NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

SEP 06 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

JOSE SAUCEDA-CONTRERAS, No. 17-55044

Petitioner-Appellant, D.C. No. 8:15-cv-01117-JAK-PLA v.

M. ELIOT SPEARMAN, Warden, MEMORANDUM*

Respondent-Appellee.

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

Argued and Submitted August 30, 2018 Pasadena, California

Before: WARDLAW, BYBEE, and IKUTA, Circuit Judges.

Jose Sauceda-Contreras filed an untimely federal petition for habeas corpus.

The district court dismissed Sauceda-Contreras’s petition, concluding that he was

not entitled to equitable tolling on the basis of his claimed mental impairment and

that he was not entitled to an evidentiary hearing or a court-appointed expert to

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. develop his equitable tolling claim. Sauceda-Contreras appeals that dismissal. We

have jurisdiction under 28 U.S.C. § 2253. We review de novo the district court’s

dismissal of a habeas petition as untimely, and we review its decisions whether to

hold an evidentiary hearing or appoint an expert for abuse of discretion. Orthel v.

Yates, 795 F.3d 935, 938 (9th Cir. 2015); Walker v. Am. Home Shield Long Term

Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). We affirm.

1. The district court properly held that Sauceda-Contreras was not

entitled to equitable tolling based on his allegation that he suffers from an

unidentified mental impairment. See Bills v. Clark, 628 F.3d 1092, 1099–1100

(9th Cir. 2010). The only evidence Sauceda-Contreras offered in support of his

claimed mental impairment shows at most a lack of legal knowledge and a low

literacy level, conditions that do not justify equitable tolling. See Ford v. Pliler,

590 F.3d 782, 789 (9th Cir. 2009); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th

Cir. 2006); Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986).

2. The district court did not abuse its discretion in dismissing the petition

as untimely without holding an evidentiary hearing. Sauceda-Contreras’s alleged

lack of legal knowledge and low literacy level did not warrant an evidentiary

hearing because those allegations, even if true, would not entitle him to equitable

tolling for the reason identified above. See Roy v. Lampert, 465 F.3d 964, 969 (9th

2 Cir. 2006). And despite multiple requests from the district court, Sauceda-

Contreras failed to support his conclusory assertions with any other evidence

“showing that he had a severe mental impairment during the filing period that

would entitle him to an evidentiary hearing.” Bills, 628 F.3d at 1100; see also

Coleman v. McCormick, 874 F.2d 1280, 1284–85 (9th Cir. 1989) (en banc).

3. The district court did not abuse its discretion in declining to appoint

an expert. Sauceda-Contreras, who has been represented by counsel throughout his

habeas proceedings, bears the burden to justify his request for equitable tolling.

Rasberry, 448 F.3d at 1153. And given his failure to make the requisite threshold

showing that he suffered from a mental impairment during the filing period, Bills,

628 F.3d at 1100, the district court’s decision to forgo the appointment of an expert

was not an abuse of discretion. Cf. Cacoperdo v. Demosthenes, 37 F.3d 504, 510

(9th Cir. 1994) (finding that a habeas petitioner’s “conclusory allegation of

unspecified mental illness” was insufficient to warrant a “psychiatric evaluation to

determine his competency” to stand trial).

4. Because we affirm the district court’s judgment that Sauceda-

Contreras failed to show a mental impairment, we need not address whether he

showed diligence. Orthel, 795 F.3d at 939 n.3.

AFFIRMED.

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