                                                                           FILED
                            NOT FOR PUBLICATION                             AUG 02 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



BILLY JO LYNN HEMENWAY,                          No. 09-35245

               Petitioner - Appellant,           D.C. No. 3:07-cv-05634-RBL

  v.
                                                 MEMORANDUM *
STATE OF WASHINGTON and JEFF
UTTECHT,

               Respondents - Appellees.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Ronald B. Leighton, District Judge, Presiding

                                                         **
                               Submitted July 21, 2010

Before:        B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.

       Washington state prisoner Billy Jo Lynn Hemenway appeals from the

district court’s judgment dismissing his 28 U.S.C. § 2254 petition as untimely. We

have jurisdiction under 28 U.S.C. § 2253(a), and we vacate and remand.


          *
             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).
      Hemenway contends that he was entitled to equitable tolling of the statute of

limitations due to his dyslexia and illiteracy and contends that he was improperly

denied an evidentiary hearing.

      Hemenway’s conviction of first degree rape became final on September 9,

2004. More than three years elapsed between that denial and the filing of his

federal petition, on November 15, 2007. During that time, working both on his

own and with assistance from fellow inmates, Hemenway filed two separate state

petitions for post-conviction relief. Excluding all of the time during which those

state petitions were pending, see 28 U.S.C. § 2244(d)(2), Hemenway’s federal

petition was filed almost six months beyond AEDPA’s one-year statute of

limitations. See 28 U.S.C. § 2244(d)(1).

      The Supreme Court has recently confirmed that equitable tolling of

AEDPA’s limitations period is available where a petitioner “shows (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, No. 09-5327,

2010 WL 2346549, *12 (June 14, 2010) (internal quotations omitted). A litigant

seeking equitable tolling of AEDPA’s statute of limitations bears the burden of

establishing his entitlement to such tolling. Mendoza, 449 F.3d 1065, 1068 (9th

Cir. 2006).


                                           2                                    09-35245
      We cannot meaningfully review whether the circumstances warrant

equitable tolling on the present record. In view of the serious deprivation of rights

at stake in denying a forum for a federal constitutional claim, further development

of the record is necessary to decide the applicability of the AEDPA statute of

limitations. Accordingly, we vacate and remand for an evidentiary hearing on

Hemenway’s equitable tolling claim.

      VACATED and REMANDED.




                                          3                                      09-35245
