FINDINGS AND RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

I. Introduction

Petitioner is a state prisoner, proceeding pro se, with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2009 conviction for carjacking, forcible oral copulation, and attempted robbery. Pursuant to pages numbered by petitioner as 5 and 6, the undersigned construes the petition as raising three grounds for relief: (1) the court erred in failing to strike DNA evidence; (2) the presentation of false or misleading evidence; and (3) insufficient evidence of attempted robbery.1 (ECF No. 1 at 5, 6 & 8.)

Presently before the court is respondent's motion to dismiss the pending habeas petition as barred by the one-year statute of limitations. Petitioner filed an opposition2 and respondent filed a reply. For the reasons set forth below, the undersigned recommends that respondent's motion to dismiss be granted.

II. Statutory Tolling

Petitioner does not dispute that the statute of limitations expired before the instant petition was filed. However, to assist the court in evaluating petitioner's claim that he is entitled to equitable tolling, the court first addresses the issue of statutory tolling.

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which became law on April 24, 1996, imposed for the first time a statute of limitations on petitions for a writ of habeas corpus filed by state prisoners. This statute of limitations provides that:

28 U.S.C. § 2244 (d)(1).

The relevant chronology of this case is as follows:

The statute of limitations begins to run when petitioner's criminal judgment becomes final. The California Supreme Court denied the petition for review on December 21, 2011. (LD 4.) Petitioner's conviction became final ninety days later, on March 20, 2012, when the time for seeking certiorari with the United States Supreme Court expired. See Bowen v. Roe, 188 F.3d 1157 (9th Cir. 1999). The AEDPA statute of limitations period began to run the following day, on March 21, 2012. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (the AEDPA limitations period begins to run on the day after the triggering event pursuant to Fed. R. Civ. P. 6(a)). Absent tolling, petitioner's last day to file his federal petition was on March 20, 2013.

Petitioner filed no state post-conviction collateral challenges to his conviction. Therefore, the statute of limitations period expired on March 20, 2013. Petitioner filed the instant action on September 13, 2013, almost six months after the limitations period expired. Accordingly, this action is time-barred unless petitioner can demonstrate that he is entitled to equitable tolling.

III. Equitable Tolling

The one year statute of limitations for filing a habeas petition may be equitably tolled if extraordinary circumstances beyond a prisoner's control prevent the prisoner from filing on time. See Holland v. Florida, 560 U.S. 631, 645 (2010). A petitioner seeking equitable tolling must establish two elements: "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

In his opposition to the pending motion, petitioner argues that he is entitled to equitable tolling because of mental illness. (ECF No. 26.) Petitioner claims that he is severely mentally ill and that his antipsychotic medications left him unable to comprehend his responsibilities or to prepare a habeas petition on his own during the "crucial period of time." (See id. at 4-7.)

Petitioner also claims that because of his mental illness, he relied on an assistant to help him with his legal work. (Id. at 4.) Petitioner appears to assert that he is entitled to equitable tolling because his assistant gave him erroneous advice regarding the need to file a federal habeas petition. (See id.)

A. Mental Illness

The Ninth Circuit has articulated a specific, two-part test for an equitable tolling claim based on a petitioner's mental impairment:

Bills v. Clark, 628 F.3d 1092, 1099-1100 (9th Cir. 2010) (citations omitted) (italics in original); see also Orthel v. Yates, 795 F.3d 935, 938 (9th Cir. 2015) ("A petitioner seeking equitable tolling on the grounds of mental incompetence must show extraordinary circumstances, such as an inability to rationally or factually personally understand the need to timely file, or a mental state rendering an inability personally to prepare a habeas petition and effectuate its filing.").

Bills provides guidance for applying its two-part test:

Bills, supra, 628 F.3d at 1100-01.

A petitioner alleging a severe mental impairment during the filing period is not entitled to an evidentiary hearing unless he or she makes "a good faith allegation that would, if true, entitle him to equitable tolling." Laws v. Lamarque, 351 F.3d 919, 921 (9th Cir. 2003) (remanding for consideration of whether the petitioner's delayed filing was "attributable to psychiatric medication which deprived Petitioner of any kind of consciousness" where the petitioner had demonstrated "evidence of serious mental illness" by attaching prison psychiatric and medical records); see Bills, supra, 628 F.3d at 1099-1100 (remanding where the petitioner was in the lowest percentile for verbal IQ, verbal comprehension and working memory, and, according to clinical psychologists, was incapable of inferential thinking necessary to complete a federal habeas form); see also Orthel, supra, 795 at 939-40 ("Where the record is amply developed, and where it indicates that the petitioner's mental incompetence was not so severe as to cause the untimely filing of his habeas petition, a district court is not obligated to hold evidentiary hearings to further develop the factual record, notwithstanding a petitioner's allegations of mental incompetence.") (quoting Roberts v. Marshall, 627 F.3d 768, 773 (9th Cir. 2010).)

Petitioner alleges that he has been diagnosed with paranoid schizophrenia, bipolar disorder, and depressive order and that he takes "heavy" antipsychotic medications on a daily basis, which leave him drowsy, incoherent, and unable to remember his responsibilities on his own. (ECF No. 26 at 2, 4-7.) In support of his claim, petitioner provides a copy of his "medication chart." (Id. at 9-14.) This document indicates that petitioner has been diagnosed with a "mood disorder" and was prescribed psychotropic medications from 2009 to 2014. (See id. at 9-14.)

Respondent argues that petitioner is not entitled to equitable tolling based on mental illness. (ECF No. 31.) Respondent contends that petitioner's medical records "do not reflect a mental disorder of a severity that would prevent him from understanding the need to properly file a timely federal petition and from enlisting the proper assistance." (Id. at 3.) Respondent attaches a copy of petitioner's mental health records as Exhibit A to his reply. (ECF No. 31-1). The undersigned summarizes these records herein.

On January 26, 2012, petitioner was seen by Dr. Lewis, a staff psychologist. (ECF No. 31-1 at 3.) In the telemedicine report, Dr. Lewis wrote, "mood stable, current meds helpful." (Id.)

On February 10, 2012, petitioner was seen by H. Parton, PhD. (Id. at 4.) Dr. Parton wrote that petitioner reported he was "fine" and "denied any significant mental health concerns at this time." (Id.) Dr. Parton's report indicates that petitioner has been diagnosed with schizoaffective disorder. (Id.)

On February 15, 2012, Dr. Parton signed a Mental Health Placement Chrono indicating that petitioner met the criteria for placement in the Clinical Case Management (CCCMS) program. (Id. at 5.) The chrono indicates that petitioner was prescribed psychotropic medications and that his GAF score was 66. (Id.)

On March 19, 2012, Dr. Lewis saw petitioner. (Id. at 6.) Dr. Lewis wrote that petitioner stated that his medications were "helping a lot" and that the dosage was "good." (Id.) Dr. Lewis noted that petitioner appeared "alert" and "oriented." (Id.)

On April 16, 2012, petitioner was seen by A. Bowers, PhD. (Id. at 7.) Dr. Bowers wrote that petitioner stated he was "doing well currently without any problems," and that petitioner appeared "stable" and denied "acute distress." (Id.)

On May 30, 2012, petitioner saw Dr. Bowers. (Id. at 9.) Dr. Bowers wrote that petitioner indicated he was "doing well currently with no concerning mental health symptoms." (Id.) Dr. Bowers reported that petitioner "stated that he was focused on issues related to his case and hopefully getting judicial review." Petitioner also "stated that he was good at asking for help when he needed it." (Id.) Dr. Bowers noted that petitioner was "stable," "denie[d] acute distress," and was "functioning well without breakthrough symptomology." (Id.) "[N]o psychotic processes [were] observed." (Id.)

On June 5, 2012, petitioner was seen by Dr. Lewis. (Id. at 10.) Petitioner was seen as an outpatient. (Id.) Although it is not entirely clear, Dr. Lewis' notes appear to state that petitioner requested a higher dosage of medication for his mood disorder. (See id.) The telemedicine form indicates that petitioner's thought process was "organized," his judgment and insight were "limited," and he appeared "alert" and "oriented." (Id.) The report contains the following notation: "Axis I: 1. Depressive DSO NOS. 2. Hx PSD . . . Axis III: chronic headaches." (Id.)

On July 26, 2012, petitioner was seen by Dr. Bowers. (Id. at 12.) Dr. Bowers wrote that petitioner stated he was "doing well without any particular problems." (Id.) Dr. Bowers reported that when he asked petitioner "what would be the only problem if petitioner had one," petitioner stated, "If my family wasn't putting money on my books, but they are putting money on my books." (Id.) Dr. Bowers wrote that petitioner stated his current medications were "working well" and that he "continued to want to take them due to their usefulness." (Id.) Dr. Bowers noted that petitioner was "stable[,] denie[d] all current distress[,] and [was] functioning well." (Id.)

On September 25, 2012, petitioner saw Dr. Lewis. (Id. at 13) Petitioner was seen as an outpatient. (Id.) The telemedicine report indicates that petitioner's medications were reordered, but does not otherwise contain any updates. (See id.)

On October 4, 2012, petitioner was seen by Dr. Lewis. (Id. at 14.) Petitioner was seen as an outpatient. (Id.) A portion of Dr. Lewis' notes are illegible, but it appears that petitioner requested an increased dosage of one of his medications. (See id.) The telemedicine form indicates that petitioner's thought process was "organized," his judgment and insight were "limited," and he appeared "alert" and "oriented." (Id.)

Also on October 4, 2012, petitioner saw Dr. Bowers. (Id. at 16.) Dr. Bowers wrote that petitioner was "doing well with no particular problems." (Id.) Dr. Bowers indicated that petitioner stated he was pleased to have heard from his brother whom he was worried about. (Id.) Dr. Bowers also reported that petitioner "described medications as crucial to him in maintaining stability." (Id.) Dr. Bowers observed that petitioner was "stable[,] denie[d] all current distress[,] and [was] functioning well." (Id.)

On November 13, 2012, petitioner saw Dr. Bowers. (Id. at 16.) Dr. Bowers wrote that petitioner was "doing well and denied any current problems." (Id.) Dr. Bowers reported that petitioner stated he was concerned about his family members but that contact with them had improved. (Id.) Dr. Bowers noted that petitioner was "stable," "denie[d] acute distress," and was "focused on positive programming." (Id.)

On November 20, 2012, petitioner was seen by Dr. Lewis. (Id. at 18.) Petitioner was seen as an outpatient. (Id.) The telemedicine form indicates that petitioner's thought process was "organized," his judgment and insight were "limited," and he appeared "alert" and "oriented." (Id.)

On December 17, 2012, petitioner saw Dr. Lewis. (Id. at 19.) Petitioner was seen as an outpatient. (Id.) Dr. Lewis' notes read, "mood stable, current meds helpful." (Id.) The telemedicine form indicates that petitioner's thought process was "organized," his judgment and insight were "limited," and he appeared "alert" and "oriented." (Id.) On January 29, 2013, petitioner was seen by Dr. Bowers. (Id. at 21.) Dr. Bowers wrote that petitioner stated he was "doing well currently without any problems." (Id.) Dr. Bowers wrote that he and petitioner discussed "programming issues" and "positive family interactions with [petitioner's] sisters." (Id.) Dr. Bowers noted that petitioner was "currently stable" and was "functioning well currently at CCCMS LOC without any noticeable breakthrough symptoms." (Id.)

On February 11, 2013, petitioner was seen by Dr. Lewis. (Id. at 22.) The report indicates that petitioner has a history of depression and unstable mood and that petitioner was taking psychotropic medications including Venlafaxine and Trileptal. (Id.) Dr. Bowers wrote that petitioner stated "his mood had remained stable" and that he wished to continue his current medications, which he found "helpful." (Id.) Dr. Bowers wrote that petitioner stated, "I'm just programming." (Id.) Dr. Bowers further noted, "no hopelessness, no psychotic symptoms mania or hypomania." (Id.) "Medication side effects reported: none." (Id.) Dr. Bowers also noted that petitioner reported compliance with his medications, and that Dr. Bowers had received no referrals from staff regarding reports of petitioner's noncompliance with his medications. (Id.)

On February 13, 2013, petitioner was seen by Dr. Lewis. (Id. at 24.) Petitioner was seen as an outpatient. (Id.) A portion of Dr. Lewis' notes are illegible. (See id.) The box next to "patient to be seen onsite for emergent issues pending evaluation in Telemedicine Psychiatry" is checked. (Id.) The report indicates that petitioner's TABE score is 5.4 (Id.)

Also on February 13, 2013, Dr. Bowers completed a Mental Health Placement Chrono, which indicates that petitioner met the criteria for placement in CCCMS. (See id. at 25.) The chrono indicates that petitioner was prescribed psychotropic medication and that his GAF score was 65. (Id.)

On April 8, 2013, Dr. Lewis re-ordered petitioner's medications through May 12, 2013. (Id. at 26.) It appears that Dr. Lewis did not see petitioner that day because petitioner refused to come to his appointment. (See id.)

On May 21, 2013, petitioner saw Dr. Lewis. (Id. at 27.) Dr. Lewis's report indicates that petitioner was prescribed Venlafaxine for depression, Trileptal for "unstable mood," and Remeron for depression and "SSRI-related insomnia/activation." (Id. at 28.) Dr. Lewis wrote:

(Id. at 27.)

On June 11, 2013, petitioner was seen by Dr. Lewis. (Id. at 29.) Dr. Lewis wrote that petitioner requested an increased dose of Remeron for mood and sleep. (Id.) Dr. Lewis noted that petitioner reported "initial insomnia, mild to moderate, mood `OK.'" (Id.) Dr. Lewis' report states, "no SI, no hopelessness, no psychotic symptoms, no symptoms mania" and "med. side effects reported: none." (Id.) Dr. Lewis noted that petitioner's mood was "mildly anxious" and his thought process was "organized." (Id.)

On July 15, 2013, petitioner saw P. Wertzberger, PhD. (Id. at 31.) Dr. Wertzberger wrote that he asked petitioner "what was new with him" and petitioner responded, "nothing much." (Id.) Petitioner stated "that he has had the same cell mate for over two years, and that having a compatible cell mate makes all the difference." (Id.) Dr. Wertzberger indicated that petitioner denied any acute mental health concerns, and that petitioner appeared to be "psychiatrically stable." (Id.)

On September 26, 2013, petitioner was seen by Dr. Alex Kushnier. (Id. at 32.) Dr. Kushnier wrote that petitioner was "last seen on 8/1/13 when he reported Trileptal helpful for mood, today reports requesting increased Remeron for sleep . . ."5 (Id.) Dr. Kushnier reported that petitioner stated his mood was "fine" and that he was "managing lockdown well." The report further states, "Sleeps 5h/night, maintains interests, reads, exercises, good energy, no impairment of memory or concentration . . ." (Id.) The report indicates that petitioner denied irritability or anger, "denie[d] periods of expansive or irritable moods with decreased need for sleep," and "denie[d] medication side effects." (Id.) The report states, "AH but not troubling, no VH/paranoia, no IOR. Last experienced paranoia 3y ago when he was bothered by AH."6 (Id.) In the psychological history section of the report, Dr. Kushnier explains,

(Id.) The report notes that petitioner has never been "hospitalized psychiatrically" and that petitioner's thought process appeared "linear and goal directed." (Id.)

On October 17, 2013, petitioner was seen by Dr. Wertzberger. (Id. at 34.) Dr. Wertzbeger wrote that petitioner "presented with clear, organized speech" and "denied any specific emotional distress, other than reporting some mild insomnia, for which he requested an increase in dosage of prescription medication." Dr. Wertzberger noted that petitioner "present[ed] as and report[ed] to be psychiatrically stable." (Id.)

On October 22, 2013, Dr. Kushnier completed a report indicating that petitioner "refused [his] ducated appointment" that day. (Id. at 35.)

On November 17, 2013, petitioner was seen by Majumdar, N. D., MD. (Id. at 36.) Dr. Majumdar indicated that petitioner was informed that if a pattern of medication refusals was seen, petitioner's treatment could be discontinued. (See id.) Dr. Majumdar wrote that petitioner was seen at his cell because he refused to come in for an office visit. Petitioner reported that he had been "alright." When asked why he was in mental health treatment, petitioner stated that depression was his chief complaint. (Id.) Petitioner was reminded that he needed to come to appointments to have his medications refilled, and petitioner stated he would do so. (Id.) Dr. Majumdar observed that petitioner was "awake, alert, and oriented to person, place, time, and situation" and that "his thought processes appeared were linear and goal directed." (Id.) Petitioner "had fair attention, concentration, comprehension, and memory" and "appeared to have fair insight and judgment regarding his ongoing health care needs."7 (Id.)

After carefully considering the record, for the reasons stated herein, the undersigned finds that petitioner is not entitled to equitable tolling based on mental illness. Petitioner has not demonstrated that he suffered from a mental impairment during the limitations period that rendered him unable to rationally or factually understand the need to timely file his federal petition or that rendered him unable to prepare his federal petition.

In the instant case, the relevant time period is between March 21, 2012, when the one-year limitations period began, and September 13, 2013, the date the instant petition was constructively filed. See Laws, 351 F.3d at 923 ("Laws was adjudicated competent to stand trial in 1993, notwithstanding evidence of serious mental illness. But that determination has little bearing on his competence vel non during the period, 1996-2000[,]" . . . "the years when his petitions should have been filed.") Petitioner claims that during the "crucial" time period, he was unable to understand the need to timely file a petition or to prepare a petition on his own because of his mental illness and the effects of his "heavy" antipsychotic medications. (ECF No. 26.)

Petitioner's medical records indicate that petitioner was diagnosed with schizoaffective disorder and/or depressive disorder.8 As of January 26, 2012,9 petitioner was stable on medication. (ECF No. 31-1 at 3.) Petitioner was thereafter seen every one to two months and was consistently described by clinicians as alert and oriented, and his thought process organized. Petitioner generally denied any side effects from his medications, other than "mild lightheadedness" for three to four days in April 2013 when he started taking Remeron. (Id. at 27.) While petitioner occasionally requested increased doses of medication for mood and insomnia, it appears that petitioner was still able to function, since at these same appointments petitioner was described as alert and oriented with an organized thought process. (See id. at 10, 14, 27, 29.) Thus, although petitioner was taking psychotropic medications during the relevant time period, it does not appear that the medications left petitioner "incoherent" or in a "zombi[e] state," as petitioner alleges. (See ECF No. 26 at 5.)

In his opposition, petitioner provides a list of symptoms associated with paranoid schizophrenia and bipolar disorder. (See ECF No. 26 at 7.) Petitioner asserts that during the time the statute of limitations was running, he suffered from "severe" symptoms of mental illness, which prevented him from "thinking clearly" and caused him to file an untimely petition. (See id. at 6.) However, petitioner's medical records indicate that during the limitations period he was generally "doing well with no concerning mental health symptoms." (See ECF No. 31-1 at 4, 9, 12, 16, 21.) For example, on May 30, 2012, February 11, 2013, and May 21, 2013, clinicians specifically noted that no psychotic symptoms or processes were observed. (Id. at 9, 22, 27.) Petitioner's records from January 2012 through July 15, 2013, indicate that petitioner reported no hallucinations, no delusions, and no commands to hurt himself or others. (See ECF No. 31-1 at 3, 10, 14, 18, 19, 22, 27, 29, 31.) While it appears that petitioner reported experiencing some auditory hallucinations in September 2013, after the statute of limitations period had expired, these hallucinations were described as "not bothersome" and petitioner's thought process at the time was described as "linear and goal directed." (Id. at 32.)

Petitioner's involvement in a number of activities during the limitations period further suggests that petitioner was generally functioning well. On May 30, 2012, two months after the limitations period began, petitioner reported that he was "focused on issues related to his case and hopefully getting judicial review." (ECF No. 31-1 at 9.) On November 12, 2012, January 29, 2012, and February 11, 2013, petitioner indicated that he was focused on programming. (Id. at 16, 21, 22.) On May 21, 2013, two months after the statute of limitations period expired, petitioner reported to his clinician that he was "enjoying [the] educational program for GED." (Id. at 27.) The court also notes that during the relevant time period, petitioner was routinely seen on an outpatient basis and was assigned to the CCCMS level of care, which "suggests that petitioner was able to function despite his mental health problems." Washington v. McDonald, 2010 WL 1999469, at *2 (C.D. Cal. Feb. 19, 2010) (citing Coleman v. Schwarzenegger, 922 F.Supp.2d 882, 903 n. 24 (E.D. Cal. 2009) (inmates designated to the CCCMS level of care "are those `whose symptoms are under control or in partial remission and can function in the general prison population, administrative segregation, or segregated housing unit'"). In addition, petitioner's GAF10 score was recorded as 66 on February 15, 2012, and 65 on February 13, 2013, which indicates that petitioner's symptoms were mild. (ECF No. 31-1 at 5, 25.) Thus, the medical records do not demonstrate a medical incapacity so severe that it prevented petitioner from understanding and acting on his rights. Rather, petitioner was generally oriented, able to communicate, and able to understand others.

While petitioner suffered from mental illness during the relevant period, petitioner failed to demonstrate that his mental impairment was so severe that he was unable to either understand the need to file or to personally prepare and file a habeas petition. Accordingly, petitioner does not meet the first prong of the Bills test.

Moreover, petitioner has not satisfied the second prong of Bills. Under the second prong of Bills, petitioner must establish that he diligently pursued his rights, but that his "mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including reasonably available access to assistance." Bills, 628 F.3d at 1100.

Here, petitioner's own explanation as to why his petition was untimely suggests that his mental impairment was not the but-for cause of the delay in the filing of his federal petition. See Bills, 628 F.3d at 1100 ("The `totality of the circumstances' inquiry in the second prong [of the Bills test] "considers whether the petitioner's impairment was the but-for cause of any delay."). In his opposition, petitioner explains that he had an assistant who was helping him with his legal work.11 (ECF No. 26 at 4.) According to petitioner, his assistant left him "with the impression that everything [petitioner] needed to do concerning [his] writ of habeas corpus was done." (See id.) As a result, petitioner thought that he was "waiting to go back to court." (Id.) Petitioner explains that six months later, he learned from another inmate that he needed to file a federal habeas petition. (Id.) Petitioner then filed the instant petition,12 with the help of a different assistant. (See id.)

Petitioner's explanation suggests that petitioner's ignorance of the law, and not his mental illness, was the but-for cause of his failure to file a timely petition. While petitioner makes a general allegation that his mental illness caused his untimely filing, petitioner's conclusory allegations do not establish a causal connection between his mental impairments and his failure to file a timely petition. Because petitioner has failed to establish a causal link between his mental illness and his delay in filing his federal habeas petition, equitable tolling is not warranted. See Gaston v. Palmer, 417 F.3d 1030, 1034-35 (9th Cir. 2005) (upholding a finding that equitable tolling was inapplicable where petitioner failed to show a causal connection between physical and mental disabilities and inability to timely file petition), modified on other grounds by, 447 F.3d 1165 (9th Cir.). See also Jones v. Marshall, No. CV 09-0233 GHK (JTL), 2009 WL 2189892 at *9 n. 13 (C.D. Cal. July 17, 2009) (rejecting claim for equitable tolling based on alleged mental illness because petitioner failed to establish that his mental condition was the "but for" cause of his failure to timely file a federal habeas petition.).

Furthermore, petitioner has not established that he pursued his rights diligently. See Bills, 628 F. 3d at 1100 (petitioner "must diligently seek assistance and exploit whatever assistance is reasonably available"). A petitioner may satisfy the diligence prong if "the petitioner's mental impairment prevented him from locating assistance or communicating with or sufficiently supervising any assistance actually found." Id.

Here, petitioner has alleged no facts showing assistance was not reasonably available or that his alleged mental problems prevented him from locating or communicating with others for assistance in order to file a timely petition. Review of the medical records demonstrates that petitioner was able to communicate clearly with medical professionals concerning his health issues. On May 30, 2012, petitioner even told his clinician that he was "good at asking for help when he needed it." (ECF No. 31-1 at 9.) Moreover, once petitioner learned of the need to file a federal petition, he was able to secure assistance and file the instant petition, which suggests that assistance was reasonably available to petitioner and that he knew how to ask for it. See Bills, 628 F. 3d at 1100 ("[A] petitioner's mental impairment might justify equitable tolling if it interferes with the ability to understand the need for assistance, the ability to secure it, or the ability to cooperate with or monitor assistance the petitioner does secure."). Finally, for at least part of the relevant time period, petitioner was "focused on issues relating to his case," programming, and working on his GED, which suggests that petitioner's mental illness did not interfere with his ability to locate or understand the need for assistance. Thus, petitioner has not shown that he acted diligently.

For the reasons discussed above, the undersigned finds that petitioner is not entitled to equitable tolling based on mental illness.13

B. Reliance on Legal Assistant

As discussed above, petitioner asserts he was being assisted by "someone" who left him "with the impression that everything [petitioner] needed to do concerning [his] writ of habeas corpus was done." (See ECF No. 24 at 4.) As a result, petitioner thought that he was "waiting to go back to court" and did not learn until six months later that he needed to file a federal habeas petition. (Id.) Respondent asserts that to the extent petitioner claims that "his inmate assistant gave him erroneous advice which caused the untimely filing of his federal petition . . ., such erroneous advice is insufficient to show entitlement to equitable tolling." (ECF No. 31 at 5.)

Several courts have rejected claims of equitable tolling based on difficulties with writ writers. In Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000), the Tenth Circuit Court of Appeals rejected an inmate's claim that he was entitled to equitable tolling for the period of time the writ writer was preparing the petition. The Court held that "the fact that an inmate law clerk was drafting the state petition does not relieve Mr. Marsh from the personal responsibility of complying with the law." In United States v. Cicero, 214 F.3d 199, 204 (D.C. Cir. 2000), the movant had relied on a writ writer whose placement in segregation "separated [petitioner] and his papers for some time before the expiration of the one year grace period until after the filing deadline had passed." The court found this assertion an insufficient basis for equitable tolling, because movant "entrusted [the writ-writer] with his legal documents at his peril." Id. at 205. Finally, in Nguyen v. Yates, No. CV 09-4128-VAP (MAN), 2010 WL 2569246, at *10-11 (C.D. Cal. Apr. 29, 2010), the court held that "any contention that petitioner received inadequate assistance from other inmates in connection with his habeas efforts could not suffice to show an extraordinary circumstance." Quoting Henderson v. Johnson, 1 F.Supp.2d 650, 655 (N.D. Tex. 1998), the court observed:

Id.

Here, petitioner alleges at most that his assistant gave him incorrect information regarding the need to file another habeas petition. Petitioner does not allege that the writ writer withheld petitioner's files or records or otherwise made it impossible for petitioner himself to file a timely petition. In this case, petitioner's bare allegation of negligence by his assistant cannot support equitable tolling.

IV. Conclusion

For the reasons discussed above, the undersigned finds that this action is barred by the statute of limitations.

Accordingly, IT IS HEREBY RECOMMENDED that respondent's motion to dismiss (ECF No. 20) be granted.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." If petitioner files objections, he shall also address whether a certificate of appealability should issue and, if so, why and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).