                                                                               FILED
                           NOT FOR PUBLICATION                                     JUL 29 2011

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



                            FOR THE NINTH CIRCUIT


DANNY MARTINEZ VALDEZ,                           No. 09-55150

              Petitioner - Appellant,            D.C. No. 5:07-cv-01444-AHS-
                                                 RCF
  v.

V. M. ALMAGER,                                   MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                  Alicemarie H. Stotler, District Judge, Presiding

                        Argued and Submitted May 2, 2011
                              Pasadena, California

Before: PREGERSON, FISHER and BERZON, Circuit Judges.

       Danny Valdez appeals the district court’s judgment dismissing his habeas

petition as untimely. We vacate and remand.

       1.    The district court denied statutory tolling for the 82-day interval

between the California Court of Appeal’s denial of Valdez’s second habeas



        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
petition and Valdez’s filing of his third petition in the California Supreme Court

because Valdez “offer[ed] no justification for the delay.” In his objections to the

magistrate judge’s report and recommendation, however, Valdez, proceeding pro

se, offered an explanation for the delay, arguing that he did not have access to trial

transcripts and other legal materials. See Brown v. Roe, 279 F.3d 742, 745-46 (9th

Cir. 2002) (holding that the district court abused its discretion by failing to

consider a pro se petitioner’s tolling argument, even though it was raised for the

first time in objections to the magistrate judge’s report and recommendation).

Valdez’s explanation may have merit and should be addressed by the district court

on remand. As the district court has already noted, there is, even in the existing

record, evidence that Valdez diligently sought the transcripts. See Report &

Recommendation Sept. 26, 2008, at 4. There is also reason to conclude that the

lack of transcripts excused the delay, given that the California Superior Court had

previously denied relief on account of Valdez’s failure to provide record support to

substantiate his claims. Valdez should be permitted to file a supplemental

opposition to the motion to dismiss so that he may further address these issues.

      2.     Valdez also sought discovery to establish equitable tolling during the

168-day interval between the California Supreme Court’s denial of his third habeas

petition and the filing of his federal habeas petition. The district court denied the


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motion by assuming that Valdez was seeking tolling for only 41 days. Valdez’s

discovery motion, however, covered the entire 168-day period. The requested

discovery thus could have supported sufficient equitable tolling to render his

petition timely. See Brown, 279 F.3d at 744, 746 (holding that the district court

erred by dismissing a habeas petition as untimely when the pro se petitioner had

sought discovery needed for the factual development of his equitable tolling

claim).

      For these reasons, we vacate the judgment and remand to the district court to

permit Valdez to conduct the requested discovery and present additional argument

on his statutory and equitable tolling claims. In particular, after permitting Valdez

to conduct the requested discovery, the court should reconsider whether Valdez is

entitled to statutory tolling during the 82-day interval between his state petitions

and whether he is entitled to equitable tolling during the 168-day interval – or

some portion thereof – between his state and federal petitions.

      Valdez is advised that, to obtain equitable tolling, he must show “‘(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) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005)). “The movant must show that the extraordinary circumstances ‘were the


                                           3
cause of his untimeliness.’” United States v. Buckles, --- F.3d ----, 2011 WL

2150992, at *5 (9th Cir. June 2, 2011) (quoting Bryant v. Ariz. Attorney Gen., 499

F.3d 1056, 1061 (9th Cir. 2006)).

      We decline the state’s invitation to consider whether the certificate of

appealability was improvidently granted. See Phelps v. Alameda, 366 F.3d 722,

726 (9th Cir. 2004) (“[M]erits panels are not required to examine allegedly

defective COAs in the face of jurisdictional challenges.”).

      VACATED AND REMANDED.




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