David Henderson v. Terri Gonzalez

MEMORANDUM

California state prisoner David Henderson appeals the district court’s dismissal of his untimely 28 U.S.C. § 2254 habeas petition. Henderson contends he was entitled to equitable tolling due to his mental impairment. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm the district court’s decision.

The dismissal of a habeas petition as time-barred is reviewed de novo. Bills v. Clark, 628 F.3d 1092, 1096 (9th Cir.2010). Henderson’s claim fails because he did not show that his impairment was an “extraordinary circumstance” that made it impossible to meet the filing deadline. See id. at 1099-1100 . The evidence “refute[s] a claim of impairment so debilitating” as to be the but-for cause of Henderson’s delay. Yow Ming Yeh v. Martel, 751 F.3d 1075, 1078 (9th Cir.) (mental impairment was not “so severe” where petitioner “repeatedly •sought administrative and judicial remedies, and ... showed an awareness of basic legal concepts”), cert. denied sub nom. Yow Ming Yeh v. Biter, — U.S.-, 135 S.Ct. 486 , 190 L.Ed.2d 367 (2014). Henderson’s mental impairment was not comparable to the severity of impairment, described in Forbess v. Franke, 749 F.3d 837, 840-41…