Wayne Chick v. Frank Chavez

MEMORANDUM

Petitioner Wayne E. Chick appeals the district court’s decision dismissing his ha-beas petition as untimely. Chick’s petition was filed after the one-year limitations period, 28 U.S.C. § 2244 (d), and the district court rejected Chick’s argument that he was entitled to equitable tolling. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm in part, reverse in part and remand for further development of the record as to Chick’s mental competency and, if necessary, an evidentiary hearing.

“ ‘[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.’ ” Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir.) cert. denied,-U.S. -, 133 S.Ct. 769 , 184 L.Ed.2d 508 (2012) (quoting Holland v. Florida, - U.S. -, 130 S.Ct. 2549, 2562 , 177 L.Ed.2d 130 (2010) (internal quotation marks omitted)). We have held “that where a habeas petitioner can show ‘mental incompetence in fact caused him to fail to meet the AEDPA filing deadline, his delay was caused by an “extraordinary circumstance ...,” and the deadline should be equitably…