

pending prior to 2003, Dent was not entitled to equitable tolling. The equitable

tolling determination, however, does not depend on whether a petitioner has a

claim pending.

      Finally, Dent could be entitled to statutory tolling during his subsequent

rounds of state habeas proceedings. 28 U.S.C. § 2242(d)(2). Dent’s additional state

proceedings, combined with the equitable tolling determination, are relevant to the

federal statutory tolling issue. See Evans v. Chavis, 546 U.S. 189, 199-200 (2006)

(California’s “reasonable time” habeas standard requires federal courts to

determine whether petitioner’s filing delays were reasonable, and thus timely).

      The district court erred in placing the burden of persuasion on a pro se

petitioner at the pleading stage of a habeas petition. Laws, 351 F.3d at 924.

Because Dent, proceeding pro se, made a good-faith allegation that would, if true,

entitle him to equitable tolling, the district court abused its discretion by sua sponte

dismissing the petition prior to further developing the factual record. Id. at 923-24

(remanding for the district court to “order such discovery, expansion of the record,

or evidentiary hearing as is necessary to determine how much, if any,” of the


                                           4
relevant period should be equitably tolled due to petitioner’s mental

incompetence). Dent’s court-appointed counsel will continue to represent Dent in

the district court on remand.

      REVERSED AND REMANDED.




                                          5
