Schneider

Opinion by Judge WALLACE; Partial Concurrence and Partial Dissent by Judge NOONAN.

OPINION

Petitioner-Appellant Ralph Schneider seeks review pursuant to a certifícate of appealability of the denial of his petition for a writ of habeas corpus. Schneider petitioned for habeas corpus in the United States District Court for the District of Nevada under 28 U.S.C. § 2254 . His First Amended Petition stated eight grounds for relief. The district court denied the petition entirely, but granted a certificate of appealability on the following issues: (1) the rejection of Ground 1 on the merits; (2) the holding that Grounds 3, 4, 5, and 6 of the amended petition do not relate back to the original petition; and (3) the holding that petitioner’s mental condition did not excuse his procedural default on Grounds 2 and 7. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. Schneider also asks us to consider whether the district court erred in refusing to hold an evidentiary hearing on Ground 1. We decline to expand the certificate of appeal-ability and we affirm.

I.

On December 12, 1996, a jury in Nevada state court found Schneider guilty of robbery with a deadly weapon, false…

concurring and dissenting:

I concur in the opinion of the court, clear and convincing as it is in most respects, except as to one vital point as to which I dissent: the tolling of the time for filing for post-conviction relief.

The district court found that Schneider’s “mental health conditions constituted extraordinary circumstances standing in the way of his filing a timely federal petition, such that he likely would have been unable to file a timely federal petition due to those circumstances.” The district court found further: Schneider “would have likely been unable to file a timely federal petition with these conditions unless another individual actively pursued the multiple required steps for him. Schneider’s mental health conditions, in particular, made it unlikely that he would be able to maintain the focus, pace, consistent direction, and organizational ability required to complete the multiple steps required to prepare a post-conviction petition.” In the eight years in which he did nothing, there was no other person to assist him. He was, the district court concluded, incapable of filing a federal petition.

Why, in the same time period, was he capable of filing a…

Franny A. Forsman, Federal Public Defender, and Paul G. Turner, Assistant Federal Public Defender, Las Vegas, NV, for the petitioner-appellant.

Daniel M. Roche, Deputy Attorney General, Carson City, NV, for the respondents-appellees.

Before: J. CLIFFORD WALLACE, JOHN T. NOONAN, and MILAN D. SMITH, JR., Circuit Judges.

Opinion by Judge WALLACE; Partial Concurrence and Partial Dissent by Judge NOONAN.

WALLACE, Senior Circuit Judge:

Petitioner-Appellant Ralph Schneider seeks review pursuant to a certificate of appealability of the denial of his petition for a writ of habeas corpus. Schneider petitioned for habeas corpus in the United States District Court for the District of Nevada under 28 U.S.C. § 2254 . His First Amended Petition stated eight grounds for relief. The district court denied the petition entirely, but granted a certificate of appealability on the following issues: (1) the rejection of Ground 1 on the merits; (2) the holding that Grounds 3, 4, 5, and 6 of the amended petition do not relate back to the original petition; and (3) the holding that petitioner's mental condition did not excuse his procedural default on Grounds 2 and 7. We have jurisdiction pursuant to…