OCIE OLA WRIGHT, Jr. v. Michael D. McDonald

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OCIE OLA WRIGHT, Jr.,
Petitioner - Appellant,
v.
MICHAEL D. MCDONALD,
Respondent - Appellee.
No. 09-55905
D.C. No. 3:08-cv-02255-JM-PCL
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Submitted February 6, 2012**
Pasadena, California
Before: D.W. NELSON, O’SCANNLAIN, and N.R. SMITH, Circuit Judges.
Ocie Ola Wright, Jr. appeals the district court’s conclusion that his 28 U.S.C.
§ 2254 habeas petition was time-barred by the one-year statute of limitations in the
Antiterrorism and Effective Death Penalty Act of 1996. We granted a certificate of
FILED
FEB 09 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Although Wright briefed a non-certified issue, we decline to expand the1
certificate of appealability to include it, and thus, we will not review the issue. See
28 U.S.C. § 2253(c); Hiivala v. Wood, 195 F.3d 1098, 1103-05 (9th Cir. 1999) (per
curiam).
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appealability regarding whether Wright was entitled to equitable tolling. We1
affirm the district court.
“The dismissal of a petition for writ of habeas corpus as time-barred is
reviewed de novo. 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.” Bills v. Clark, 628 F.3d 1092, 1096 (9th Cir.
2010) (internal quotation mark omitted). However, a district court’s factual
findings and finding of competency are reviewed for clear error. Id. “A petitioner
seeking equitable tolling bears the burden of showing both that there were
extraordinary circumstances, and that the extraordinary circumstances were the
cause of his untimeliness.” Roberts v. Marshall, 627 F.3d 768, 772 (9th Cir. 2010)
(internal quotation marks omitted). Here, after assessing the medical
documentation submitted by Wright, the district court did not clearly err in finding
that Wright failed to demonstrate cognitive impairment rising to the level of an

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extraordinary circumstance. Further, Wright has failed to show that his alleged
mental illnesses caused his untimely habeas filing.
AFFIRMED.

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