                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 19 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-17273

              Plaintiff - Appellee,              D.C. Nos.    2:12-cv-00172-JCM
                                                              2:09-cr-00262-JCM -
  v.                                                                        RJJ-2

ADRIAN FUENTES-GARCIA,
                                                 MEMORANDUM*
              Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                             Submitted May 15, 2014**
                              San Francisco, California

Before: RIPPLE,*** SILVERMAN, and GOULD, Circuit Judges.

       Fuentes-Garcia appeals the district court’s dismissal of his pro se 28 U.S.C.

§ 2255 motion to vacate his sentence. He admits that he filed his motion outside



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
                                          -2-
the one-year limitations period, see 28 U.S.C. § 2255(f), but argues that the district

court erred in dismissing the motion as untimely without first holding an

evidentiary hearing to determine whether he is entitled to equitable tolling. We

have jurisdiction pursuant to 28 U.S.C. § 2253, United States v. Battles, 362 F.3d

1195, 1196 (9th Cir. 2004), and we vacate the dismissal and remand for further

factual development.

      “Generally, a litigant seeking equitable tolling bears the burden of

establishing two elements: (1) that he has been pursuing his rights diligently, and

(2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo,

544 U.S. 408, 418 (2005). He must also show a “causal link” between the

extraordinary circumstances and the untimeliness of the § 2255 motion. United

States v. Buckles, 647 F.3d 883, 890 (9th Cir. 2011). A petitioner is entitled to an

evidentiary hearing if he makes “a good-faith allegation that would, if true, entitle

him to equitable tolling.” Laws v. Lamarque, 351 F.3d 919, 921 (9th Cir. 2003).

      Fuentes-Garcia has made colorable allegations sufficient to warrant an

evidentiary hearing. He has alleged that he was deprived of materials from the

district court’s docket for a substantial portion of the limitations period, and

“[d]eprivation of legal materials is the type of external impediment for which we

have granted equitable tolling.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008,

1013 (9th Cir. 2009). He has also alleged that he was reasonably diligent in
                                           -3-
pursuing his petition, but was stymied by the district court clerk’s mistaken belief

that he had not sent payment for the docket sheet and/or the prison’s delay in

disbursing the requisite funds. See Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.

1999) (“When external forces, rather than a petitioner’s lack of diligence, account

for the failure to file a timely claim, equitable tolling of the statute of limitations

may be appropriate.”).

      The district court concluded that the case documents were irrelevant to

Fuentes-Garcia’s ineffective assistance of counsel claims, despite Fuentes-Garcia’s

allegation that the materials were “very important and necessary.” This allegation

is bolstered by the fact that some of the documents he requested, such as the

government’s plea memorandum and transcripts of his sentencing hearing, appear

to generally relate to his claims concerning his attorney’s performance during plea

negotiations and sentencing. Because there are “circumstances consistent with

petitioner’s petition . . . under which he would be entitled . . . to equitable tolling,”

the district court abused its discretion in dismissing the motion without first

developing the factual record. Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th

Cir. 2000) (en banc) (per curiam).

      VACATED AND REMANDED.
