                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

ROBERT JEROME ESPINOZA-MATTHEWS                  No. 04-56805
              Petitioner-Appellant,
                                                    D.C. No.
                v.
                                                 CV-03-00921-
PEOPLE OF THE STATE OF CALIFORNIA,                 RGK(Mc)
Attorney General,
                                                   OPINION
              Respondent-Appellee.
                                          
         Appeal from the United States District Court
            for the Central District of California
         R. Gary Klausner, District Judge, Presiding

                    Argued and Submitted
            October 21, 2005—Pasadena, California

                    Filed December 28, 2005

   Before: A. Wallace Tashima and Raymond C. Fisher,
Circuit Judges, and Milton I. Shadur, Senior District Judge.*

                    Opinion by Judge Shadur




   *The Honorable Milton I. Shadur, Senior United States District Judge
for the Northern District of Illinois, sitting by designation.

                                16749
              ESPINOZA-MATTHEWS v. CALIFORNIA         16751


                        COUNSEL

Maria E. Stratton, Federal Public Defender; Harry Simon,
Deputy Federal Public Defender; Federal Public Defender,
Los Angeles, California, for the petitioner-appellant.

Bill Lockyer, Attorney General; Robert R. Anderson, Chief
Assistant Attorney General; Gary W. Schons, Senior Assis-
tant Attorney General; Gary W. Brozio, Supervising Deputy
Attorney General; Erika Hiramatsu, Deputy Attorney Gen-
eral; Office of the Attorney General, San Diego, California,
for the respondent-appellee.
16752            ESPINOZA-MATTHEWS v. CALIFORNIA
                              OPINION

SHADUR, Senior District Judge:

   Robert Jerome Espinoza-Matthews (“Espinoza-Matthews”)
appeals the district court’s determination that his petition for
a writ of habeas corpus was barred by the one-year statute of
limitations set out in 28 U.S.C. § 2244(d).1 Espinoza-
Matthews claims that the statute of limitations governing his
habeas petition (1) should be equitably tolled both because he
was denied access to his legal materials while housed in
Administrative Segregation (“Ad/Seg”) and because of his
mental health problems and (2) should be statutorily tolled
because of the deprivation of legal materials.

   We have jurisdiction pursuant to Sections 1291 and 2253.
Because we hold that Espinoza-Matthews is entitled to equita-
ble tolling, we reverse the district court’s determination that
his habeas petition was untimely and remand for further pro-
ceedings consistent with this opinion. And because statutory
tolling would necessarily rest on a constitutional ground, one
that need not be addressed to arrive at our equitable tolling
decision, we refrain from deciding whether the same destina-
tion can be reached by the application of statutory tolling
principles (see Lott v. Mueller, 304 F.3d 918, 925 (9th Cir.
2002)).

                             Background

  On May 4, 2000 Espinoza-Matthews pleaded guilty to con-
spiracy to commit robbery, to three counts of robbery, to the
unlawful taking of a vehicle and to possession of a firearm by
an ex-felon, with special allegations as to a number of those
counts. After accepting Espinoza-Matthews’s plea, on June
15, 2000 the Riverside County Superior Court sentenced him
  1
   All further citations to Title 28 provisions will simply take the form
“Section—.”
                 ESPINOZA-MATTHEWS v. CALIFORNIA                16753
to 19 years and 8 months in state prison. On October 1, 2001
the California Court of Appeal substantially affirmed
Espinoza-Matthews’s conviction in an unpublished disposi-
tion.

   On December 10, 2001 Espinoza-Matthews filed a petition
for writ of habeas corpus in the California Supreme Court.
That petition was denied on April 17, 2002.

   Three days before that denial Espinoza-Matthews was
placed in Ad/Seg at California State Prison, Sacramento
(“Sacramento”) for his own protection, after he had been
assaulted and slashed by another inmate. Espinoza-Matthews
was housed in Ad/Seg from April 14, 2002 until March 2003,
with only one interruption for him to return to court on May
16, 2002 for resentencing.2

   Following his release from Ad/Seg, on March 30, 2003
Espinoza-Matthews signed and delivered to the prison warden
a request directed to the District Court for the Northern Dis-
trict of California, seeking an extension of time to file his fed-
eral habeas petition. Espinoza-Matthews claimed that he
needed an extension of at least 120 days because he had been
given no access to his legal property while he was in Ad/Seg
and because he was mentally ill. On June 18, 2003 that court
dismissed Espinoza-Matthews’s request for lack of jurisdic-
tion, noting that because Espinoza-Matthews had not yet filed
a habeas petition there was no case or controversy for the
court to decide.

  Without having waited for the court’s decision on his
request for an extension, on May 12, 2003 Espinoza-
  2
   While Espinoza-Matthews claims that he was released from Ad/Seg on
March 21, 2003, the record shows that he was received by the California
State Prison, Los Angeles County, 16 days earlier—on March 5. For pres-
ent purposes we will assume that March 5 was the end date of Espinoza-
Matthews’s Ad/Seg detention.
16754          ESPINOZA-MATTHEWS v. CALIFORNIA
Matthews signed his federal habeas petition, stating there that
he gave the petition to prison officials for mailing on that
date. Espinoza-Matthews’s petition raised three issues: (1)
that he had been on psychotropic medications since the date
of his arrest, (2) that his Sixth Amendment rights under
Miranda v. Arizona, 384 U.S. 436 (1966) had been violated
during police questioning and (3) that the prosecutor had tam-
pered with evidence, falsified reports and intimidated wit-
nesses. On July 24, 2003 the clerk of the District Court for the
Northern District of California filed the petition. Because it
had been filed in the wrong court, however, on July 31, 2003
that court transferred the petition to the Central District of
California, where it was filed on August 11, 2003.

   On October 16, 2003 the State moved to dismiss Espinoza-
Matthews’s petition because, among other reasons, it was
assertedly untimely. In response, on November 7, 2003
Espinoza-Matthews filed a “Motion for Order Permitting Peti-
tioner to Amend His Pleadings, etc.” Espinoza-Matthews
argued there (1) that his habeas petition was timely under Sec-
tion 2244(d)(1)(A), (2) that he was entitled to statutory tolling
because the “law library access scheme” at Sacramento was
a state-created impediment that prevented him from filing his
petition and (3) that he was entitled to equitable tolling
because he had a “serious mental illness” constituting an
extraordinary circumstance beyond his control.

   In his Report and Recommendation the magistrate judge
found no evidence that Espinoza-Matthews was entitled to
statutory or equitable tolling and therefore agreed with the
State that Espinoza-Matthews’s petition was untimely.
According to the magistrate judge, Espinoza-Matthews had
not “further described the ‘law library access scheme’ or his
‘serious mental illness’ or how they caused him to fail to file
a timely petition for writ of habeas corpus here.”

   On March 25, 2004 Espinoza-Matthews filed a “Traverse
to Notice of Motion and Motion to Dismiss Petition for Writ
               ESPINOZA-MATTHEWS v. CALIFORNIA             16755
of Habeas Corpus.” In his traverse Espinoza-Matthews argued
that he was entitled to statutory tolling not only because of the
prison’s library scheme but also because prison officials had
deprived him of his legal property from May 17, 2002 until
he was released from Ad/Seg in March 2003. Espinoza-
Matthews also contended that he was entitled to equitable
tolling based on the denial of his legal property and his mental
illness. While Espinoza-Matthews cited to “Exhibit H” to sup-
port his claim of mental incompetency, no Exhibit H was
attached to his traverse.

   After receiving Espinoza-Matthews’s traverse, the magis-
trate judge issued a Supplemental Report and Recommenda-
tion (“SR&R”), again rejecting Espinoza-Matthews’s
arguments for tolling the statute of limitations. In doing so the
magistrate judge first evaluated Espinoza-Matthews’s argu-
ment that he was denied access to his legal materials while in
Ad/Seg, albeit only under the rubric of statutory tolling. Find-
ing that Espinoza-Matthews had not specified which legal
papers were missing, how the absence of those papers pre-
vented him from filing his petition and “when, if ever,
[Espinoza-Matthews] regained control of his legal property,”
the magistrate judge rejected that claim. Second, as to
Espinoza-Matthews’s claim for equitable tolling based on his
mental problems, the magistrate judge found that there were
no “medical, psychiatric or psychological records” to support
Espinoza-Matthews’s claim and there was “considerable evi-
dence that petitioner was able to prepare and file legal docu-
ments” and administrative appeals during the period in
question.

   In response to the magistrate judge’s SR&R, Espinoza-
Matthews filed a timely objection with the district court.
Espinoza-Matthews argued there that he had been denied his
legal property during the whole time he was in Ad/Seg—not
simply starting in May 2002, when he was returned to court
for resentencing. Espinoza-Matthews attached additional evi-
dence demonstrating when he was transferred into and out of
16756            ESPINOZA-MATTHEWS v. CALIFORNIA
Ad/Seg and documenting his attempts to secure his legal
property while in Ad/Seg in an effort to prepare his habeas
petition. Finally, Espinoza-Matthews affixed his mental health
records.

   On August 27, 2004 the district court, following a “de
novo” review of “those portions of the [magistrate judge’s]
report to which objection [was] made,” adopted the magistrate
judge’s findings and recommendations. After the district court
denied Espinoza-Matthews a certificate of appealability
(“COA”), we granted Espinoza-Matthews a COA on several
issues:

        (1) Whether the district court erred in dismissing
      appellant’s 28 U.S.C. § 2254 petition as untimely;

        (2) Whether the deprivation of appellant’s legal
      property by the state prison system from May 2002
      until March 2003 constitutes a state-created impedi-
      ment to filing a timely Section 2254 petition;

        (3) Whether appellant is entitled to equitable toll-
      ing based on his mental health condition, see Calde-
      ron v. United States District Court (Kelly), 163 F.3d
      530, 541 (9th Cir. 1998) (en banc);3 and

         (4) Whether the district court erred in failing to
      hold an evidentiary hearing on the above tolling
      issues. See 28 U.S.C. § 2253(c)(3).

                        Standard of Review

  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 established in the Antiterrorism and Effective
  3
   That case is hereafter cited as Kelly—the name of the inmate who was
the real party in interest.
               ESPINOZA-MATTHEWS v. CALIFORNIA            16757
Death Penalty Act of 1996 (“AEDPA”) (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 undis-
puted, 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 (Spitsyn v. Moore,
345 F.3d 796, 799 (9th Cir. 2003)).

                    Timeliness of Petition

   [1] Section 2244(d) provides a one-year statute of limita-
tions for petitions filed by state prisoners seeking collateral
habeas relief in federal courts. For Espinoza-Matthews that
one-year clock began to tick on November 11, 2001, once his
state conviction became final (see Smith v. Duncan, 297 F.3d
809, 812-13 (9th Cir. 2002)). Under Section 2244(d)(2)
Espinoza-Matthews was entitled to toll the statute of limita-
tions while his California state habeas petition was pending:
from December 10, 2001 (when he filed his petition) to May
17, 2002 (when the California Supreme Court’s denial of his
petition became final) (see Bunney v. Mitchell, 262 F.3d 973,
974 (9th Cir. 2001) (per curiam)). On April 18, 2003, 336
days later, the statute of limitations would have expired but
for the possibility of equitable or statutory tolling.

   There is a dispute between the parties about when
Espinoza-Matthews filed his petition—in particular, whether
Espinoza-Matthews should get the benefit of the “prisoner’s
mailbox rule” (see Miles v. Prunty, 187 F.3d 1104, 1106 n.2
(9th Cir. 1999)) when he filed his petition in the wrong court
and the petition was later transferred to the right court. Even
if Espinoza-Matthews were to be given the benefit of the pris-
oner’s mailbox rule, at the earliest his petition would be
deemed to have been filed on May 12, 2003, 24 days late.
Without the benefit of the prisoner’s mailbox rule, Espinoza-
Matthews’s petition would be viewed as having been filed on
August 11, 2003, 115 days late. In either event, then,
16758             ESPINOZA-MATTHEWS v. CALIFORNIA
Espinoza-Matthews’s petition would be untimely without the
aid of equitable or statutory tolling.4

              Equitable Tolling of AEDPA’s Statute
                         of Limitations

   Despite the express and more limited language of the COA,
both the State and Espinoza-Matthews agreed at oral argu-
ment (having earlier briefed both issues) that the COA
included not only (1) whether Espinoza-Matthews was enti-
tled to equitable tolling because of his mental problems but
also (2) whether he was entitled to equitable tolling because
he was denied access to his legal materials while housed in
Ad/Seg. We address that second ground for equitable tolling,
for analysis shows that of itself it suffices for the relief that
Espinoza-Matthews seeks.

   [2] On that score, equitable tolling of AEDPA’s one-year
statute of limitations is available in this Circuit, but only when
“extraordinary circumstances beyond a prisoner’s control
  4
    In the following evaluation of Espinoza-Matthews’s claims for equita-
ble tolling, we have taken into consideration the supplemental evidence
that he submitted to the district court in his objection to the magistrate
judge’s SR&R. United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000)
held “that a district court has discretion, but is not required, to consider
evidence presented for the first time in a party’s objection to a magistrate
judge’s recommendation.” Howell, id. at 622 further explained “that in
making a decision on whether to consider newly offered evidence, the dis-
trict court must actually exercise its discretion, rather than summarily
accepting or denying the motion.” In this case it is impossible to tell, from
the district court’s cursory boilerplate statement that it “made a de novo
determination of those portions of the [magistrate judge’s] report to which
objection has been made,” whether the court exercised its discretion and
reviewed the new evidence or whether the court instead declined to exer-
cise its discretion and summarily accepted the magistrate judge’s SR&R
(see Brown v. Roe, 279 F.3d 742, 745 (9th Cir. 2002)). Because Espinoza-
Matthews was a pro se petitioner at all relevant times, we hold that the dis-
trict court should have exercised its discretion to review the supplemental
evidence that Espinoza-Matthews submitted (see id.). For that reason we
have reviewed that evidence on this appeal.
                   ESPINOZA-MATTHEWS v. CALIFORNIA                    16759
make it impossible to file a petition on time” (Spitsyn, 345
F.3d at 799 (internal quotation marks and citations omitted)).
That determination is “highly fact-dependent” (Whalem/Hunt
v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc per
curiam)), and Espinoza-Matthews “bears the burden of show-
ing that equitable tolling is appropriate” (Gaston v. Palmer,
417 F.3d 1030, 1034 (9th Cir. 2005)).5

   [3] As to Espinoza-Matthews’s second-stated ground for
such relief, we held in Lott, 304 F.3d at 924 that a habeas peti-
tioner’s deprivation of his legal materials for 82 days would
constitute an “extraordinary circumstance” sufficient to war-
rant equitable tolling. In Lott the petitioner was denied access
to his legal files during two temporary transfers and was
returned those materials only shortly before AEDPA’s statute
of limitations was to expire (id. at 921-22).

   Just as was true for the petitioner in Lott, Espinoza-
Matthews was denied access to his legal materials—indeed,
for much longer than 82 days. It was back in July 2002 that
Espinoza-Matthews became concerned that his property might
be lost and began inquiring about its whereabouts. In his
inquiry he also specifically requested that once his property
was found, he should be given access to his legal documents
so that he could prepare his federal habeas petition.
  5
   Although Gaston, id. also repeated the “impossible to file a petition on
time” language, a few months earlier the Supreme Court had framed the
equitable tolling standard in less absolute terms in Pace v. DiGuglielmo,
___ U.S. ___, 125 S.Ct. 1807, 1814 (2005):
      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.
We need not decide whether Pace has lowered the bar somewhat, because
Espinoza-Matthews meets the more demanding Spitsyn-Gaston articula-
tion in any event.
16760             ESPINOZA-MATTHEWS v. CALIFORNIA
   Although Espinoza-Matthews’s property was found shortly
after his July 2002 inquiry, he was not then given his legal
papers. As a result he continued to pursue his administrative
appeals. In August 2002 he asked prison staff to locate and
bring to him “legal mail that came from appellate court and
from Riv. Co. Sheriff dept. [sic].” In September 2002, after
his earlier requests had failed, he once more asked prison offi-
cials for his “legal mail - (1) appeal court; (1) Riverside
County Sheriff Office; (1) letter from attorney appeal attor-
ney” and other “legal miscellaneous material.” Still with no
luck, in December 2002 Espinoza-Matthews again requested
his “legal property.”

   In virtually every instance the prison officials’ responses
suggested that Espinoza-Matthews could not access his prop-
erty until after he was released from Ad/Seg.6 Thus his July
30, 2002 request for access to his “legal property” so that he
could “start working on [his] court appeal” was met with a
corrections officer’s response that:

     all of your property is currently being held in R&R
     Ad-Seg storage. It will be released to you when you
     are released from EOP-Ad-Seg.

And after the August 2002 property request, a corrections
officer similarly told Espinoza-Matthews:
   6
     In its brief the State attempts to make much of the fact that in Septem-
ber 2002 a corrections officer wrote to Espinoza-Matthews that he “was
permitted to receive some items of property through the mail.” But the
State fails to explain what seems inexplicable: how requesting property
“through the mail”—when the property was being held onsite and the
request would be directed to the same officers who were repeatedly telling
Espinoza-Matthews that he could not gain access to his property while in
Ad/Seg—would achieve a better response than Espinoza-Matthews had
received through his repeated written and oral requests for his property.
Additionally, the State tries to argue that Espinoza-Matthews was unsuc-
cessful in his requests to obtain his legal property because those requests
were not sufficiently specific. That contention too is wholly unpersuasive.
                 ESPINOZA-MATTHEWS v. CALIFORNIA                   16761
      I understand your request, but at this time I am not
      authorized to remove any property from your box.

In his motion for an extension of time to file his habeas peti-
tion, Espinoza-Matthews consequently explained that pursu-
ant to prison policy he could not gain access to his legal
property for the entire duration in which he was housed in Ad/
Seg because he “had no court order saying [that he] had a case
needing to be filed within 45 days.”

   [4] As we have recognized, it is “unrealistic to expect [a
habeas petitioner] to prepare and file a meaningful petition on
his own within the limitations period” without access to his
legal file (Spitsyn, 345 F.3d at 801). For nearly 11 months,
despite his diligence, Espinoza-Matthews could not obtain his
legal papers.7 After his release from Ad/Seg, Espinoza-
Matthews had only slightly over a month with his legal file
to try to prepare a proper petition.8 Under those circumstances
Espinoza-Matthews is entitled to equitable tolling.9

   [5] Because Espinoza-Matthews was denied access to his
legal materials for the duration in which he was housed in Ad/
Seg, we will toll the statute of limitations for that entire period
—from April 14, 2002 until March 5, 2003. Once such equita-
ble tolling is taken into account, Espinoza-Matthews’s federal
habeas petition was timely filed whether or not he gets the
  7
     Denial of access to Espinoza-Matthews’s legal property while he was
in Ad/Seg is particularly troublesome because, as he points out, he was
housed in Ad/Seg not as punishment but to protect him from further
assault.
   8
     As Lott, 304 F.3d at 924 explained, even where a petitioner “had
access to his legal files on the days before his AEDPA limitations period
expired,” as Espinoza-Matthews did here, “earlier events [may have] so
disabled him as to make a timely filing impossible (e.g., a temporary
transfer, such as [the petitioner’s], which lasted 360 days).”
   9
     As suggested earlier, this conclusion renders it unnecessary to reach
Espinoza-Matthews’s argument for the same relief based on his mental ill-
ness.
16762         ESPINOZA-MATTHEWS v. CALIFORNIA
benefit of the prisoner’s mailbox rule. And that also makes it
unnecessary to examine the alternative potential for statutory
tolling.

                         Conclusion

   For the reasons stated in this opinion, we REVERSE the
dismissal of Espinoza-Matthews’s federal habeas petition as
untimely and REMAND to the district court for further pro-
ceedings consistent with this opinion.
