                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                             FILED
                           FOR THE NINTH CIRCUIT                               AUG 05 2013

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

GIOVANNI VALERIO,                                No. 11-16384

              Petitioner - Appellant,            D.C. No. 2:10-cv-01806-PMP-
                                                 GWF
  v.

ANTHONY SCILLIA; ATTORNEY                        MEMORANDUM*
GENERAL OF THE STATE OF
NEVADA,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                     Philip M. Pro, District Judge, Presiding

                       Argued and Submitted July 12, 2013
                           San Francisco, California

Before: PAEZ, BERZON, and TALLMAN, Circuit Judges.

       Nevada state prisoner Giovanni Valerio appeals the district court’s

dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely under the

Antiterrorism and Effective Death Penalty Act (“AEDPA”). We have jurisdiction



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
under 28 U.S.C. § 2253 and 28 U.S.C. § 1291, and we vacate the district court’s

order dismissing the petition as time-barred and remand for an evidentiary hearing

to determine whether Valerio is entitled to equitable tolling of the one-year

limitations period.

      A petitioner may be entitled to equitable tolling if he can demonstrate “(1)

that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way and prevented timely filing.” Holland v. Florida,

130 S. Ct. 2549, 2562 (2010) (internal quotations marks and citation omitted).

“Under long established principles, [a] petitioner’s lack of diligence precludes

equity’s operation.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

      On the basis of the existing record we are unable to determine whether, from

the date that Valerio learned that his trial counsel had not filed a direct appeal,

Valerio diligently pursued his rights by filing a prompt petition for post-conviction

relief. There is an unresolved factual dispute regarding when Valerio learned that

no direct appeal had been filed and, thereafter, what efforts were undertaken by

Valerio to appeal his conviction.

      It cannot be said that there are “no circumstances consistent with petitioner's

petition and declaration under which he would be entitled . . . to equitable tolling.”

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


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determinations of . . . whether there are grounds for equitable tolling are highly

fact-dependent, and because the district court is in a better position to develop the

facts and assess their legal significance in the first instance, we believe the best

course is to remand to the district court for appropriate development of the record.”

Id.

      Accordingly, we VACATE the district court’s order dismissing the petition

as untimely and REMAND for an evidentiary hearing or for other further factual

development as may be necessary to determine whether Valerio has exercised

diligence. If the court concludes that Valerio diligently pursued his rights then it

should consider whether Valerio has otherwise demonstrated that he is entitled to

equitable tolling of the one-year limitations period. We need not, and do not, reach

the merits of any other issue urged on appeal, including Valerio’s claim that his

conviction was not final until after the adjudication of his Lozada petition.

      Valerio’s Motion to Take Judicial Notice of State Court Pleadings at Docket

No. 13 is GRANTED. The panel shall retain jurisdiction over any future appeal.

      VACATED AND REMANDED.




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