FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


THOMAS JASON MILAM, AKA                  No. 19-55213
Thomas J. Milam,
              Petitioner-Appellant,        D.C. No.
                                        2:11-cv-04745-
                 v.                       JAK-MRW

KELLY HARRINGTON, Warden,
            Respondent-Appellee.           OPINION

      Appeal from the United States District Court
         for the Central District of California
      John A. Kronstadt, District Judge, Presiding

         Argued and Submitted March 4, 2020
                Pasadena, California

                 Filed March 25, 2020

   Before: A. Wallace Tashima, Andrew D. Hurwitz,
       and Michelle T. Friedland, Circuit Judges.

              Opinion by Judge Hurwitz
2                    MILAM V. HARRINGTON

                          SUMMARY *


                         Habeas Corpus

   The panel vacated the district court’s judgment
dismissing California state prisoner Thomas Milam’s habeas
corpus petition as untimely, and remanded for further
proceedings.

    The panel held that the district court erred by
categorically concluding that Milam’s retention of counsel
meant that his claimed severe mental illness could not have
been an extraordinary circumstance that prevented him from
complying with AEDPA’s time limits. The panel explained
that if Milam’s impairment prevented the monitoring of his
state habeas lawyer, and if monitoring would have prevented
state habeas counsel from waiting so long between filings,
Milam’s impairment could have been a but-for cause of the
untimely filing.

    The panel also held that the district court applied the
wrong legal standard in evaluating whether state habeas
counsel’s misconduct supported equitable tolling. Because
the district court erroneously thought that true abandonment
by counsel was required, it did not consider whether
counsel’s misconduct qualified as an extraordinary
circumstance under all the facts of the case.

    The panel remanded for the appropriate analysis.



    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                   MILAM V. HARRINGTON                        3

                         COUNSEL

Michael T. Drake (argued), Deputy Federal Public
Defender; Amy M. Karlin, Federal Public Defender; Federal
Public Defender’s Office, Los Angeles, California; for
Petitioner-Appellant.

Shira Seigle Markovich (argued), Deputy Attorney General;
Stephanie C. Brenan, Supervising Deputy Attorney General;
Lance E. Winters, Senior Assistant Attorney General;
Xavier Becerra, Attorney General; Office of the Attorney
General, Los Angeles, California; for Respondent-Appellee.


                          OPINION

HURWITZ, Circuit Judge:

     Thomas Milam’s family retained counsel to represent
Milam in his state habeas corpus proceedings. That lawyer
filed three unsuccessful petitions in the California courts, but
the long delays between the filings left Milam ineligible to
claim statutory tolling for much of the one-year statute of
limitations for filing a 28 U.S.C. § 2254 habeas petition.
When Milam filed his federal petition, the state objected to
it as untimely, and Milam sought equitable tolling, claiming
both severe mental impairment and that state habeas
counsel’s misconduct caused the untimely federal filing.
The district court concluded that because Milam was
represented by retained counsel during the state habeas
process, any mental impairment during that period was
“irrelevant” to equitable tolling. And the district court
concluded that any misconduct of state habeas counsel did
not warrant equitable tolling because it did not amount to
“abandonment.”
4                      MILAM V. HARRINGTON

     We hold that the district court erred in its refusal to
consider whether Milam’s claimed impairment was the
cause of the untimeliness of the federal filing, despite his
representation by state habeas counsel, and that the district
court applied the wrong legal standard in evaluating whether
state habeas counsel’s misconduct supported equitable
tolling. We therefore vacate the district court’s dismissal of
the § 2254 petition and remand for further proceedings.

                                     I

    Milam is serving a life sentence for various California
state convictions, all of which became final on July 29, 2008.
In August 2007, Milam’s mother hired an attorney to
represent him in state habeas proceedings. That attorney
filed Milam’s first state petition for habeas corpus in Los
Angeles Superior Court on October 15, 2008, 78 days after
Milam’s conviction became final. The petition was denied
on the merits on December 22, 2008. On August 11, 2009—
232 days later—the state habeas lawyer filed an “essentially
identical” second habeas petition with the California Court
of Appeal. That petition was denied on the merits on
September 9, 2009. On December 14, 2009—96 days
later—the state habeas lawyer filed another “essentially
identical” habeas petition in the California Supreme Court,
which summarily denied it on June 23, 2010. The delay
between the state filings left Milam ineligible for statutory
“gap tolling” of the one-year federal statute of limitations
under 28 U.S.C. § 2244(d)(2) for the period after the denial
of the Superior Court petition. See Stewart v. Cate, 

, 935 (9th Cir. 2014). 1


    1
       Moreover, Milam’s state supreme court petition could not give rise
to statutory tolling because it was filed after the one-year federal deadline
                       MILAM V. HARRINGTON                                5

    In February 2011, Milam’s family retained new counsel
to represent him in federal habeas proceedings. That
attorney filed a § 2254 petition on June 3, 2011, 1039 days
after Milam’s state convictions had become final. The state
moved to dismiss the motion as untimely under 28 U.S.C.
§ 2244(d)(1). Milam’s federal habeas counsel did not file an
opposition, and the petition was dismissed in May 2012.

     In 2018, the district court granted Milam relief from the
2012 judgment under Federal Rule of Civil Procedure Rule
60(b), citing “strong proof of attorney abandonment by the
Federal Habeas Lawyer.” 2 Milam then sought equitable
tolling for the period between the denial of his first state
habeas petition and retention of federal counsel, claiming
that during this period “his mental impairment combined
with the ineffective assistance of his [state habeas] counsel
made it impossible to meet the filing deadline for his federal
habeas petition.” 3 Milam submitted an expert report opining
that Milam did not know at any relevant time what was
required for a timely habeas filing. The expert further
opined:

           Even with the assistance of others, [Milam]
           does not possess the capacity to understand
           what is required of him. He would be entirely

had passed. See Ferguson v. Palmateer, 

, 823 (9th Cir.
2003).

    2
        Federal habeas counsel has since been disbarred.

    3
       Milam does not seek, nor is he entitled to, equitable tolling for the
period between the dates his state convictions became final and his first
state habeas petition was filed. There is no dispute that Milam qualifies
for statutory tolling for the 68-day period during which his first state
habeas petition was pending.
6                  MILAM V. HARRINGTON

       dependent on others to act on his behalf to
       review, understand, complete and submit the
       necessary legal paperwork.

    A magistrate judge issued an order suggesting that
Milam’s “mental health issues [were] irrelevant to the
equitable tolling because Petitioner was represented by an
attorney during his incarceration.” But the magistrate judge
asked for supplemental briefing about whether the state
attorney’s “role in the state habeas proceedings could
properly constitute attorney abandonment under Ninth
Circuit law.” After receiving that briefing, the magistrate
judge recommended denial of equitable tolling. He again
stated that “proof of Petitioner’s mental and psychological
problems is irrelevant to this analysis,” because retaining “a
lawyer to represent him in state court habeas proceedings
meant that his developmental issues were no impediment to
pursuing habeas relief.” And, the judge recommended that
because the state habeas lawyer’s misconduct was not “true
‘abandonment’ under Supreme Court and Ninth Circuit
authority,” it could not support equitable tolling. The district
court adopted the magistrate judge’s report and
recommendation and dismissed Milam’s petition as
untimely, but granted a certificate of appealability.

                              II

    “The dismissal of a petition for writ of habeas corpus as
time-barred is reviewed de novo.” Spitsyn v. Moore,

, 799 (9th Cir. 2003). “If the facts underlying
a claim for equitable tolling are undisputed, the question of
whether the statute of limitations should be equitably tolled
is also reviewed de novo. Otherwise, findings of fact made
by the district court are to be reviewed for clear error.”

                   MILAM V. HARRINGTON                        7

                              III

    “A habeas 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.’” Fue v. Biter, 

, 653 (9th Cir. 2016) (en banc) (quoting Holland v.
Florida, 

, 649 (2010)). This “exercise of a
court’s equity powers must be made on a case-by-case basis”
and “enables courts to meet new situations that demand
equitable intervention, and to accord all the relief necessary
to correct particular injustices.” 

–
50 (cleaned up). The petitioner “bears the burden of
showing that this extraordinary exclusion should apply to
him.” Miranda v. Castro, 

, 1065 (9th Cir.
2002).

    In seeking equitable tolling, Milam contended that his
late federal filing was caused by mental impairment and
attorney misconduct. The district court deemed Milam’s
mental impairment “irrelevant” because he had counsel
during the state habeas proceedings. It also concluded that
state habeas counsel’s misconduct could not support
equitable tolling because it fell short of “abandonment.” The
district made two errors of law in that analysis.

                               A

   To obtain equitable tolling because of mental
impairment:

   (1) First, a petitioner must show his mental
       impairment      was   an    “extraordinary
       circumstance” beyond his control by
       demonstrating the impairment was so severe
       that either
8                 MILAM V. HARRINGTON

       (a) petitioner was unable rationally or
           factually to personally understand the
           need to timely file, or

       (b) petitioner’s mental state rendered him
           unable personally to prepare a habeas
           petition and effectuate its filing.

    (2) Second, the petitioner must show diligence in
        pursuing the claims to the extent he could
        understand them, but that the mental
        impairment made it impossible to meet the
        filing deadline under the totality of the
        circumstances,       including    reasonably
        available access to assistance.

Bills v. Clark, 

, 1099–1100 (9th Cir. 2010)
(cleaned up). Equitable tolling for a mental impairment does
not “require a literal impossibility,” but instead only “a
showing that the mental impairment was ‘a but-for cause of
any delay.’” Forbess v. Franke, 

, 841 (9th Cir.
2014) (quoting 

).

    The “availability of assistance is an important element to
a court’s diligence analysis,” but we have stressed that it is
only “part of the overall assessment of the totality of
circumstances that goes into the equitable determination.”

. Even when legal assistance is
available, “a petitioner’s mental impairment might justify
equitable tolling if it interferes with the ability . . . to
cooperate with or monitor assistance the petitioner does
secure.”

.
   The district court erred by categorically concluding that
Milam’s retention of counsel meant that his “mental illness
could not have been an extraordinary circumstance that
                   MILAM V. HARRINGTON                         9

prevented him from complying with AEDPA’s time limits.”
As Bills expressly notes, equitable tolling for mental
impairment is available in “myriad circumstances,”
including cases with petitioners “employing counsel.”
 Id.
at 1099. 
“The relevant question is: Did the mental
impairment cause an untimely filing?”
 Id. at 1100 
n.3. The
fact that a petitioner was represented by counsel, while
relevant to the analysis, does not categorically resolve the
ultimate question. If Milam’s impairment prevented the
monitoring of his state habeas lawyer, and if monitoring
would have prevented state habeas counsel from waiting so
long between filings, Milam’s impairment could have been
a but-for cause of the untimely federal filing. See 
Forbess,
749 F.3d at 841
.

     In refusing to treat the retention of counsel during the
relevant period as automatically foreclosing an impaired
petitioner’s claim to equitable tolling, Bills is consistent with
the approach taken by our sister Circuits. In Riva v. Ficco,
for example, the First Circuit faulted a district court’s
“failure to consider whether the counseled filings enjoyed
the petitioner’s effective participation” and remanded “for
further development of the record with a view toward
determining whether the petitioner’s mental illness so
severely impaired his ability effectively to pursue legal
relief, either on his own behalf or through counsel.”
615 F.3d 35
, 43–44 (1st Cir. 2010). The Sixth Circuit has
taken a similar approach. See Stiltner v. Hart, 657 F. App’x
513, 523–26 (6th Cir. 2016) (citing Bills and awarding
equitable tolling to a petitioner unable “to monitor the legal
assistance provided for him by a fellow prisoner or an
attorney to make sure that they met the relevant deadline”).
Moreover, Bills is consistent with our treatment of equitable
tolling in other contexts. See Stoll v. Runyon, 
165 F.3d 1238
,
1242 (9th Cir. 1999) (awarding equitable tolling to Title VII
10                  MILAM V. HARRINGTON

plaintiff whose “mental illness . . . precluded her from
exercising an agency relationship with the attorney who
handled her EEOC case”).

    In holding that the district court erred when it refused to
consider evidence of Milam’s mental impairment simply
because he had counsel during the periods at issue, we do
not suggest that Milam is entitled to equitable tolling without
a further showing. Even if Milam suffered from a mental
impairment while represented by state habeas counsel,
equitable tolling requires that the impairment be a “but-for”
cause of his untimely federal filing. See 
Forbess, 749 F.3d
at 841
. Milam claims that but for that impairment, he would
have monitored state habeas counsel’s filings to be sure that
his federal habeas rights were preserved. The district court
never addressed either whether Milam was actually impaired
or, if so, whether that impairment caused the untimely
federal filing. “Mindful of the Supreme Court’s observation
that ‘often the exercise of a court’s equity powers must be
made on a case-by-case basis,’ we find it appropriate for the
district court in the first instance to apply the facts of the case
to the legal standards we set forth today.” 
Bills, 628 F.3d at
1101 
(quoting 
Holland, 560 U.S. at 649
–50).

                                B

    Equitable tolling may also be justified because of
“serious instances of attorney misconduct.” 
Holland, 560
U.S. at 652
. But, “a garden variety claim of excusable
neglect, such as a simple ‘miscalculation’ that leads a lawyer
to miss a filing deadline, does not warrant equitable tolling.”

Id. at 651–52 
(cleaned up). Merely ineffective performance
of state post-conviction counsel does not give rise to
equitable tolling. 
Miranda, 292 F.3d at 1067
–68.
                   MILAM V. HARRINGTON                      11

    The district court concluded that state habeas counsel’s
misconduct was insufficient to warrant equitable tolling
because it was not “true ‘abandonment’ under Supreme
Court and Ninth Circuit authority.” We have stressed,
however, that equitable tolling can be “based on a range of
attorney misconduct not limited to abandonment.” Luna v.
Kernan, 
784 F.3d 640
, 648 (9th Cir. 2015). Because the
district court thought abandonment was required, it did not
consider whether Milam’s state habeas counsel’s
misconduct qualified as an “extraordinary circumstance”
under all the facts of this case. We therefore remand for the
appropriate analysis.

                              IV

     The state argues that even if Milam obtains all the
equitable tolling he seeks, his federal petition would still be
untimely. We disagree. Milam’s federal habeas petition was
filed 1039 days after his state conviction became final, so he
must obtain at least 674 days of tolling for his petition to be
timely. See 28 U.S.C. § 2244(d)(1); Corjasso v. Ayers,
278 F.3d 874
, 878 (9th Cir. 2002) (“AEDPA allows a
petitioner just 365 days to complete the entire process of
filing a fully-exhausted federal habeas petition.”); see also
Holland, 560 U.S. at 649 
(holding that § 2244(d) is subject
to equitable tolling).

    If Milam completely succeeds in his assertions of
equitable tolling, his federal petition would be timely.
Milam seeks tolling (both equitable and statutory) not only
for the 616 days his state habeas petitions were pending, but
also for (at least) the 224-day period between the denial of
his last state habeas petition and his retention of federal
habeas counsel. If Milam is successful on both scores, the
resultant 840 days of tolling would make his federal petition
timely. We of course express no opinion as to whether
12                MILAM V. HARRINGTON

Milam is entitled to equitable tolling and if so, in what
amount; we note only that the tolling he seeks, if awarded,
would be sufficient to bring his petition within the one-year
federal limitations period.

                             V

    For the reasons above, we vacate the judgment of the
district court and remand for further proceedings consistent
with this opinion.

     VACATED AND REMANDED.