FILED

NOT FOR PUBLICATION

MAR 09 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CRISTOBAL MIGUEL GONZALEZ- No. 17-35066

AGUILERA,

D.C. No. 2:14-cv-00325-SI Petitioner-Appellant,

v. MEMORANDUM*

MARK NOOTH,

Respondent-Appellee.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Submitted March 5, 2018** Portland, Oregon

Before: N.R. SMITH and HURWITZ, Circuit Judges, and CURIEL,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Gonzalo P. Curiel, United States District Judge for the Southern District of California, sitting by designation. Cristobal Gonzalez-Aguilera appeals the district court’s dismissal of his

federal habeas petition as time barred under the one-year limitations period of 28

U.S.C. § 2244(d)(1). Gonzalez-Aguilera concedes untimeliness, but argues he is

entitled to equitable tolling because a mental impairment prevented him from filing

the petition on time and he was unable to access legal materials during part of his

incarceration. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

1. We review the district court’s findings regarding mental competency for

clear error. Bills v. Clark, 628 F.3d 1092, 1096 (9th Cir. 2010). A petitioner is

entitled to equitable tolling due to mental impairment when the petitioner meets a

two-part test:

(1) First, a petitioner must show his mental impairment was an “extraordinary circumstance” beyond his control, by demonstrating the impairment was so severe that either

(a) petitioner was unable rationally or factually to personally understand the need to timely file, or

(b) petitioner’s mental state rendered him unable personally to prepare a habeas petition and effectuate its filing.

(2) Second, the petitioner must show diligence in pursuing the claims to the extent he could understand them, but that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including reasonably available access to assistance.

Id. at 1099-1100 (citation omitted).

2 The district court did not commit clear error in finding that Gonzalez-

Aguilera’s mental impairment did not prevent him from timely filing his habeas

petition. In Yow Ming Yeh v. Martel, we held that the petitioner was not entitled to

equitable tolling—despite his mental impairment—because he “repeatedly sought

administrative and judicial remedies, and throughout the[] proceedings showed an

awareness of basic legal concepts.” 751 F.3d 1075, 1078 (9th Cir. 2014). The

district court found that Gonzalez-Aguilera’s mental impairment did not prevent a

timely filing, because he was able to:

(1) file four state habeas corpus actions and one federal civil rights case during the time the AEDPA’s statute of limitations was running; (2) request counsel and file his first federal habeas corpus case in 2011, a filing that was more than “minimally adequate;” and (3) timely file for state collateral relief in the form of a [post-conviction relief] action challenging his underlying convictions on the basis of ineffective assistance of counsel.

In addition, the district court found that Gonzalez-Aguilera’s temporary lack of

access to legal materials did not prevent a timely filing “especially where he was

able to file five other lawsuits in state and federal court.”

2. Gonzalez-Aguilera asserts that he was entitled to an evidentiary hearing. “A

district court’s decision to grant an evidentiary hearing to review the factual basis

of an equitable tolling argument is reviewed for abuse of discretion.” Orthel v.

Yates, 795 F.3d 935, 938 (9th Cir. 2015). “District courts have limited resources

3 (especially time), and to require them to conduct further evidentiary hearings when

there is already sufficient evidence in the record to make the relevant determination

is needlessly wasteful.” Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010).

Gonzalez-Aguilera argues that “[t]o the extent that [we are] unable to determine

why [the other] state and federal cases were dismissed,” we should remand for an

evidentiary hearing to further develop the record. However, the critical point is that

those cases were filed during the limitations period, not why they were dismissed.

Gonzalez-Aguilera was given a full opportunity to submit briefing and exhibits

regarding his equitable tolling claim. Thus, the district court did not abuse its

discretion when it did not hold an evidentiary hearing.

AFFIRMED.

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