Morgan v. Esberg et al

Filing 21

ORDER re 19 Order. Signed by Judge Charles R. Breyer on 12/16/08. (Attachments: # 1 Certificate of Service)(be, COURT STAFF) (Filed on 12/16/2008) Modified on 12/17/2008 (mcl, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The order granting respondent's motion to dismiss, filed on December 15, 2008, is AMENDED by replacing the full paragraph on page 8 of the order with the following full paragraph: Mental incompetence may constitute an extraordinary circumstance warranting equitable tolling. Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003). But petitioner's mere reference to schizophrenia and depression is not enough. To establish a credible equitable tolling claim based on mental incompetence, a petitioner must do more than claim mental ailments. He must meet the "burden of showing that the mental health problems rendered him unable to file a habeas petition during the one year limitations IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

JOHN STEVEN MORGAN, Petitioner, vs. RODNEY K. MITCHELL, Sheriff, Respondent(s).

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No. C 07-6477 CRB (PR) ORDER

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period." Brown v. McKee, 232 F. Supp. 2d 761, 767-68 (E.D. Mich. 2002). Petitioner does not (and cannot) make this requisite showing because the record makes clear that he was able to file a habeas petition in state court before the one-year limitation period expired, and was able to file several other petitions and motions in state court before finally filing the instant petition in federal court. See Gaston v. Palmer, 417 F.3d 1030, 1034-35 (9th Cir. 2005) (whether prisoner was able to file prior habeas petition in state court is important factor in determining whether he was unable to file a timely petition in federal court). In fact, the various habeas petitions and motions petitioner filed in state court before finally filing in federal court highlight the fact that petitioner has not shown that any of the alleged impediments were the cause of his untimeliness. See Spitsyn, 345 F.3d at 799.

SO ORDERED. DATED: Dec. 16, 2008 CHARLES R. BREYER United States District Judge

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