Blackhurst v. Pugh

¶1concurring.

¶2I concur in the result of the majority disposition. I part from the majority because it holds that Blackhurst has failed to demonstrate that he was mentally ill during the relevant time period. To the contrary, the district court held, “The court does not doubt that petitioner suffered from an antisocial and/or mixed personality disorder during the relevant time period (1996 and 1997).” The district court did not clearly err, and so its finding of fact cannot be reversed. Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999). Surprisingly, the majority determines that the district court itself found that Blackhurst was not mentally ill. Because I am bound by the district court’s explicit findings to the contrary, I cannot join.

¶3In footnote 3, the majority points out that the district court stated that it accepted the magistrate judge’s factual findings. But what do we do with this general statement when the district court makes its own specific finding that plainly contradicts the magistrate judge’s finding? We are not at liberty to pick and choose which finding we shall review.1 Are we to assume that the district court did not mean what it stated? I suggest we must pay heed to the district court’s own words, rather than the contrary words of the magistrate judge’s it incorporated by nonspecific reference.

¶4The district court held that Blackhurst “has failed to bear his burden of proving that mental illness interfered with his ability to appreciate his position and make rational choices with regard to the same.” The district court thus held that Blackhurst failed to demonstrate causation. See Corjasso v. Ayers, 278 F.3d 874, 879 (9th Cir.2002) (holding that equitable tolling “is appropriate only during the delay caused by the extraordinary circumstances”).

¶5I would affirm the district court on the issue of causation. Blackhurst was able to file a habeas petition in 1988, when he was suffering from the most acute psychotic episodes. A fortiori, he was able to file a habeas petition when his illness was less serious. The district court did not clearly err in determining that Blackhurst failed to show that his mental illness caused his late filing.