NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 1 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNARD LEE DAVIS, No. 15-55561

Petitioner-Appellant, D.C. No. 2:06-cv-04744-JVS-JEM v.

A. J. MALFI, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted December 8, 2017 Pasadena, California

Before: WARDLAW and GOULD, Circuit Judges, and GONZALEZ ROGERS,** District Judge.

Kennard Lee Davis appeals the district court’s dismissal of his federal

habeas corpus petition, which it deemed barred by AEDPA’s one-year statute of

limitations. See 28 U.S.C. § 2244(d)(1). We have jurisdiction under 28 U.S.C. §

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Yvonne Gonzalez Rogers, United States District Judge for the Northern District of California, sitting by designation. 2253, and we vacate and remand for further proceedings.

One principal question presented is whether Davis’s petition was eligible for

statutory tolling. Under 28 U.S.C. § 2244(d)(2), the statute of limitations does not

run while a “properly filed” state habeas petition is pending. To be “properly

filed,” a petition must be timely filed under state law. Curiel v. Miller, 830 F.3d

864, 868 (9th Cir. 2016). California courts apply a “reasonableness” standard to

determine whether a habeas petition was timely filed. Id. Under that standard, a

petition’s timeliness “is measured from the time the petitioner or his or her counsel

knew, or reasonably should have known, of the information offered in support of

the claim and the legal basis for the claim.” In re Robbins, 959 P.2d 311, 317 (Cal.

1998).

Here, the California Supreme Court summarily denied Davis’s petition with

the following citations: “In re Clark (1993) 5 Cal.4th 750; In re Swain (1949) 34

Cal.2d 300, 304; People v. Duvall (1995) 9 Cal.4th 464, 474.” Clark signals

dismissal with prejudice either for lack of timeliness or for an attempt at successive

proceedings after a petition is denied, while Swain and Duvall signal dismissal

without prejudice for failure to plead with specificity. See Curiel, 830 F.3d at 870–

71 (majority opinion); id. at 877 n.3 (Bybee, J., concurring).

Because we conclude that some of Davis’s claims were timely, his petition

warrants statutory tolling. See Campbell v. Henry, 614 F.3d 1056, 1062 (9th Cir.

2 2010). Davis’s state habeas petition, both as originally filed and as supplemented,

raised claims concerning his (1) trial and conviction in May 2002 and (2)

subsequent appeal and appellate representation through April 20, 2004. We

understand the California Supreme Court’s Clark citation to mean that it concluded

that Davis’s unexplained 25-month delay in bringing his trial-related claims

rendered those claims untimely.1 See Evans v. Chavis, 546 U.S. 189, 201 (2006)

(holding that California courts would deem an unexplained 6-month delay to be

unreasonable). But we do not believe Davis’s short delay in bringing his appeal-

related claims was also seen as unreasonable, especially when the California

Supreme Court denied a similar petition just a few months earlier as premature.

Instead, those unsupported claims appear to have been dismissed without prejudice

under Swain/Duvall. Accordingly, Davis’s federal petition warrants statutory

tolling until July 24, 2005—one day before it was filed.

The next question is whether Davis is entitled to an evidentiary hearing to

further develop the record on his equitable tolling claim. We conclude that he is

not. Davis contends that we have already required such a hearing in a prior appeal,

Davis v. Walker, 334 F. App’x 847, 848 (9th Cir. 2009). We disagree. In the prior

appeal, we simply required that the district court hold an evidentiary hearing as to

1 All of the trial-related claims here should have been known at the time of Davis’s conviction. See In re Clark, 855 P.2d 729, 738 n.5 (Cal. 1993). Davis’s appellate counsel did not raise these claims in Davis’s timely direct appeal.

3 Davis’s then-present competency to proceed on his habeas petition pro se. Id. We

did not require a hearing to expand the record on Davis’s past competency to file

such a petition. See id. The district court was well within its direction to deny a

hearing because the record was already “amply developed,” with more than 700

pages of records from the relevant period. Roberts v. Marshall, 627 F.3d 768, 773

(9th Cir. 2010).

The last certified issue is whether Davis is entitled to equitable tolling “due

to court error in dismissing [his 2005 federal habeas action].” Although the district

court certified only one of Davis’s equitable tolling arguments, “it is not arguments

that are certified, it is issues and claims.” Koerner v. Grigas, 328 F.3d 1039, 1049

n.3 (9th Cir. 2003) (citation omitted). We consider whether Davis’s petition could

warrant equitable tolling on any ground supported by the record.

After giving Davis the benefit of statutory tolling, his federal habeas corpus

petition was only one day late. Under our circuit’s stop-clock rule, Davis was

“entitled to use the full one-year statute-of-limitations period.” Grant v.

Swarthout, 862 F.3d 914, 919 (9th Cir. 2017). If Davis shows an entitlement to

tolling for any amount of time during the limitations period, then that time is to be

subtracted from the total number of days that have passed from the date on which

the AEDPA limitations period began to run. See id. at 918. “If, after [the days

4 during a tolled period] are subtracted, less than 365 days have passed,” Davis’s one

day of lateness is excused and his petition is timely. Id.

The district court’s order and magistrate judge’s report and recommendation

recognized that Davis suffered a debilitating mental health crisis from April 19 to

24, 2006, just three months before he filed the detailed 27-page federal habeas

petition the dismissal of which is at issue here. But neither the district court judge

nor the magistrate judge assessed whether Davis’s incapacitation during this six-

day period—which amounted to “extraordinary circumstances” because of Davis’s

mental state—warranted equitable tolling of AEDPA’s statute of limitations under

Bills v. Clark, 628 F.3d 1092, 1099–1100 (9th Cir. 2010).

Because equitable tolling of this period would make Davis’s petition timely

but the district court has made no findings as to Davis’s diligence in filing his

petition, we remand for further factual development solely on the issue of due

diligence of Davis. On remand, the district court should consider, after conducting

an evidentiary hearing if necessary, whether Davis diligently pursued his rights

from the end of his severe mental health crisis through the date of filing his

petition. See In re Milby, 875 F.3d 1229, 1233–34 (9th Cir. 2017); Luna v.

5 Kernan, 784 F.3d 640, 652 (9th Cir. 2015). If he was diligent, then the court

should proceed to the merits of his petition.2

VACATED and REMANDED.

2 We reject Davis’s other equitable tolling arguments, so they need not be revisited on remand. Also, we decline to broaden the certificate of appealability to include Davis’s uncertified claim. Davis contends that “the interests of justice are better served by addressing the merits” of this claim, but that is not AEDPA’s standard. Instead, AEDPA requires that Davis make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Davis has identified no constitutional rights at issue here, let alone made a substantial showing that those rights were violated. See Hiivala v. Wood, 195 F.3d 1098, 1104–05 (9th Cir. 1999) (per curiam). Because appellant is represented by counsel, only counsel may file motions, this court therefore declines to entertain pro se submissions at docket entries 160-163, 168, 169.

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