                                                                           FILED
                     UNITED STATES COURT OF APPEALS                         FEB 18 2010

                                                                       MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                        U.S . CO U RT OF AP PE A LS




EDWARD ONTIVEROS,                                No. 08-17317

              Petitioner - Appellant,            D.C. No. 2:07-cv-01441-JAM-
                                                 DAD
  v.                                             Eastern District of California,
                                                 Sacramento
R. J. SUBIA,

              Respondent - Appellee.             ORDER


Before: NOONAN, HAWKINS and M. SMITH, Circuit Judges.

       The memorandum disposition filed on January 28, 2010 is hereby

withdrawn. A new memorandum disposition is filed concurrently herewith.

       Appellant Ontiveros filed a pro se petition for panel rehearing on February 8,

2010, which was deficient because he has appointed counsel. That petition for

panel rehearing is hereby rendered moot.
                                                                              FILED
                            NOT FOR PUBLICATION                               FEB 18 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



EDWARD ONTIVEROS,                                No. 08-17317

              Petitioner - Appellant,            D.C. No. 2:07-cv-01441-JAM-
                                                 DAD
  v.

R. J. SUBIA,                                     MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                      Argued and Submitted January 15, 2010
                            San Francisco, California

Before: NOONAN, HAWKINS and M. SMITH, Circuit Judges.

       Edward Ontiveros, a California state prisoner, sought federal habeas relief to

challenge the parole board's decision to deny him parole. The district court

dismissed the case, finding that the one-year deadline for filing under the

Antiterrorism and Effective Death Penalty Act (AEDPA) had passed. See 28



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. y 2244(d)(1). Ontiveros claims that his petition was filed within the one-

year deadline because (1) the factual predicate date should not begin until after the

30-day period for gubernatorial review has elapsed, and (2) his claim was

'pending,' and thus tolled, see y 2244(d)(2), for the period between the factual

predicate date and his initial state filing. Ontiveros also claims that he is entitled to

equitable tolling. This court has jurisdiction under 28 U.S.C. yy 1291, 2253. As

the facts and procedural history are familiar to the parties, we do not recite them

here except as necessary to explain our decision. We affirm in part and reverse in

part.1

I.       Statutory Tolling

         A.    Factual Predicate Date

         The district court found that Ontiveros filed his petition 113 days after the

one-year limitations period had ended. Thus, even assuming that the factual

predicate date was defined as starting after the 30-day period for gubernatorial

review had elapsed, Ontivoros's claim would still be untimely (by 83 days). We

therefore decline to reach this issue.


         1
         Ontiveros's statutory tolling claims are not waived. See Laws v.
Lamarque, 351 F.3d 919, 924 (9th Cir. 2003) (holding that pro se petitions must be
construed liberally); Bolµer v. Comm'r of Internal Revenue, 760 F.2d 1039, 1042
(9th Cir. 1985) (discussing exceptions to waiver rule for issues that are purely legal
or that arise while appeal is pending).

                                             2
       B.    Tolling During the Pre-Filing Period

       Ontiveros argues that his claim was 'pending,' for tolling purposes, see y

2244(d)(2), during the period between the board's final decision and Ontiveros's

initial habeas filing in state superior court (the pre-filing period). This pre-filing

period was 329 days long. If the statute of limitations had been tolled during this

period, Ontiveros's federal habeas petition would have been timely under AEPDA.

       AEDPA provides for tolling while a prisoner attempts to exhaust his claims

in state court, stating: 'The time during which a properly filed application for

State post-conviction or other collateral review with respect to the pertinent

judgment or claim is pending shall not be counted toward any period of limitation

under this subsection.' y 2244(d)(2). Ontiveros presents cogent arguments for why

tolling during the pre-filing period might be fair, especially in the context of parole

decision challenges. However, we find that the plain language of y 2244(d)(2)

does not permit tolling during the pre-filing period, as it requires that the state

petition be both 'properly filed' and 'pending.' Although Ontiveros's state

petition was eventually properly filed and pending, it could not be characterized as

such during the pre-filing period.

       Furthermore, we have previously only permitted tolling 'from the time the

first state habeas petition is filed until the California Supreme Court rejects the


                                            3
petitioner's final collateral challenge.' Nino v. Galaza, 183 F.3d 1003, 1006 (9th

Cir. 1999) (footnote omitted); see also Redd v. McGrath, 343 F.3d 1077, 1084-85

(9th Cir. 2003) (holding that the limitations period begins to run on the day after

the board's parole decision becomes final). We reject Ontiveros's argument that In

re Burdan, 86 Cal. Rptr. 3d 549 (Ct. App. 2008), read in conjunction with Evans v.

Chavis, 546 U.S. 189, 193 (2006), justifies tolling during the pre-filing period

simply because his initial state petition was timely by California standards.

Although 'the timeliness of a petition for post-conviction relief filed in state court

is governed by state law[,] . . . the circumstances under which a state petition will

be deemed 'pending' for purposes of 28 U.S.C. y 2244(d)(2) is a federal question.'

Welch v. Carey, 350 F.3d 1079, 1080 (9th Cir. 2003) (en banc). We hold that

Ontiveros was not entitled to statutory tolling during the pre-filing period.

II.   Equitable Tolling

      Normally, Ontiveros's equitable tolling claim would be waived for his

attorney's failure to raise it in his opening brief.2 See Fed. R. App. P. 28(a)(9)(A);

see also Ind. Towers of Wash. v. Washington, 350 F.3d 925, 929-30 (9th Cir.

2003). However, prior to having counsel appointed, Ontiveros filed a pro se



      2
        The district court found, and we agree, that Ontiveros properly raised an
equitable tolling claim in the district court.

                                           4
Opening Brief that remains part of our record. In that pro se document, Ontiveros

claims that his state habeas filing was delayed because he is 'mentally

incompetent,' and has a 'documented mental handicap.' Throughout the record he

also references prison locµ-downs that prevented timely filing. These claims,

liberally construed, are sufficient to preserve his equitable tolling claim on appeal.

       To qualify for equitable tolling, a litigant 'bears the burden of establishing

two elements: (1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way.' Pace v. DiGuglielmo, 544 U.S. 408,

418 (2005). The district court found that Ontiveros was not entitled to equitable

tolling because he 'waited almost a year before filing his first state habeas

petition.' This restates the µnown fact that Ontiveros filed late, but does not

properly determine whether he pursued his rights diligently. The district court

failed to investigate whether Ontiveros diligently attempted to file his state

petition.

       The district court also found that Ontiveros had not demonstrated that

extraordinary circumstances prevented him from timely filing. The court cites case

law holding that a lacµ of legal sophistication or temporary delays in prison law

library access are not, by themselves, grounds for equitable tolling. However, the

district court did not address Ontiveros's claim that his documented learning


                                           5
disability caused his late filing. We have previously held that ''mental

incompetency justifies equitable tolling' of the AEDPA statute of limitations.'

Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003) (citing Calderon v. U.S. Dist.

Court (Kelly), 163 F.3d 530, 541 (9th Cir. 1998) (en banc), overruled in part by

Woodford v. Garceau, 538 U.S. 202, 206 (2003)). The district court also failed to

determine the extent to which the prison locµ-down precluded Ontiveros's access

to the law library or to his legal files.

       We therefore reverse the district court's dismissal of the petition and remand

for factual development, including an evidentiary hearing, with regard to

Ontiveros's equitable tolling claim. See Laws, 351 F.3d at 923-925. If the district

court determines that equitable tolling is warranted, it should proceed to the merits.

Otherwise, it should dismiss the petition as untimely.

       Each party shall bear its own costs.




       AFFIRMED in part; REVERSED and REMANDED in part.




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