                                                                         FILED
                    UNITED STATES COURT OF APPEALS                          SEP 18 2013

                                                                      MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                      U.S. COURT OF APPEALS




PETER J. MUNOZ, Jr.,                            No. 11-17904

              Petitioner - Appellant,           D.C. No. 3:11-cv-00197-LRH-
                                                RAM
  v.                                            District of Nevada,
                                                Reno
GREGORY SMITH, Warden and
NEVADA ATTORNEY GENERAL,
                                                ORDER
              Respondents - Appellees.


Before: KOZINSKI, Chief Judge, and O’SCANNLAIN and N.R. SMITH, Circuit
Judges.

       The memorandum disposition filed in this case on April 17, 2013 is

withdrawn and replaced by the memorandum disposition filed concurrently with

this Order.

       Appellant’s petition for rehearing and rehearing en banc filed on May 1,

2013 is DENIED as moot. Subsequent petitions for rehearing or rehearing en banc

respecting the new memorandum disposition may be filed in accordance with Fed.

R. App. P. 35.
                                                                           FILED
                            NOT FOR PUBLICATION                             SEP 18 2013

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



                            FOR THE NINTH CIRCUIT


PETER J. MUNOZ, Jr.,                             No. 11-17904

              Petitioner - Appellant,            D.C. No. 3:11-cv-00197-LRH-
                                                 RAM
  v.

GREGORY SMITH, Warden and                        MEMORANDUM*
NEVADA ATTORNEY GENERAL,

              Respondents - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                             Submitted April 15, 2013**
                              San Francisco, California

Before: KOZINSKI, Chief Judge, and O’SCANNLAIN and N.R. SMITH, Circuit
Judges.

       “The dismissal of a petition for writ of habeas corpus as time-barred is

reviewed de novo.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). While


        *
             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).
“findings of fact made by the district court are to be reviewed for clear error,”

when, as here, “the facts underlying [the] claim for equitable tolling are

undisputed, the question of whether the statute of limitations should be equitably

tolled is also reviewed de novo.” Id. Further, a “decision by the district court to

decline to order an evidentiary hearing is reviewed for abuse of discretion.” Roy v.

Lampert, 465 F.3d 964, 968 (9th Cir. 2006).

      A habeas petitioner is entitled to equitable tolling of AEDPA’s one-year

statute of limitations if he shows: “(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstances stood in his way and

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

(internal quotation marks omitted). “The diligence required for equitable tolling

purposes is reasonable diligence, not maximum feasible diligence.” Id. at 2565.

(internal citations omitted). Further, the circumstances must be “beyond a

prisoner’s control” and actually cause the untimely filing, i.e., “make it impossible

to file a petition on time.” Ford v. Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012).

      Additionally, “[a] habeas petitioner . . . should receive an evidentiary

hearing when he makes ‘a good-faith allegation that would, if true, entitle him to

equitable tolling.’” Roy, 465 F.3d at 969 (quoting Laws v. Lamarque, 351 F.3d




                                           2
919, 921 (9th Cir. 2003)). In determining whether a pro se petitioner’s allegations

warrant an evidentiary hearing, we liberally construe the allegations. Id. at 970.

      Munoz’s allegations, if true, support a finding that he was diligent in

pursuing his rights. According to his allegations, he repeatedly attempted to contact

his attorney to inquire about his case during the time that he was ignorant that his

state proceeding was over. See Porter v. Ollison, 620 F.3d 952, 961 (9th Cir.

2010). He also claims he made repeated attempts to obtain the materials he needed

to file his federal petition from the prison library. Accordingly, Munoz may have

been diligent in pursuing his federal petition after learning the state proceeding had

ended. It cannot be “conclusively established” that Munoz was not diligent. See id.

at 954.

      Next, Munoz claims that he faced at least one extraordinary circumstance

that could have caused his untimely filing: an unresponsive and misleading

attorney, an inability to access his case files, and limited access to the prison law

library. See e.g., Holland, 130 S. Ct. at 2563 (attorney misconduct amounting to

more than negligence); Ramirez v. Yates, 571 F.3d 993, 997–98 (9th Cir. 2009) (no

access to file); Roy, 465 F.3d at 973–75 (no access to the law library);

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

remand, the district court should determine whether these impediments constituted


                                           3
extraordinary circumstances and support the conclusion that Munoz’s untimely

filing was caused thereby. See Porter, 620 F.3d at 961–62.

      For these reasons, the district court’s decision not to hold an evidentiary

hearing, notwithstanding these allegations, constitutes an abuse of discretion.

      It is also worth noting that in dismissing Munoz’s petition, the district court

apparently relied on the long-standing rule that a petitioner has no constitutional

right to effective assistance of state post-conviction counsel. See Coleman v.

Thompson, 501 U.S. 722, 756-57 (1991). This was error under Holland, because, if

Munoz’s allegations about his repeated, ignored attempts to contact his attorney are

true, they demonstrate both diligence and an extraordinary circumstance—whether

or not there was a right to counsel is irrelevant. See Holland 130 S. Ct. at 2564-65.

Thus, the district court erred insomuch as Coleman informed its conclusion.

      Ultimately, determining the propriety of equitable tolling requires a “fact-

specific inquiry.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). While the

existing record suggests that Munoz was diligent and that extraordinary

circumstances caused his petition to be untimely, it “does not clearly answer that

question.” Id. at 802; see also Porter, 620 F.3d at 960 (“Construing Porter’s pro se

habeas petition liberally, and on the facts supported by the submission presently

before the court, however, it cannot be conclusively determined that Porter is not


                                          4
entitled to equitable tolling.”). Remand is appropriate, therefore, “because the

district court is in a better position to develop the facts and assess their legal

significance in the first instance.” Whalem/Hunt, 233 F.3d at 1148. On remand, the

district court should hold a hearing and determine whether: (1) Munoz diligently

pursued his federal petition despite his alleged setbacks, and (2) whether the

alleged extraordinary circumstances “caused the untimeliness of his filing and

made a timely filing impossible.” Ramirez v. Yates, 571 F.3d 993, 998 (9th Cir.

2009).

      REVERSED and REMANDED.




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