                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 ARMANDO JOSE SOSSA,                                    No. 10-56104
              Petitioner-Appellant,
                                                          D.C. No.
                        v.                             2:08-cv-01549-
                                                         SVW-FMO
 RALPH M. DIAZ, Warden,
              Respondent-Appellee.
                                                          OPINION


         Appeal from the United States District Court
             for the Central District of California
         Stephen V. Wilson, District Judge, Presiding

                    Argued and Submitted
              March 4, 2013—Pasadena, California

                     Filed September 10, 2013

    Before: Richard A. Paez and Paul J. Watford, Circuit
     Judges, and Matthew F. Kennelly, District Judge.*

                       Opinion by Judge Paez




  *
     The Honorable Matthew F. Kennelly, District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
2                          SOSSA V. DIAZ

                           SUMMARY**


                          Habeas Corpus

    The panel reversed the district court’s dismissal as
untimely of California State prisoner Armando Jose Sossa’s
habeas corpus petition challenging the constitutionality of his
second degree robbery conviction.

     The panel held that Sossa is entitled to equitable tolling
on the ground that he relied on the assigned magistrate
judge’s order extending the filing deadline beyond the
statutory limitation. The panel also held that Sossa
sufficiently alleged that he was precluded from filing his
habeas petition within the time period provided in the
magistrate judge’s order to warrant further development of
the record. The panel remanded to the district court for
further proceedings to determine whether Sossa is eligible
for equitable tolling on the ground that he was unable to
utilize the prison’s law library and other resources, and also
whether he was entitled to the statutory tolling to which the
magistrate judge assumed he was for purposes of his ruling.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                        SOSSA V. DIAZ                           3

                          COUNSEL

Jan B. Norman, Los Angeles, California, for Petitioner-
Appellant.

Michael Katz, Deputy Attorney General, State of California,
Los Angeles, California, for Respondent-Appellee.


                          OPINION

PAEZ, Circuit Judge:

    State prisoner Armando Jose Sossa, proceeding pro se,
filed a petition for a writ of habeas corpus in the district court
challenging the constitutionality of his second degree robbery
conviction. The district court dismissed the petition on the
ground that it was untimely. We hold that Sossa is entitled to
equitable tolling on the ground that he relied on the assigned
magistrate judge’s order extending the filing deadline beyond
the statutory limitation. We further hold that Sossa has
sufficiently alleged that he was precluded from filing his
habeas petition within the time period provided in the
magistrate judge’s order to warrant further development of
the record. Therefore, we reverse the district court’s
judgment and remand for further proceedings.

                     I. BACKGROUND

    Sossa was convicted of second degree burglary in 2004.
He was sentenced to thirty-five years to life, and the
California Court of Appeal affirmed his conviction and
sentence. On November 2, 2005, the California Supreme
Court denied Sossa’s petition for review. For purpose of the
4                            SOSSA V. DIAZ

one-year limitations period of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”), 28 U.S.C. § 2244(d)(1)(A),
Sossa’s conviction became final ninety days later on January
31, 2006. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.
1999).

    On October 22, 2006, Sossa filed a pro se petition for a
writ of habeas corpus in the Los Angeles Superior Court
seeking to vacate his conviction and sentence, which was
denied in November 2006.1 In April 2007, he next filed a pro
se habeas petition in the California Court of Appeal, which
was denied in May 2007. Several months later, in August
2007, Sossa filed a pro se habeas petition in the California
Supreme Court, which was denied on February 13, 2008.

    On February 24, 2008, Sossa filed a pro se petition for a
writ of habeas corpus in the district court. To file his petition,
Sossa used the form petition provided by the district court. In
the section of the form petition where specific claims for
relief must be enumerated, Sossa wrote “See Attached
Petition” but failed to include any attachment. On March 12,
2008, the magistrate judge dismissed the petition, for failure
to state a claim, with leave to amend within thirty days (by
April 11, 2008).



      1
         The district court—and the parties—assumed that Sossa
“constructively” filed each petition on the date that he delivered the
petition to the prison authorities. We see no reason not to apply this
assumption to the dates at issue here. “Under the ‘prison mailbox rule’ of
Houston v. Lack, 487 U.S. 266 (1988), a prisoner’s federal habeas petition
is deemed filed when he hands it over to prison authorities for mailing to
the district court.” Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001).
“[T]he same rule applies to prisoners filing habeas petitions in both federal
and state courts.” Id. at 1223.
                       SOSSA V. DIAZ                         5

     On April 6, 2008, Sossa filed a motion for an extension of
time to file his First Amended Petition (“FAP”), alleging
generally that there were “circumstances out of the control of
petitioner which will hamper his ability to make
amendments” to the FAP. Three days later, on April 9, 2008,
the magistrate judge granted Sossa’s motion for an extension
of time to amend his petition, setting the new filing deadline
as May 9, 2008. On May 5, 2008, Sossa filed a second
motion seeking to extend the deadline, stating that “[d]ue to[]
circumstances out of the physical control of petitioner such as
institutional lock-downs and conflicting library operational
hours, petitioner will need” another 30 days to complete and
file his FAP. On May 8, 2008, the magistrate judge granted
Sossa’s motion, setting the new deadline as “June 9, 2008,”
and further stating: “No further extensions will be granted.
Failure to file a [FAP] will result in dismissal of the case.”
(bold in original).

    Before the June 9 deadline, on June 7, 2008, Sossa filed
a motion seeking an additional five-day extension because
prison conditions had prevented him from assembling his
petition and the necessary facilities would not reopen until
June 10—the day after the deadline set by the magistrate
judge. The magistrate judge received and rejected Sossa’s
motion on June 11, 2008, ordering it not to be filed and citing
his prior order that “no further extensions will be granted.”

    Also on June 11, 2008, Sossa filed his FAP. In response,
Respondent (“the State”) filed a motion to dismiss the
petition on the ground that the FAP was untimely. Sossa
opposed the motion. The magistrate judge issued a report and
recommendation (“R&R”) recommending that the FAP be
dismissed with prejudice as untimely. He determined that the
judgment in Sossa’s criminal case became final on January
6                           SOSSA V. DIAZ

31, 2006 and AEDPA’s one-year statute of limitations
expired on January 31, 2007, absent any tolling. He then
“assum[ed] without deciding that [Sossa] is entitled to
statutory tolling for his complete round of state collateral
review from October 22, 2006, to February 13, 2008.”
“When [Sossa] filed his habeas petition in the Los Angeles
County Superior Court on October 22, 2006, 264 days of his
one year statute of limitations period had run [since his
conviction became final on January 31, 2006]. Accordingly,
[Sossa] had until May 24, 2008, 101 days after February 13,
2008, to file the instant Petition.” (bold in original). He thus
concluded that Sossa’s original February 24, 2008 petition
was timely.

    However, the magistrate judge also found that the FAP,
filed on June 11, 2008, did not “relate back” to the filing of
the original petition because the original petition “failed to set
forth any claims for relief.”2 Therefore, he found that the
FAP was filed 18 days after the May 24, 2008 deadline and
was thus untimely. He further found that Sossa was not
entitled to equitable tolling due to prison lock-downs and lack
of access to the law library.

     Sossa filed a motion seeking discovery that would support
his objections to the R&R, which the magistrate judge denied.
Without discovery, Sossa filed objections to the R&R. For
the first time, he argued that he was entitled to equitable
tolling based on his reliance on the magistrate judge’s orders
extending the habeas filing deadline. The district court
adopted the R&R and dismissed the FAP with prejudice. The
district court “exercise[d] its discretion and decline[d] to

 2
   Sossa does not appeal the district court’s ruling that his June 11, 2008
FAP does not “relate back” to his February 24, 2008 petition.
                            SOSSA V. DIAZ                                 7

consider” Sossa’s argument that he relied on the magistrate
judge’s orders extending the filing deadline. The district
court then proceeded to conclude that “even on the merits”
Sossa’s arguments for equitable tolling fail.3

 II. JURISDICTION AND STANDARD OF REVIEW

     We have jurisdiction to review a final judgment of the
district court under 28 U.S.C. § 1291. “We review de novo
the district court’s denial of a habeas corpus petition for
failure to comply with the one-year statute of limitations” of
AEDPA. Espinoza-Matthews v. California, 432 F.3d 1021,
1025 (9th Cir. 2005) (citing Laws v. Lamarque, 351 F.3d 919,
922 (9th Cir. 2003)). “If the facts underlying a claim for
tolling of the habeas limitations period are undisputed, the
question whether the statute of limitations should be tolled is
reviewed de novo. But otherwise a district court’s findings
of fact are reviewed for clear error.” Id. (citing Spitsyn v.
Moore, 345 F.3d 796, 799 (9th Cir. 2003)).

                         III. DISCUSSION

   A state prisoner must file his federal habeas petition
within one year of when his conviction becomes final.


 3
   The district court denied a certificate of appealability (“COA”), but we
granted a COA to address “whether the district court properly dismissed
appellant’s amended 28 U.S.C. § 2254 petition as untimely.” When a
COA is granted as to a procedural issue, we have jurisdiction to review
that issue even when the COA fails to identify a constitutional issue.
Gonzalez v. Thaler, 132 S.Ct. 641, 646, 648 (2012). Here, the COA
concludes that Sossa’s petition “states at least one federal constitutional
claim debatable among jurists of reason, including but not limited to
whether counsel was ineffective for failing to request a jury instruction on
voluntary intoxication.”
8                       SOSSA V. DIAZ

28 U.S.C. § 2244(d)(1). This one-year statute of limitations
may be statutorily tolled. Id. at § 2244(d)(2) (“The time
during which a properly filed application for State post-
conviction or other collateral review with respect to the
pertinent judgment or claim is pending shall not be counted
toward any period of limitation under this subsection.”).

    Beyond statutory tolling, federal habeas petitioners may
also be entitled to equitable tolling of the statute of
limitations. Holland v. Florida, 130 S.Ct. 2549, 2560 (2010)
(holding that “§ 2244(d) is subject to equitable tolling in
appropriate cases”); Ford v. Gonzalez, 683 F.3d 1230, 1237
(9th Cir.), cert. denied, 133 S.Ct. 769 (2012). “[A] petitioner
is entitled to equitable tolling only if he shows (1) that he has
been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.” Ford, 683 F.3d at 1237 (quoting Holland,
130 S.Ct. at 2562) (internal quotation marks omitted). “The
diligence required for equitable tolling purposes is reasonable
diligence, not maximum feasible diligence.” Id. (quoting
Holland, 130 S.Ct. at 2565) (internal quotation marks
omitted).

    After Holland, we have continued to rely on our previous
equitable tolling cases in which we held that equitable tolling
is available “only when extraordinary circumstances beyond
a prisoner’s control make it impossible to file a petition on
time and the extraordinary circumstances were the cause of
[the prisoner’s] untimeliness.” Id. (quoting Bills v. Clark,
628 F.3d 1092, 1097 (9th Cir. 2010) (quoting Spitsyn v.
Moore, 345 F.3d 796, 799 (9th Cir. 2003))) (alterations in
Ford) (internal quotation marks omitted); see also Lakey v.
Hickman, 633 F.3d 782, 786 (9th Cir. 2011) (citing Ramirez
v. Yates, 571 F.3d 993, 997 (9th Cir. 2009)). “[T]he
                       SOSSA V. DIAZ                         9

requirement that extraordinary circumstances ‘stood in his
way’ suggests that an external force must cause the
untimeliness, rather than, as we have said, merely ‘oversight,
miscalculation or negligence on [the petitioner’s] part, all of
which would preclude the application of equitable tolling.’”
Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011 (9th Cir.
2009) (quoting Harris v. Carter, 515 F.3d 1051, 1055 (9th
Cir. 2008)).

    Nonetheless, “[g]rounds for equitable tolling under
§ 2244(d) are ‘highly fact-dependent.’” Laws, 351 F.3d at
922 (quoting Whalem/Hunt v. Early, 233 F.3d 1146, 1148
(9th Cir. 2000) (en banc) (per curiam)). Moreover, the
Supreme Court has “made clear that often the exercise of a
court’s equity powers . . . must be made on a case-by-case
basis. . . . [We] recognize that courts of equity can and do
draw upon decisions made in other similar cases for guidance.
Such courts exercise judgment in light of prior precedent, but
with awareness of the fact that specific circumstances, often
hard to predict in advance, could warrant special treatment in
an appropriate case.” Holland, 130 S. Ct. at 2563 (internal
citations and quotation marks omitted); see also Doe v.
Busby, 661 F.3d 1001, 1011 (9th Cir. 2011) (noting that
“[l]ike any equitable consideration, whether a prisoner is
entitled to equitable tolling under AEDPA will depend on a
fact-specific inquiry by the habeas court which may be
guided by ‘decisions made in other similar cases’” (quoting
Holland, 130 S. Ct. at 2563)).

    Sossa argues that he is entitled to equitable tolling
because he (1) relied on the magistrate judge’s orders
extending the filing deadline beyond AEDPA’s limitations
period, and (2) was precluded from filing his FAP by prison
10                      SOSSA V. DIAZ

lock-downs and limited library access. We address each
argument in turn.

        A. Reliance on magistrate judge’s orders

     We hold that Sossa reasonably relied on the magistrate
judge’s extensions of time to file his habeas petition, and
therefore is entitled to equitable tolling from March 12, 2008
(the date on which the magistrate judge first set a deadline for
filing a FAP) through at least June 9, 2008 (the date set by the
magistrate judge as the final filing deadline). We reject the
State’s argument that it was Sossa’s duty to investigate how
these extensions of time related to AEDPA’s statute of
limitations. Before reaching the merits of this issue, we
address the State’s contention that Sossa waived this
argument by failing to raise it until he objected to the
magistrate judge’s R&R. We hold that he did not waive the
argument and further conclude that because Sossa was a pro
se petitioner making a novel claim, the district court abused
its discretion by declining to consider the argument on the
merits.

           1. Sossa did not waive his argument.

    The State argues that Sossa forfeited his argument—that
he relied on the magistrate judge’s orders extending the filing
deadline—by not raising it in his opposition to the State’s
motion to dismiss. The State raised two arguments in its
motion to dismiss: (1) that Sossa wasn’t “entitled to interval
or ‘gap’ tolling” between November 29, 2006 and April 22,
2007; and (2) that Sossa’s FAP claims did not “relate back”
to his original habeas petition. In his opposition to the
motion to dismiss, Sossa essentially contested these two
arguments and asserted that the State’s motion was itself
                             SOSSA V. DIAZ                                11

untimely (as it was filed three days after the court’s deadline
despite five extensions of time).4 In his opposition to the
motion to dismiss, however, Sossa did not argue that he had
relied on the magistrate judge’s orders as extending the
statute of limitations.

    In his R&R, the magistrate judge assumed without
deciding that Sossa was entitled to statutory tolling, but
concluded that the FAP did not relate back to the original
petition and was thus untimely by 18 days. In his objections
to the R&R, Sossa argued for the first time that he had relied
on the magistrate judge’s extensions of the filing deadline and
assumed that by complying with the extended deadline his
FAP would be timely. In adopting the R&R, the district court
stated that it was exercising its discretion under Howell to
“decline to consider the new facts and arguments” that Sossa
asserted in his objections. See United States v. Howell,
231 F.3d 615, 621–22 (9th Cir. 2000). Nonetheless, the
district court then proceeded to reject Sossa’s argument on
the merits.

    Assuming without deciding that the district court actually
exercised its discretion not to address Sossa’s new
arguments—and merely addressed the merits “in the
alternative”—the district court abused its discretion. See id.
at 622 (emphasizing “that in making a decision on whether to
consider newly offered evidence, the district court must


 4
   It is ironic that the State’s motion to dismiss for untimeliness was itself
untimely. Nonetheless, the district court could have raised the statute of
limitations issue sua sponte, and therefore the State’s untimely motion is
of no consequence in this case. See Day v. McDonough, 547 U.S. 198,
209 (2006) (holding “that district courts are permitted, but not obliged, to
consider, sua sponte, the timeliness of a state prisoner’s habeas petition”).
12                          SOSSA V. DIAZ

actually exercise its discretion, rather than summarily
accepting or denying the motion”).5

    We have repeatedly held that in certain circumstances a
district court abuses its discretion when it fails to consider
new arguments or evidence proffered by a pro se habeas
petitioner, like Sossa, in objecting to a magistrate judge’s
R&R. See Espinoza-Matthews, 432 F.3d at 1026 n.4; Brown
v. Roe, 279 F.3d 742, 745–46 (9th Cir. 2002). In Brown, we
held that “the district court abused its discretion . . . in failing
to consider Brown’s equitable tolling claim,” id. at 745,
raised for the first time in Brown’s objections to the
magistrate judge’s R&R, id. at 743–44. We reversed the
dismissal of Brown’s habeas petition for the sufficient reason
that “unlike the litigant in Howell, who was represented by
counsel, Brown was a pro se petitioner at all relevant times
and was making a relatively novel claim under a relatively
new statute.” Id. at 745. We then cited to a litany of
Supreme Court precedent for the proposition that pro se
petitioners are different. Id. In Espinoza-Matthews, we
reemphasized that a petitioner’s pro se status requires a
district court to consider evidence raised for the first time in
objections to an R&R. We held that “[b]ecause Espinoza-
Matthews was a pro se petitioner at all relevant times . . . the
district court should have exercised its discretion to review
the supplemental evidence that Espinoza-Matthews
submitted. For that reason we have reviewed that evidence
on this appeal.” Espinoza-Matthews, 432 F.3d at 1026 n.4;
see also Jones v. Blanas, 393 F.3d 918, 935 (9th Cir. 2004)
(relying on Brown to hold, in a § 1983 action, that when a pro
se prisoner plaintiff offered new evidence in objecting to a

  5
    We address the merits of Sossa’s argument infra in section III.A.2. and
reject the district court’s alternative merits holding as well.
                        SOSSA V. DIAZ                         13

magistrate judge’s R&R, “it would have been an abuse of
discretion for the district court not to consider the evidence”).

   Sossa was a pro se petitioner, making a novel claim in an
unsettled area of law. We therefore conclude that the district
court was obligated to consider Sossa’s new equitable tolling
argument raised in his objections to the R&R. The argument
was not waived and was properly preserved for our review.

          2. Sossa is entitled to equitable tolling.

    When the magistrate judge denied Sossa’s original habeas
petition, he granted a date certain by which Sossa could file
an amended petition, stating: “If petitioner still wishes to
pursue this action, he is granted until April 11, 2008, to file
a First Amended Petition for Writ of Habeas Corpus.” (bold
in original). Sossa then filed two successive motions
requesting additional time to file his FAP and the magistrate
judge granted each, ordering on May 8, 2008, that “Petitioner
shall file his [FAP] no later than June 9, 2008,” and further
providing that: “No further extensions will be granted.
Failure to file a [FAP] will result in dismissal of the case.”
(bold in original).

    We must determine whether the magistrate judge
“affirmatively misled” Sossa. Pliler v. Ford, 542 U.S. 225,
234 (2004). In our original opinion in Pliler, we had held that
a district court was required to give two specific warnings to
a pro se habeas petitioner who filed a “mixed” petition—one
containing exhausted and unexhausted claims. Ford v.
14                          SOSSA V. DIAZ

Hubbard, 330 F.3d 1086, 1092–93 (9th Cir. 2003).6 The
Supreme Court reversed our decision, reasoning that
“[d]istrict judges have no obligation to act as counsel or
paralegal to pro se litigants.” Pliler, 542 U.S. at 231. The
Court cautioned that “to the extent that [one] is concerned
with a district court’s potential to mislead pro se habeas
petitioners, the warnings [the habeas petitioner] advocates run
the risk of being misleading themselves.” Id. at 231–32. The
Court remanded the case, directing us to address the “concern
that [the petitioner] had been affirmatively misled.” Id. at
234; see id. at 235 (O’Connor, J., concurring) (providing the
fifth vote for the majority and stating that “if the petitioner is
affirmatively misled, either by the court or by the State,
equitable tolling might well be appropriate. This is a question
for the Ninth Circuit to consider on remand.”); see also Ford
v. Pliler, 590 F.3d 782, 784 (9th Cir. 2009); Harris, 515 F.3d


     6
     The two specific warnings we required related to our stay-and-
abeyance procedure, which allows a petitioner to exhaust claims in state
court without missing AEDPA’s statute of limitations.

         [T]he Ninth Circuit held that if a pro se prisoner files a
         mixed petition, the district court must give two specific
         warnings regarding the stay-and-abeyance procedure:
         first, that “it would not have the power to consider [a
         prisoner’s] motions to stay the [mixed] petitions unless
         he opted to amend them and dismiss the then-
         unexhausted claims,” and, second, if applicable, “that
         [a prisoner’s] federal claims would be time-barred,
         absent cause for equitable tolling, upon his return to
         federal court if he opted to dismiss the petitions
         ‘without prejudice’ and return to state court to exhaust
         all of his claims.”

Pliler, 542 U.S. at 231 (quoting Ford, 330 F.3d at 1092–93) (citations
omitted and alterations in Pliler).
                            SOSSA V. DIAZ                               15

at 1056; Brambles v. Duncan, 412 F.3d 1066, 1070 (9th Cir.
2005).

    On remand, the panel majority concluded that Ford was
not affirmatively misled by the district court’s statement that
he had the option “to dismiss his [mixed] petitions without
prejudice and then, after exhausting in state court the
previously unexhausted claims, to refile in federal court.”
Ford, 590 F.3d at 784–85. The majority relied heavily on the
fact that the Court had previously reviewed this case and
rejected the idea that the district court was required to give
specific advisements. Id. at 787–88 (noting that “[t]he Court
was explicit in holding that the door was open to Ford only
for a claim that he had been affirmatively misled ‘quite apart
from the District Court’s failure to give the two warnings’”
and that “Pliler does not leave us room to rule otherwise”
(citation omitted)). The majority concluded that, although
Ford’s subsequent federal habeas petition would necessarily
have been untimely, it was nonetheless accurate for the
district court to have used the term dismissal “without
prejudice.” Id. at 788–89 (noting that in Brambles, 412 F.3d
at 1068–70, “we explained that the court presented ‘accurate
options,’ one of which was dismissal without prejudice, even
though the options were given ‘twelve days after the
AEDPA’s one-year statute of limitations had expired’”).7


   7
     We note that the district court in Brambles provided an explicit
warning to the petitioner to avoid misleading him as to the statute of
limitations. In reference to the petitioner’s options in proceeding with his
mixed petition, the district court informed the petitioner that he could:

         Request this [c]ourt to dismiss the current petition
         without prejudice to any right petitioner may have to
         file a new petition once available state remedies are
         exhausted as to all claims. (Petitioner is cautioned
16                       SOSSA V. DIAZ

Limited by the Court’s specific rejection of Ford’s argument
that the district court should have advised him differently, the
majority reasoned that “[i]n order to show that he was
affirmatively misled, Ford needed to point to some
inaccuracy in the district court’s instructions” to him, not
merely to his “misunderstanding of accurate information.”
Id. at 788–89.

    Ford and Brambles do not control the outcome here.
Unlike the petitioners in those cases, Sossa has pointed to an
inaccuracy in the court’s instructions. Sossa premised his
request to extend the time for filing an amended petition on
the understanding that if the request were granted and Sossa
filed his amended petition by the new due date, the petition
would be deemed timely. (No litigant, pro se or otherwise,
asks for an extension of time to file an untimely petition.) By
granting Sossa’s request and setting the new deadline as June
9, 2008, the magistrate judge conveyed that the premise of
Sossa’s request was accurate. But the premise, of course, was
not accurate. Thus, the magistrate judge’s order granting
Sossa’s extension request affirmatively misled him in the
very manner that the Supreme Court’s decision in Pliler v.
Ford, and our decisions in Ford and Brambles, require.

    The Fifth Circuit faced similar circumstances in Prieto v.
Quarterman and granted the petitioner equitable tolling. The
Fifth Circuit explained:



        that recently amended 28 U.S.C. § 2244 limits the
        time period within which a petition may be filed.)
        (emphasis in original).

Brambles, 412 F.3d at 1068–69.
                        SOSSA V. DIAZ                         17

        The district court issued an order appointing
        counsel for Prieto and setting filing deadlines.
        Under the court’s scheduling order, Prieto’s
        habeas petition was due by May 3, 2002. On
        April 16 Prieto moved for, and the district
        court granted, an extension of time to file his
        habeas petition. Under the district court’s
        order, Prieto’s petition was due by September
        6, 2002. On August 2, 2002, more than a
        month before that deadline, Prieto filed his
        habeas petition. The State responded with a
        motion to dismiss on the ground that Prieto’s
        petition was untimely because he filed it after
        the applicable limitations period expired.

Prieto v. Quarterman, 456 F.3d 511, 513 (5th Cir. 2006).
Under AEDPA, “to be timely, Prieto had until approximately
the end of April 2002 to file for federal post-conviction relief.
Instead, Prieto filed his habeas petition almost 100 days late,
on August 2, 2002.” Id. at 514.

     The Fifth Circuit held that these “circumstances are
sufficiently rare and exceptional to warrant equitable tolling.”
Id. The court reasoned that “[a]lthough AEDPA applied to
Prieto’s application, the district court’s order granting him
additional time for the express purpose of filing his petition
at a later date was crucially misleading.” Id. at 515. The text
of the district court’s order there almost exactly parallels that
of the magistrate judge’s order here. “The district court
granted Prieto’s motion, stating ‘[b]efore the Court is
Petitioner’s Motion for Extension of Time to [File] [a] Writ
of Habeas Corpus. The Court finds that the motion is
meritorious and it is GRANTED. Petitioner’s writ of habeas
corpus shall be filed no later than September 6, 2002.’” Id.
18                           SOSSA V. DIAZ

at 514 (first and second alterations in original). Thus, the
Fifth Circuit held that “the district court erred in not granting
equitable tolling of the [AEDPA] statute of limitations.” Id.
at 516.

    The State first argues that the Prieto court failed to apply
the Supreme Court’s then-recent decision in Day, 547 U.S.
198, which held that a district court could sua sponte raise the
untimeliness of a habeas petition where the State had failed
to do so. This argument is inapposite. Day merely restated
that “‘[d]istrict judges have no obligation to act as counsel or
paralegal to pro se litigants,’” id. at 210 (quoting Pliler,
542 U.S. at 231), and said that a court has “no obligation” to
“doublecheck the State’s math,” id. at 209–10. However, the
lack of any such obligation does not free the district court to
mislead a petitioner. The Court’s holding has no bearing on
the question of whether a district court’s affirmative
extension of a filing deadline misled a petitioner.8 Moreover,
the Fifth Circuit continues to cite Prieto with approval. See
Mathis v. Thaler, 616 F.3d 461, 475 n.15 (5th Cir. 2010);
United States v. Petty, 530 F.3d 361, 367 n.9 (5th Cir. 2008)
(noting that Davis v. Johnson, 158 F.3d 806, 812 (5th Cir.
1998) held the same as Prieto).




 8
    Indeed, even in Day, the Court was careful to point out that where the
timeliness issue was not initially raised, the district court “must assure
itself that the petitioner is not significantly prejudiced by the delayed focus
on the limitation issue, and determine whether the interests of justice
would be better served by addressing the merits.” 547 U.S. at 210
(internal quotation marks omitted). Here, Sossa was significantly
prejudiced by the State’s failure to raise the timeliness issue until after the
magistrate judge had extended the filing deadline on which Sossa relied.
                            SOSSA V. DIAZ                               19

    The State then argues on policy grounds that Prieto was
otherwise wrongly decided.9 The State contends that Prieto’s
holding places an “enormous burden . . . on federal magistrate
judges and district courts” because it forces them to
“continuously calculate the AEDPA timeliness of every
federal habeas petition until final judgment.” But there’s no
evidence that the Fifth Circuit has encountered such an
unholy burden. Indeed, part of the Fifth Circuit’s rationale
was that a court order extending a habeas filing deadline
beyond the AEDPA’s statute of limitations, and a habeas
petitioner’s reliance on the court’s deadline to miss the
AEDPA deadline, was “sufficiently rare and exceptional to


  9
    The State also argues that Harris and Johnson v. Quarterman resolve
the issue presented. See Harris, 515 F.3d 1051; Johnson v. Quarterman,
483 F.3d 278 (5th Cir. 2007). We disagree. In Harris, we held that a
petitioner was entitled to equitable tolling when he relied on a Ninth
Circuit case that was later overruled by the Supreme Court. Harris,
515 F.3d at 1052. Sossa presents a distinctly different question. As
relevant here, the import of Harris is that we interpreted the controlling
Supreme Court case to mean “that equitable tolling would likely be
appropriate in at least some situations where a petitioner is affirmatively
misled by a district court.” Id. at 1056. We did not address and we have
never ruled on whether extending a filing deadline beyond the statutory
deadline constitutes an “affirmatively misle[ading]” act.

      Johnson is inapposite. There, petitioner’s counsel missed the AEDPA
filing deadline. In seeking equitable tolling, counsel argued that he relied
on the State’s attorney’s agreement to extend the deadline. Johnson,
483 F.3d at 287. The Fifth Circuit rejected this argument, explaining that
“Johnson’s counsel must have known that an attorney for the State has no
authority to extend the statutory deadline established by Congress.” Id.
Under the circumstances, where Johnson’s counsel had nine months to
file, waited until the last moment, and then relied on an agreement with
the State (that the State denied making) when he missed the deadline, the
Fifth Circuit held that Johnson was not misled and therefore not entitled
to equitable tolling. Id. at 287–88.
20                         SOSSA V. DIAZ

warrant equitable tolling.” Prieto, 456 F.3d at 514. The fact
that we have never squarely addressed this issue is further
evidence that such a flood-gates argument is a non-starter.

    Nor is the State’s logic sound. First, Sossa offers a
compelling alternative to the State’s crisis scenario; namely
that the magistrate judge could easily have avoided any
reliance by including in the order a disclaimer stating “that by
granting the . . . extension, the court was making no finding
or representation that the petition was not subject to dismissal
as untimely.” This added clarification would place no
additional burden on the district courts and would eliminate
a petitioner’s otherwise valid reliance on the court’s
extension of time.

    Second, a district court need not undertake a statute of
limitations analysis each time a petitioner requests an
extension of time to file a habeas petition. Rather, it should
be the State’s responsibility to object to an extension of time
beyond the statutory deadline if it intends to seek dismissal of
the petition as untimely. Under the State’s logic, the State
may lie in wait while a district court extends a filing deadline,
and only thereafter oppose a petition as untimely once it has
been filed within the time allowed by the court. In most
circumstances, the State easily could point to the face of the
petition, which, as here, includes the relevant dates of
decision and raise the matter of timeliness in opposing a
petitioner’s request for an extension of time.10


 10
    We recognize that Sossa’s second motion to extend the filing date was
labeled as an “ex parte” motion. The record is not clear whether the State
was informed of the filing, and the magistrate judge granted the extension
on the same day the motion was filed. But, this fact has no bearing on our
conclusion that Sossa reasonably relied on the magistrate judge’s orders,
                            SOSSA V. DIAZ                               21

    We conclude that the magistrate judge’s orders
affirmatively led Sossa to believe that he had until June 9,
2008 to file his FAP. Sossa’s reliance on these orders entitles
him to equitable tolling of the statute of limitations from
March 12, 2008 through June 9, 2008.

    Our analysis does not end here because Sossa did not file
his FAP until June 11, 2008—two days after the magistrate
judge’s deadline.11 Thus, we turn to the question of whether
Sossa is entitled to additional equitable tolling.

        B. Inability to access library and resources

     With respect to these final two days, we hold that Sossa
sufficiently alleged that he was precluded from filing his
habeas petition because of his inability to utilize the prison’s
law library and other resources such that further development
of the record is warranted to address this issue. Therefore, we
remand to the district court for further proceedings to
determine whether Sossa is eligible for equitable tolling on
that ground and also whether he was entitled to the statutory
tolling to which the magistrate judge assumed he was for
purposes of his ruling.

    The magistrate judge dismissed Sossa’s original habeas
petition on March 12, 2008, because Sossa failed to attach the


although we recognize that the State may not have been fully aware of
Sossa’s motion. In any event, the magistrate judge could have avoided
creating a reliance interest by including a statement in the order as noted
supra in the text.
  11
    We reject the State’s argument that Sossa’s two-day delay in filing
renders the logic of Prieto inapplicable. There is little question here that
Sossa was aware of and sought to meet the June 9, 2008 deadline.
22                      SOSSA V. DIAZ

actual petition containing his claims. Sossa filed his FAP on
June 11, 2008. In his R&R finding the FAP untimely, the
magistrate judge found that Sossa was not entitled to
equitable tolling due to lock-downs and lack of access to the
law library. In his motion for discovery after the magistrate
judge issued the R&R, Sossa specifically sought documents
reflecting prison lock-downs for periods including “March
15, 2008 thru May 30, 2008.” The magistrate judge denied
this discovery request on the ground that it would not lead to
relief for Sossa because “institutional lockdowns generally do
not constitute extraordinary circumstances that warrant the
granting of equitable tolling.” Although under different
circumstances we have concluded that “[o]rdinary prison
limitations on [a prisoner]’s access to the law library and
copier . . . [are] neither ‘extraordinary’ nor made it
‘impossible’ for [a particular prisoner] to file his petition in
a timely manner,” Ramirez v. Yates, 571 F.3d 993, 998 (9th
Cir. 2009) (internal citations omitted), the record does not
allow us to conclude that here.

    Here, Sossa sufficiently alleged that prison authorities
made it impossible for him to file his habeas petition by the
June 9, 2008 deadline. Because Sossa’s allegations warrant
further development of the record, we must remand to the
district court for further proceedings. See Lott v. Mueller,
304 F.3d 918, 925–26 (9th Cir. 2002) (remanding for further
proceedings where “Lott’s allegations, if uncontroverted,
require an application of equitable tolling”). Sossa’s
allegations include the following:

    On March 19, 2008, Sossa filed a grievance form
complaining that even an inmate with “priority legal user”
status is limited to three days of library access per week and
that due to his work schedule, Sossa would be permitted only
                        SOSSA V. DIAZ                        23

one day of weekly access. His request for a rule change was
denied. Sossa then applied for “priority legal user” status
(available to inmates with pending filing deadlines of 30 days
or less), once the court had set the June 9 filing deadline. He
stated that he applied for that status on or about May 13,
2008, but that two weeks of lock-downs ensued and he was
never called to the law library. He further stated that the
prison lost his “priority legal user” paperwork and only
allowed him to access the law library on Saturday, June 7,
2008—two days before his petition was due. Finally, Sossa
stated that on that date he “attempted to haphazardly throw
together [his] amended petition but as [he] received [his]
copies, pages were missing as the copy machine mis-stepped.
This was Saturday June 7th 2008 and [the law] library would
not open again until Tuesday June 10th 2008. . . . At this
juncture [he] appealed to the court (U.S. District Court) for an
emergency extension of 5 days.” That emergency motion
was rejected and ordered “not filed” by the magistrate judge
on June 11, 2008, and thus we are not privy to any additional
allegations it may have contained.

     If the evidence supports Sossa’s allegations that prison
conditions made filing the petition prior to the June 9
impossible, the prison’s provision of last-minute access to the
law library on June 7 does not undermine Sossa’s claim to
equitable tolling through June 11. See id. at 922–23 (finding
that were an inmate to have “reasonably believed that his
filing deadline would be upon him in six days” after having
had his legal materials returned to him after six weeks
without them, “[s]uch a fleeting period could have made a
timely filing by a pro se prisoner literally impossible” (citing
Rand v. Rowland, 154 F.3d 952, 958 (9th Cir. 1998) (en
banc))).      Indeed, as we have previously said, the
“impossibility” requirement should not be strictly imposed
24                          SOSSA V. DIAZ

because “imposing extraordinarily high evidentiary standards
on pro se prisoner litigants—who have already faced an
unusual obstacle beyond their control during the AEDPA
limitation period—runs against the grain” of our precedent.
Id. at 924; see Rand, 154 F.3d at 958 (concluding that
“affirmative measures are sometimes required to ensure that
a prisoner’s access to the courts is ‘adequate, effective, and
meaningful’” (quoting Bounds v. Smith, 430 U.S. 817, 822
(1977))); see also Holland, 130 S.Ct. at 2563 (emphasizing
that “often the exercise of a court’s equity powers . . . must be
made on a case-by-case basis . . . [and that courts must be
aware] of the fact that specific circumstances, often hard to
predict in advance, could warrant special treatment in an
appropriate case” (internal quotations and citations omitted)).

    Therefore, “[b]ecause 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.”
Whalem/Hunt, 233 F.3d at 1148.12



 12
    In its answering brief, the State argued that Sossa was not entitled to
equitable tolling on the basis of prison lock-downs and access to the law
library. However, the State declined to brief the question of whether
Sossa was entitled to a remand based on the same evidence and
allegations. Rather, the State construed this remedy as beyond the scope
of the COA. We disagree. The COA clearly granted Sossa leave to
appeal “whether the district court properly dismissed appellant’s amended
28 U.S.C. § 2254 petition as untimely.” The COA does not limit our
remedy here, and Sossa’s argument did not constitute an “uncertified”
issue. Therefore, Ninth Circuit Rule 22-1(f) does not require that we
afford the State an additional opportunity to respond to this argument.
                           SOSSA V. DIAZ                              25

                       IV. CONCLUSION

    We hold that Sossa is entitled to equitable tolling through
June 9, 2008, because he reasonably relied on the magistrate
judge’s orders extending his habeas filing deadline beyond
AEDPA’s statutory deadline. We further hold that Sossa’s
allegations regarding his access to the law library and other
resources may entitle him to equitable tolling through June
11, 2008, when he constructively filed his amended habeas
petition.

    We reverse the district court’s judgment dismissing
Sossa’s habeas petition as untimely. We remand for further
development of the record, including an evidentiary hearing
if warranted,13 to determine whether Sossa is eligible for
equitable tolling from June 9 to June 11, 2008, and whether
he is entitled to statutory and/or gap tolling for the time
period covering his state court collateral proceedings.

       REVERSED AND REMANDED.




  13
      We note that the district court may expand the record pursuant to
Rule 7 of the Rules Governing Section 2254 Cases in the United States
District Courts. If after reviewing any documents submitted pursuant to
Rule 7, the court determines that an evidentiary hearing is necessary, it
may hold one as allowed by Rule 8.
