                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAR 28 2012

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

TYREECE REYNOLDS,                                No. 08-56935

              Petitioner - Appellant,            D.C. No. 5:08-cv-00905-VAP-AN

  v.
                                                 MEMORANDUM*
A. HEDGPETH, Warden,

              Respondent - Appellee.



TYREECE REYNOLDS,                                No. 09-55409

              Petitioner - Appellant,            D.C. No. 5:08-cv-00905-VAP-AN

  v.

A. HEDGPETH, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                       Virginia A. Phillips, District Judge
                      Arthur Nakazato, Magistrate Judge

                        Argued and Submitted May 2, 2011

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                 Pasadena, California

Before: PREGERSON, FISHER, and BERZON, Circuit Judges.

      Petitioner-Appellant Tyreece Reynolds (“Reynolds”), a California state

prisoner, appeals the district court’s holding that his 28 U.S.C. § 2254 habeas

petition is time-barred by the one-year statute of limitations of the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). See 28 U.S.C. §

2244(d)(1)(A). The court found that Reynolds’ 200-day delay between his first

and second state habeas filings, and Reynolds’ 86-day delay between his second

and third state habeas filings were unreasonable. The court therefore found that

Reynolds was not entitled to statutory tolling or equitable tolling of AEDPA’s one-

year statute of limitations for the time periods between his state court filings. See

id. § 2244(d)(2); In re Clark, 855 P.2d 729, 738 (Cal. 1993) (“It has long been

required that a petitioner explain and justify any significant delay in seeking

habeas corpus relief.”). We vacate and remand.

1.    The court did not afford Reynolds adequate notice and the opportunity to

explain his 86-day delay in filing his third state habeas petition.

      It is a “well-established principle that a person is entitled to notice before

adverse judicial action is taken against him.” Herbst v. Cook, 260 F.3d 1039,

1043 (9th Cir. 2001) (quoting Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000))


                                           2
(emphasis in original). A court has the authority to sua sponte raise the issue of a

federal habeas petition’s timeliness under AEDPA’s one-year statute of limitations,

but “that authority should only be exercised after the court provides the petitioner

with adequate notice and an opportunity to respond.” Id. Moreover, “[w]hen

dealing with a pro se petitioner, the court must make clear the [grounds for

dismissal] and the consequences for failing to respond.” Id. (quoting Boyd v.

Thompson, 147 F.3d 1124, 1128 (9th Cir. 1998)) (internal quotation marks

omitted).

      Reynolds, a pro se litigant during the § 2254 proceedings,1 was misled by

the magistrate court’s Order to Show Cause (“OSC”) because it did not refer to the

86-day delay between Reynolds’ filing of his second and third state habeas

petitions; it referred only to the 200-day delay between his first and second state

habeas filings. The OSC stated that, unless there was a reasonable explanation,

Reynolds was not entitled “to statutory tolling for the unexplained and unjustified

200 day (over six months) delay.” Accordingly, there was no reason for Reynolds

to believe that he was expected to explain the 86-day delay, because such an

explanation was never requested of him. Because the OSC’s sole focus was on

      1
       Reynolds was pro se during his state and federal district court habeas
proceedings, but is represented on appeal by court-appointed counsel, R. Shanti
Brien.

                                          3
examining the 200-day delay, Reynolds justifiably believed it was not necessary

for him to explain the 86-day delay.

      As a result, there is an unresolved factual dispute regarding if and when

Reynolds was denied access to the prison library. When, as here, there is an

unresolved factual dispute because a habeas petitioner did not have adequate notice

and an opportunity to respond, remand is appropriate. Herbst, 260 F.3d at 1044

(“[T]he district court is in a better position to develop the facts and assess their

legal significance in the first instance . . . . [Thus,] the best course is to remand to

the district court for appropriate development of the record.” (quoting

Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc)) (internal

quotation marks omitted)).

2.    The court exercised its discretion improperly by taking judicial notice of

facts contained in prison library records, and by failing to give Reynolds notice of

and the opportunity to respond to the court’s intention to use that factual

information as the basis for dismissing Reynolds’ habeas petition.

      Under Federal Rule of Evidence 201(b), “a court may take judicial notice of

‘matters of public record.’” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir.

2001) (quoting Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986)).

In addition, a court only has authority to take judicial notice of facts “not subject to


                                            4
reasonable dispute in that [they are] either (1) generally known within the

territorial jurisdiction of the trial court or (2) capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be

questioned.” Fed. R. Evid. 201(b); see also Lee, 250 F.3d at 689-90.

      Reynolds first realized there was an issue with the 86-day delay when the

court dismissed Reynolds’ § 2254 habeas claim as untimely. Reynolds then filed a

Motion for Reconsideration of the court’s dismissal. While considering Reynolds’

motion, the magistrate judge became suspicious of the authenticity of the library

access request and denial forms Reynolds submitted. Because of his suspicions,

the magistrate judge asked his courtroom deputy clerk to contact the Kern Valley

State Prison to obtain information and records from the prison law library pertinent

to determining whether Reynolds in fact had access to the library or legal materials

during the time periods in question. In response to the magistrate judges’s deputy

clerk’s request, the prison’s litigation coordinator sent prison library records to the

court, including library sign-in sheets purportedly showing when prisoners had

access to the library. The court did not notify Reynolds or the state Attorney

General’s office that it required more information before making a decision on the

Motion for Reconsideration. Moreover, the court did not request additional

briefing or hold an evidentiary hearing.


                                            5
      Instead, the district court considered the unauthenticated, unexplained prison

library records and determined that the new information obtained from the prison

litigation coordinator discredited Reynolds’ contrary evidence. Citing Smith v.

Duncan, 297 F.3d 809, 815 (9th Cir. 2002), for the proposition that it had authority

to “take judicial notice of [] relevant state records in federal habeas proceedings,”

the court found that it had authority to take judicial notice of the prison library

records.2 The court then denied Reynolds’ Motion for Reconsideration based on

the prison library records the court obtained from the prison litigation coordinator.

The court abused its discretion as follows.

      First, the court abused its discretion when it took judicial notice of

documents that had not been “made publicly available by [a] government entit[y],”

Daniels-Hall v. Nat. Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). Under

Federal Rule of Evidence 201(b), “a court may take judicial notice of ‘matters of

public record.’” Lee, 250 F.3d at 689 (quoting Mack v. S. Bay Beer Distrib., 798



      2
        We note that, contrary to the court’s conclusion, Smith v. Duncan does not
stand for the proposition that a court can take judicial notice of “all relevant state
records.” Rather, in Smith v. Duncan we recognized courts’ authority to take
judicial notice of “relevant state court documents” – in that particular case, the
dates on which previous state habeas petitions had been publicly filed in state
court. 297 F.3d at 815 (emphasis added). There is no indication, nor does the state
argue, that the prison library records are the equivalent of a publicly filed court
document.

                                           6
F.2d 1279, 1282 (9th Cir. 1986)) (emphasis added). The library records obtained

from the prison litigation coordinator, which included such information as dates

when Reynolds was given library access or was provided with requested legal

materials, appear to be internal documents accessible only to prison personnel.

The records were therefore not judicially noticeable, even though they were

maintained by a public entity. See, e.g., United States v. Ritchie, 342 F.3d 903,

908-09 (9th Cir. 2003); 21B Wright & Miller, Federal Practice and Procedure

§ 5106.1 (2d ed. 2011) (explaining that “the requirement that the source provide a

‘ready determination’” means that “the source must be ‘readily accessible’”); id.

(“[I]f citizens who wanted to check up on the court had to convince some

bureaucrat to let them rummage through his files, the fact should not be noticed.”).

      Second, even if the prison library records could be considered “matters of

public record,” the court abused its discretion by taking judicial notice of facts

subject to reasonable dispute. Judicial notice extends only to facts that are “not

subject to reasonable dispute” because they are either (a) “generally known within

the territorial jurisdiction of the trial court” or (b) “capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be

questioned.” Fed. R. Evid. 201(b). Here, information about when the library was

open and closed and when Reynolds was able to use the library’s services are not


                                           7
“generally known” facts. Nor are the facts that the court derived from the library

records “capable of accurate and ready determination by resort to sources whose

accuracy cannot reasonably be questioned.” They are handwritten records that

require interpretation before their meaning can be discerned. See 21B Wright &

Miller, Federal Practice and Procedure § 5106.1 (2d ed. 2011) (“If the source can

only be used through an intermediary such as an expert witness or an interpreter,

the court does not really rely on the source but on the intermediary.”). The

handwritten library records also are not “sources whose accuracy cannot

reasonably be questioned.” Such records are very likely to contain errors.

      Finally, rather than test the validity of the information in the prison library

records in an adversarial proceeding in which Reynolds could challenge the

records, the court decided, without the benefit of the parties’ arguments, that

Reynolds’ evidence was not to be accorded any weight. By failing to provide

Reynolds with notice that the court intended to deny the Motion for

Reconsideration based on the newly obtained prison library records, and by failing

to give Reynolds an opportunity to respond to that evidence, the court deprived

Reynolds of his right to request an “opportunity to be heard as to the propriety of

taking judicial notice and the tenor of the matter noticed.” Fed. R. Evid. 201(e).

                                        ***


                                          8
      For the foregoing reasons, we VACATE the court’s order dismissing

Reynolds’ federal habeas petition as untimely and REMAND for an evidentiary

hearing to determine if, and to what extent, Reynolds’ access to the prison library

was limited, and if, as a result of limited access, he was entitled to statutory tolling

or equitable tolling of AEDPA’s one-year statute of limitations.

      VACATED AND REMANDED.




                                           9
