CHRISTOPHER STREET V. NEVADA DEP'T. OF CORRECTIONS, No. 16-15554 (9th Cir. 2017)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 06 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CHRISTOPHER ILANDERS STREET, Petitioner-Appellant, No. 16-15554 D.C. No. 3:13-cv-00396-RCJ-VPC v. MEMORANDUM* NEVADA DEPARTMENT OF CORRECTIONS; ATTORNEY GENERAL FOR THE STATE OF NEVADA, Respondents-Appellees. Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding Submitted December 4, 2017** San Francisco, California * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). page 2 Before: KOZINSKI and HURWITZ, Circuit Judges, and KEELEY,*** District Judge. 1. Under AEDPA, to establish an entitlement to equitable tolling of the deadline for filing a federal habeas petition, a petitioner must show that he has been pursuing his rights diligently and that some extraordinary circumstance stood in his way that prevented timely filing. Holland v. Florida, 560 U.S. 631, 649 (2009). A mental impairment only constitutes an extraordinary circumstance if it was so severe that the “petitioner was unable rationally or factually to personally understand the need to timely file, or . . . petitioner’s mental state rendered him unable personally to prepare a habeas petition and effectuate its filing.” Bills v. Clark, 628 F.3d 1092, 1100 (9th Cir. 2010). While incarcerated, Street repeatedly made statements to prison doctors denying that he was experiencing psychological symptoms. The district court correctly found that Street failed to demonstrate the type of severe mental impairment that would justify equitable tolling. 2. Street has presented no evidence of abandonment by counsel within the window of time for which he seeks equitable tolling. The district court correctly denied tolling for this period. *** The Honorable Irene M. Keeley, United States District Judge for the Northern District of West Virginia, sitting by designation. page 3 3. Because Street’s two prior claims to equitable tolling fail, we need not decide whether Street was entitled to tolling between May 14, 2013 and July 22, 2013. The one-year filing window had already closed by that point. AFFIRMED.
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