Jose Sauceda-Contreras v. M. ELIOT SPEARMAN, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE SAUCEDA-CONTRERAS,
Petitioner-Appellant,
v.
M. ELIOT SPEARMAN, Warden,
Respondent-Appellee.
No. 17-55044
D.C. No.
8:15-cv-01117-JAK-PLA
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted August 30, 2018
Pasadena, California
Before: WARDLAW, BYBEE, and IKUTA, Circuit Judges.
Jose Sauceda-Contreras filed an untimely federal petition for habeas corpus.
The district court dismissed Sauceda-Contreras’s petition, concluding that he was
not entitled to equitable tolling on the basis of his claimed mental impairment and
that he was not entitled to an evidentiary hearing or a court-appointed expert to
FILED
SEP 06 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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develop his equitable tolling claim. Sauceda-Contreras appeals that dismissal. We
have jurisdiction under 28 U.S.C. § 2253. We review de novo the district court’s
dismissal of a habeas petition as untimely, and we review its decisions whether to
hold an evidentiary hearing or appoint an expert for abuse of discretion. Orthel v.
Yates, 795 F.3d 935, 938 (9th Cir. 2015); Walker v. Am. Home Shield Long Term
Disability Plan, 180 F.3d 1065, 1071 (9th Cir. 1999). We affirm.
1. The district court properly held that Sauceda-Contreras was not
entitled to equitable tolling based on his allegation that he suffers from an
unidentified mental impairment. See Bills v. Clark, 628 F.3d 1092, 1099–1100
(9th Cir. 2010). The only evidence Sauceda-Contreras offered in support of his
claimed mental impairment shows at most a lack of legal knowledge and a low
literacy level, conditions that do not justify equitable tolling. See Ford v. Pliler,
590 F.3d 782, 789 (9th Cir. 2009); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th
Cir. 2006); Hughes v. Idaho State Bd. of Corr., 800 F.2d 905, 909 (9th Cir. 1986).
2. The district court did not abuse its discretion in dismissing the petition
as untimely without holding an evidentiary hearing. Sauceda-Contreras’s alleged
lack of legal knowledge and low literacy level did not warrant an evidentiary
hearing because those allegations, even if true, would not entitle him to equitable
tolling for the reason identified above. See Roy v. Lampert, 465 F.3d 964, 969 (9th
2

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Cir. 2006). And despite multiple requests from the district court, Sauceda-
Contreras failed to support his conclusory assertions with any other evidence
“showing that he had a severe mental impairment during the filing period that
would entitle him to an evidentiary hearing.” Bills, 628 F.3d at 1100; see also
Coleman v. McCormick, 874 F.2d 1280, 1284–85 (9th Cir. 1989) (en banc).
3. The district court did not abuse its discretion in declining to appoint
an expert. Sauceda-Contreras, who has been represented by counsel throughout his
habeas proceedings, bears the burden to justify his request for equitable tolling.
Rasberry, 448 F.3d at 1153. And given his failure to make the requisite threshold
showing that he suffered from a mental impairment during the filing period, Bills,
628 F.3d at 1100, the district court’s decision to forgo the appointment of an expert
was not an abuse of discretion. Cf. Cacoperdo v. Demosthenes, 37 F.3d 504, 510
(9th Cir. 1994) (finding that a habeas petitioner’s “conclusory allegation of
unspecified mental illness” was insufficient to warrant a “psychiatric evaluation to
determine his competency” to stand trial).
4. Because we affirm the district court’s judgment that Sauceda-
Contreras failed to show a mental impairment, we need not address whether he
showed diligence. Orthel, 795 F.3d at 939 n.3.
AFFIRMED.
3

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