Woodburn

I would affirm, because the issue of equitable tolling on the ground of mental competency was never presented to the district court and is therefore waived. Responding to the state’s position that AED-PA’s one-year statute of limitations had run, Woodburn argued that he was entitled to the benefit of 28 U.S.C. § 2244 (d)(1)(B), which delays commencement of the limitations period until a state-created impediment to filing is removed. Woodburn posited that denial of access to the courts is the state-created impediment that occurred in his ease because he was not provided with access to the new (AED-PA) statute of limitations. He relied on inadequate library cases such as Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir.2000), and Lewis v. Casey, 518 U.S. 343, 116 S.Ct. 2174 , 135 L.Ed.2d 606 (1996), and submitted a statement from a librarian at the Arizona State Prison Complex-Florenee/East Unit, in support. The court held that Woodburn was not in fact denied access to the full text of § 2244, and there was no impediment to timely filing. 1 That should be the end of it.

. The district court denied a certificate of appealability — correctly, because its ruling is not arguable. This…

MEMORANDUM **

Dean Joseph Woodburn appeals from the district court’s denial of his petition for a writ of habeas corpus as untimely. This Court issued a Certificate of Appealability concerning “whether appellant is entitled to equitable tolling of the Antiterrorism and Effective Death Penalty Act’s one-year statute of limitations on the basis of his mental competency.” We vacate and remand for further factual development of Woodburn’s mental incompetence claim.

Petitioner Dean Joseph Woodburn repeatedly alleged that he was incompetent in verified pro se filings. In an affidavit attached to his February 6, 2002 habeas filing, D.C. Doc. 4, Woodburn alleged that he was not competent at the time of his trial, and that his incompetence continued as of the date of the affidavit:

D.C. Doc. 4 at 3-5 (emphasis in original).

In a “Motion for Appointment of Counsel” filed August 27, 2003, Woodburn requested appointed counsel because he “cannot represent himself as he is incompetent under the law.... Mr. Woodburn does not have the expertise nor the competence to proceed on his own.” D.C. Doc. 26 at 1. The pleading was pro se and was signed by Mr. Woodburn. This assertion of incompetence…