                                                                                  FILED
                             NOT FOR PUBLICATION                                  NOV 01 2013

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



                             FOR THE NINTH CIRCUIT


JUAN VALENZUELA,                                   No. 10-56052

                Petitioner - Appellant,            D.C. No. 2:10-cv-02428-DSF-AN

    v.
                                                   MEMORANDUM*
L.S. McEWEN, Warden,

                Respondent - Appellee.


                     Appeal from the United States District Court
                        for the Central District of California
                      Dale S. Fischer, District Judge, Presiding

                        Argued and Submitted October 7, 2013
                                Pasadena, California

Before: PREGERSON, WARDLAW, and TALLMAN, Circuit Judges.

         California state prisoner Juan Valenzuela appeals the district court’s

dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely. We have

jurisdiction under 28 U.S.C. § 2253 and 28 U.S.C. § 1291. We vacate the district

court’s order dismissing the habeas petition as time-barred and remand for an



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
evidentiary hearing to determine whether Valenzuela is entitled to equitable

tolling.

       A petitioner is entitled to equitable tolling if he can demonstrate that he has

diligently pursued his rights and an extraordinary circumstance stood in his way

and prevented timely filing. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010).

Equitable tolling is a highly fact-intensive inquiry, and “the district court is in a

better position to develop the facts and assess their legal significance.”

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

curiam).

       On the basis of the existing record, “it cannot be conclusively determined

that [Valenzuela] is not entitled to equitable tolling.” Porter v. Ollison, 620 F.3d

952, 960 (9th Cir. 2010). The district court’s timeliness determination was made

before it received a response from the custodian or held an evidentiary hearing.

Accordingly, we are unable to determine whether Valenzuela’s habeas counsel was

retained to pursue federal habeas, and whether Valenzuela diligently pursued his

rights. Thus, “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.

       We decline to expand the certificate of appealability to include Valenzuela’s

“actual innocence” claim. No reasonable jurist could determine that the facts as
presented by Valenzuela constitute a credible showing of actual innocence. See

Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc).

      We VACATE the district court’s order dismissing the petition as untimely

and REMAND for an evidentiary hearing to determine whether Valenzuela has

demonstrated that he is entitled to equitable tolling.

      VACATED AND REMANDED. Each party shall bear its own costs on

appeal.
