Appeal from the United States District Court for the Central District of California Otis D. Wright, District Judge, Presiding D.C. No. 2:09-cv-01451-ODW-MLG
The opinion of the court was delivered by: N.R. Smith, Circuit Judge:
Argued and Submitted February 6, 2012-Pasadena, California
Before: Dorothy W. Nelson, Diarmuid F. O'Scannlain, and N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith
In this appeal, Joseph Stancle challenges the district court's conclusion that his 28 U.S.C. § 2254 habeas petition is time-barred by the one-year statute of limitations in the Antiterro- rism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2244(d). We confront two issues in determining whether the petition was time-barred. As to statutory tolling, it is only appropriate for the period between two state habeas petitions filed in the same court when the second petition is "limited to an elaboration of the facts relating to the claims in the first petition." See King v. Roe, 340 F.3d 821, 823 (9th Cir. 2003) (per curiam), abrogated on other grounds by Evans v. Chavis, 546 U.S. 189 (2006). Thus, reviewing de novo the district court's dismissal, we affirm the district court's ruling that Stancle is not entitled to statutory gap tolling for the forty-four day period between the denial of his first habeas petition filed in the Superior Court of California, County of Los Angeles (the "superior court") and the filing of his second petition in that same court, because his second petition was not limited to an elaboration of the facts relating to the claims in his first petition. As to equitable tolling, even assuming de novo review, we affirm the district court's ruling that Stancle is not entitled to such tolling. Stancle fails to meet his burden of showing that his "mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including reasonably available access to assistance." See Bills v. Clark, 628 F.3d 1092, 1100 (9th Cir. 2010).
I. FACTS AND PROCEDURAL HISTORY
On January 10, 2007, Stancle pleaded nolo contendre in California Superior Court to one count of continuous sexual abuse of a child (Cal. Penal Code § 288.5(a)) and one count of committing a lewd act upon a child (Cal. Penal Code § 288(a)). He was sentenced to twelve years in prison for the first count and six years for the second, to be served concurrently. Stancle did not appeal. Hence, the judgment became final on March 11, 2007, the date California's sixty-day appeal period lapsed. See Cal. R. Ct. 8.308(a).
On October 12, 2007, Stancle filed a petition for writ of habeas corpus in the superior court. On November 13, 2007, the superior court denied the petition. The superior court's November 13, 2007 minute order stated: "The Court reads and considers the petition for writ of habeas corpus filed November 8, 2007. This date, the petition for writ of habeas corpus is denied." Stancle filed another petition in the same superior court on December 27, 2007 (forty-four days after the first petition was denied).*fn1 The superior court denied the second petition on January 24, 2008. On February 3, 2008, Stancle filed a petition in the California Court of Appeal, which was summarily denied on February 14, 2008. Then, on March 13, 2008, Stancle filed a petition in the California Supreme Court, which was summarily denied on October 16, 2008.
On February 24, 2009, Stancle filed a petition for writ of habeas corpus in the United States District Court for the Central District of California. Ivan Clay (Appellee) filed a motion to dismiss, arguing that the petition was time-barred by the AEDPA one-year statute of limitations. Stancle filed a response. However, the magistrate judge concluded that the motion to dismiss should be granted, because Stancle was not entitled to either statutory "gap" tolling or equitable tolling.
In the magistrate judge's report and recommendation, he recognized that Stancle's federal habeas petition would have been timely if the entire period starting from the filing of the first petition in the superior court (October 12, 2007) to the denial of his last petition by the California Supreme Court (October 16, 2008) tolled the AEDPA statute of limitations. However, citing Biggs v. Duncan, 339 F.3d 1045, 1048 (9th Cir. 2003), the magistrate judge found that Stancle was "not entitled to statutory gap tolling for the 44 days between the two state superior court filings, from November 13, 2007 to December 27, 2007, because the petitions were filed in the same court, rather than being pursued at the next appellate level." Of the 365 days allowed to file the habeas petition, 215 days expired from the March 11, 2007 final judgment date to the filing of the first petition on October 12, 2007, and forty-four days expired between the denial of the first superior court petition and the filing of the second superior court petition. Because the forty-four day period was not eligible for tolling, Stancle was left with 106 days from October 16, 2008 (when the California Supreme Court denied his petition) to file a federal petition-i.e., a deadline of January 30, 2009. Therefore, the magistrate judge concluded that Stancle's February 24, 2009 federal habeas petition filing was untimely pursuant to 28 U.S.C. § 2244(d)(1).
Stancle also argued that his petition should be considered timely, because he is entitled to equitable tolling based on his illiteracy and cognitive challenges. In support of the argument, Stancle included a declaration from his jailhouse lawyer, Jesse Wagner. In the declaration, Wagner stated that he drafted Stancle's petition pursuant to the American Disabilities Act and because Stancle required assistance due to his illiteracy and cognitive challenges. Wagner further stated that, based on his experience with Stancle and his review of educational records and institutional assessments, he had learned that Stancle's educational battery was that of a second grader, and he "is unable to articulate his thoughts in a cognizant manner; asks identical questions repetitively; and appears to be unable to understand general matter of a daily routine." Further, Stancle attached a testing document indicating that his reading, mathematics, and language skills were generally at a second grade level.
Notwithstanding, the magistrate judge concluded that Stan-cle was not entitled to equitable tolling, because he did not show that "his alleged low intelligence prevented him from understanding his legal rights or from filing a timely petition."
The magistrate judge noted that Stancle had only shown "a significant educational deficit, which the Ninth Circuit has held is not a basis for equitable tolling." In sum, the magistrate judge found that Stancle had "not demonstrated that any extraordinary circumstance stood in the way of his filing a timely petition."
The district court accepted and adopted the magistrate judge's report and recommendation in full and ordered the petition dismissed with prejudice. A timely notice of appeal followed. We granted a certificate of appealability for "the following issue: whether the district court properly dismissed appellant's 28 U.S.C. § 2254 petition as untimely, including whether appellant is entitled to (1) statutory 'gap' tolling for the period of time between the superior court's dismissal of appellant's ...