                                                                               FILED
                            NOT FOR PUBLICATION                                APR 21 2014

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



                            FOR THE NINTH CIRCUIT


CRUZ A. IBARRA,                                  No. 12-55925

               Petitioner - Appellant,           D.C. No. 5:11-cv-01452-GAF

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

               Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                             Submitted April 16, 2014**

Before:        GOULD, BERZON, and BEA, Circuit Judges.

       California state prisoner Cruz A. Ibarra appeals from the district court’s

judgment dismissing his 28 U.S.C. § 2254 habeas corpus petition as untimely. We

have jurisdiction under 28 U.S.C. § 2253. We reverse and remand for an

evidentiary hearing on whether Ibarra is entitled to equitable tolling.

          *
             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).
      We review de novo the district court’s dismissal of a habeas corpus petition

as time-barred. Espinoza-Matthews v. California, 432 F.3d 1021, 1025 (9th Cir.

2005). If the underlying facts are undisputed, we review de novo whether the

statute of limitations under the Antiterrorism and Effective Death Penalty Act

should be equitably tolled. Id.

      Ibarra is potentially entitled to equitable tolling on the basis of the delayed

certification of his in forma pauperis status and the law library’s extended closure,

because these could constitute extraordinary circumstances that prevented Ibarra

from filing a timely section 2254 habeas petition. See Holland v. Florida, 560 U.S.

631, 130 S. Ct. 2549, 2562 (2010). Ibarra has not had the opportunity to develop

the factual basis of this claim. Whether the aforementioned circumstances

constitute grounds for equitable tolling is a “highly fact-dependent” inquiry,

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

depends on whether the amount of time it took the prison to return his in forma

pauperis certification was extraordinary, whether it was extraordinary for the

prison to close for five days over the Labor Day holiday, and whether Ibarra would

have completed and filed his federal petition in a timely manner absent these

obstacles. If Ibarra shows that these were extraordinary circumstances, he will be

entitled to equitable tolling of at least thirteen days, rendering his federal habeas


                                           2                                     12-55925
petition timely. We therefore reverse the district court’s judgment dismissing

Ibarra’s petition and remand for factual development of Ibarra’s equitable tolling

claims. See Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006). On remand, the

district court should also allow the parties to introduce evidence as to whether

Ibarra diligently pursued his claims during the 352 days before he filed his state

court post-conviction petition, to shed light on Ibarra’s diligence in bringing his

case before the district court.

      REVERSED and REMANDED.




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