                       United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-3544
                                    ___________

Christopher J. Earl,                    *
                                        *
            Petitioner - Appellant,     *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota
Joan Fabian, Commissioner, Minnesota *
Department of Corrections,              *
                                        *
            Respondent - Appellee.      *
                                   ___________

                              Submitted: October 14, 2008
                                 Filed: February 23, 2009 (corrected 2/24/09)
                                  ___________

Before LOKEN, Chief Judge, JOHN R. GIBSON, and MURPHY, Circuit Judges.
                              ___________

MURPHY, Circuit Judge.

       Christopher J. Earl filed this petition for a writ of habeas corpus under 28
U.S.C. § 2254 (1996), challenging his Minnesota conviction for aiding and abetting
first degree murder. The district court dismissed the petition as untimely under the
Antiterrorism and Effective Death Penalty Act (AEDPA) one year statute of
limitations but granted a certificate of appealability (COA). Earl appeals, arguing that
he is entitled to equitable tolling because the state failed to give him notice that his
judgment of conviction had become final and alternatively that his petition was timely
under 28 U.S.C. § 2244 (1996). We remand for an evidentiary hearing.
                                           I.

      Earl was convicted of 10 counts of aiding and abetting first degree murder in
2004 and was sentenced to three consecutive life terms without the possibility of
parole. For security reasons Earl was transferred by the Minnesota Department of
Corrections (DOC) to serve his sentence in an undisclosed correctional facility in
Florida.

       Following his conviction, Earl filed a direct appeal to the Minnesota Supreme
Court claiming that his confession should not have been admitted because the police
had continued to question him after he invoked his right to counsel. On August 11,
2005, the supreme court affirmed the state trial court's conviction after concluding that
Earl had knowingly and intelligently revoked the invocation of his right to counsel.
The court observed, however, that "the suggestion by police [after Earl had requested
counsel] that it was in [his] best interest to talk to them comes dangerously close to
impermissible interrogation and should have been avoided . . . ." State v. Earl, 702
N.W.2d 711, 720 (Minn. 2005).

       On the day the supreme court's affirming decision issued, Earl's counsel wrote
him to report the result and indicated his intention to file a petition for rehearing
(August 11, 2005 letter). Because the state would not disclose Earl's location, counsel
was forced to rely on the DOC's assurance that it would forward the letter to Earl.
Earl claims that he did not receive this August 11, 2005 letter notifying him that his
appeal had been decided until March of 2006 - a delay of approximately seven
months.1




      1
        The August 11, 2005 letter is date stamped as having been "RECEIVED" on
September 12, 2005 by the "Bureau of Classification & Central Records." The record
is silent as to the location of the bureau or as to what it did with the letter.

                                          -2-
      The supreme court denied Earl's petition for rehearing on September 1, 2005,
and counsel wrote to Earl on September 6, 2005, to notify him of the decision and
explain that Earl's conviction was now final. Once again counsel had to rely on the
DOC to forward the letter to Earl. Earl claims that he did not receive the September
6, 2005 letter with his case file until September of 2006.2

      In a letter dated March 6, 2006 Earl wrote his attorney the following:

      I received your letters stating that my appeal prosses [sic] is over, but
      you're asking for a Rehearing. Does this mean it's over or still pending?
      If it is indeed over, will you please forward me all you have on my case
      so I may proceed with any avenues I may have left. . . . I'm trying to
      learn about the law, but Florida is different then [sic] Minnesota; But I'm
      triing [sic].

Earl contends that this letter was in response to his delayed receipt of counsel's August
11, 2005 letter informing him that his conviction had been affirmed. Earl's use of the
plural "letters" is puzzling since counsel did not write to report that rehearing had been
denied until September 6, 2005 and that letter was allegedly not received by Earl until
September 2006. Since Earl's March 6 letter included his return address, counsel
thereafter no longer needed to depend on the state to transmit his correspondence.

       Counsel responded to Earl's March 6, 2006 letter one week later (March 13,
2006 letter). He summarized developments in the case for Earl, explaining that "[o]n
August 17, I filed a petition for rehearing . . . . Unfortunately, the Court denied the
petition on September 1. Judgment was officially entered on October 17, 2005. At
that point, your appeal process in state court ended." Counsel indicated that the
supreme court opinion, petition for rehearing, order denying rehearing, and official
judgment were included and that in addition he would gather "all of the information


      2
        Counsel's letter references an accompanying "Enclosure" but does not identify
its contents.

                                           -3-
I have about your case" but that it would "take a bit of time." Earl does not allege
untimely receipt of this letter which would have given him notice in approximately
March 2006 that his petition for rehearing had been denied on September 1, 2005.

      On August 25, 2006 Earl wrote another letter to counsel which included the
following:

      I'm writing because you told me that you were sending me all of my case
      work, but I haven't gotten it or heard from you. It's been a few months
      since we talked about that. Can you please send my case work to me.
      At least the motion of discovery A.S.A.P., and any advise [sic] or
      footnotes you think might help me. Also I have request for [sic]
      Minnesota law here and was denied. If you have any suggestions on
      obtaining such law material so I may study myself, please let me know.
      Anything is better than nothing.

There is no additional correspondence in the record between Earl and his state public
defender.

       On January 4, 2007 Earl filed this petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254, arguing that his constitutional rights had been violated when the
state introduced his videotaped confession at trial because it had been obtained after
he invoked his right to counsel. The state filed a motion to dismiss Earl's habeas
petition as untimely by 35 days under AEDPA's one year statute of limitations. Earl
argued in response that under the circumstances of his case the AEDPA limitations
period was enlarged by both equitable and statutory tolling. In support of this
position, Earl argued: (1) that the state deprived him of notice that his judgment of
conviction had become final by failing to deliver the August 11, 2005 letter for almost
seven months, (2) that the state deprived him of his case file by failing to deliver
counsel's September 6, 2005 letter until September of 2006, (3) that as a result of his
8:00 to 5:00 Monday through Friday prison employment, he had very limited access


                                         -4-
to the law library, and (4) that he had been denied access to Minnesota law during the
entire time he was incarcerated in Florida.

       After considering Earl's arguments the magistrate judge recommended that
Earl's petition be denied as untimely:

      The Court rejects Petitioner's argument that he is entitled to equitable
      tolling pursuant to 28 U.S.C. § 2244(d)(1)(B) or (D). Petitioner admitted
      that he had over two months after receiving his case materials [in
      September of 2006] to prepare and file a Petition in this Court before the
      statute of limitations expired. Such facts do not support a holding that
      equitable tolling is appropriate under either 28 U.S.C. § 2244(d)(1)(B)
      or (D).

The district court adopted the magistrate judge's report and recommendation without
substantive comment.

      Earl subsequently requested a COA in order to seek review of the district court
dismissal of his habeas petition as untimely. Earl contended that he was "eligible for
equitable tolling," and that in the alternative his habeas petition should have been
construed as timely filed under § 2244(d)(1)(B) and (D). The district court granted
the COA "to the extent Petitioner appeals the decision that his habeas corpus petition
was submitted untimely."

       The following dates have particular relevance to the parties' arguments on the
tolling issues:

      September 1, 2005 – Minnesota Supreme Court denies Earl's petition for
           rehearing;

      November 30, 2005 – Period to file petition for writ of certiorari with the
           United States Supreme Court expires and AEDPA one year
           limitation begins to run;

                                         -5-
      March, 2006 – Earl allegedly first receives notice that his conviction has
           become final; if true, AEDPA would begin to run if statutory
           tolling applies under § 2244(d)(1)(B);

      September, 2006 – Earl claims case file received;

      November 30, 2006 – AEDPA statute of limitations expires without
           tolling;

      January 4, 2007 – Earl files habeas petition (35 days late without
            tolling);

      March, 2007 – AEDPA statute of limitations expires if statutory tolling
           applies under § 2244(d)(1)(B).

                                           II.

                                           A.

      On appeal Earl argues that the district court erred by not applying the doctrine
of equitable tolling to the AEDPA statute of limitations. This court reviews the
decision to deny equitable tolling de novo. United States v. Hernandez, 436 F.3d 851,
858 (8th Cir.), cert. denied, 126 S. Ct. 2341 (2006). The burden of demonstrating
grounds warranting equitable tolling rests with the petitioner. Pace v. Diguglielmo,
544 U.S. 408, 418 (2005).

       Although AEDPA's one year statute of limitations applies to petitions for
federal habeas relief, 28 U.S.C. § 2244(d)(1), equitable tolling may be available to toll
the time limit under certain circumstances. Shoemate v. Norris, 390 F.3d 595, 597
(8th Cir. 2004). That is because AEDPA's one year limitations period is a true statute
of limitations rather than a jurisdictional bar. Id. Although the Supreme Court has
never expressly held that AEDPA permits equitable tolling, it has had reason to
assume it does without deciding the question:


                                          -6-
      We have not decided whether § 2244(d) allows for equitable tolling.
      Because the parties agree that equitable tolling is available, we assume
      without deciding that it is. To be entitled to equitable tolling, [Petitioner]
      must show (1) that he has been pursuing his rights diligently, and (2) that
      some extraordinary circumstance stood in his way and prevented timely
      filing.

Lawrence v. Florida, 127 S. Ct. 1079, 1085 (2007) (internal citation and quotation
marks omitted).

       In this circuit "equitable tolling is appropriate only under limited conditions, for
example, where extraordinary circumstances beyond a prisoner's control prevent the
timely filing of a petition" or where the "conduct of the defendant has lulled the
plaintiff into inaction." Gassler v. Bruton, 255 F.3d 492, 495 (8th Cir. 2001) (internal
quotation marks omitted). The use of equitable procedures "to relieve the strict
application of a statute of limitations must be guarded and infrequent, lest
circumstances of individualized hardship supplant the rules of clearly drafted
statutes." Flanders v. Graves, 299 F.3d 974, 976 (8th Cir. 2002) (quoting Jihad v.
Hvass, 267 F.3d 803, 806 (8th Cir. 2001)). We will decline to apply the doctrine of
equitable tolling if a habeas petitioner has not diligently pursued his rights. Finch v.
Miller, 491 F.3d 424, 427 (8th Cir. 2007).

       The state argues as a threshold matter that Earl has raised the issue of equitable
tolling for the first time on appeal, precluding our consideration of the issue. See, e.g.,
Tramp v. United States, 978 F.2d 1055, 1056 (8th Cir. 1992) (per curiam). In support
of this contention, the state suggests that both within his response to its motion to
dismiss and his objections to the magistrate judge's report and recommendation, Earl
referred to the doctrine of equitable tolling by name but actually relied on statutory
provisions in 28 U.S.C. § 2244(d)(1). The district court therefore erred in issuing a
COA that authorized the consideration of equitable tolling on appeal. We disagree.




                                           -7-
       First, Earl made an argument in support of equitable tolling at the district court.
In his response to the state's motion to dismiss his habeas petition, Earl expressly
argued that he was entitled to equitable tolling: "Petitioner states that the principles
of equitable tolling apply to his situation as enumerated under Title 28 U.S.C. §
2244(d), and that his Petition is not time barred due to these 'extraordinary
circumstances.'" Earl's emphasis of the "extraordinary circumstances" requirement,
one of two predicates to the application of equitable tolling, indicates that he
attempted to raise the concept below.

      Second, Earl cited case law relevant to equitable tolling and quoted extensively
from Gassler in his brief in support of his objections to the magistrate judge's report
and recommendation:

      The doctrine of equitable tolling may apply here, because the limitations
      period in § 2244(d)(1) is not a jurisdictional bar. . . . However, equitable
      tolling is appropriate only under limited conditions, for example where
      'extraordinary circumstances' beyond a prisoner's control prevent the
      timely filing of a petition. . . . Equitable tolling is also appropriate where
      the 'conduct of the defendant has lulled the plaintiff into inaction.'
      (omissions in the brief).

Pro se filings are to be construed liberally, Mellott v. Purkett, 63 F.3d 781, 784 n.4
(8th Cir. 1995), and we conclude that Earl introduced the issue of equitable tolling
below. This issue is therefore properly before us.

       This circuit has not yet considered whether a state created delay in providing
a prisoner notice that his judgment of conviction has become final is an extraordinary
circumstance beyond the petitioner's control which could equitably toll the AEDPA
statute of limitations. Several other circuits have discussed the issue and held that the
application of equitable tolling is warranted when there have been delays of similar




                                           -8-
length so long as the petitioner has pursued his rights with diligence.3 See Diaz v.
Kelly, 515 F.3d 149, 155 (2d Cir.), cert. denied, 129 S. Ct. 168 (2008); Jenkins v.
Johnson, 330 F.3d 1146, 1155 (9th Cir. 2003); Miller v. Collins, 305 F.3d 491, 495-96
(6th Cir. 2002); Knight v. Schofield; 292 F.3d 709, 711 (11th Cir. 2002) (per curiam);
Woodward v. Williams, 263 F.3d 1135, 1142-43 (10th Cir. 2001); Phillips v.
Donnelly, 216 F.3d 508, 510-11 (5th Cir. 2000) (per curiam). District courts have
also reached the same conclusion. See, e.g., United States ex rel. Willhite v. Walls,
241 F. Supp. 2d 882, 888 (N.D. Ill. 2003); Brandon v. United States, 89 F. Supp. 2d
731, 734 (E.D. Va. 2000).

       We agree that a significant state created delay in providing a prisoner with
notice that his state judgment of conviction has become final amounts to an
extraordinary circumstance beyond a prisoner's control which can equitably toll the
AEDPA statute of limitations if the petitioner has pursued his rights with diligence.
After Earl's conviction, but before his state appeal process concluded, he was
involuntarily transferred from Minnesota to an undisclosed correctional facility in
Florida. Thereafter, the state refused to inform Earl's attorney where he could be
reached and thus deprived counsel of the ability to contact him directly. Having
rendered Earl incommunicado, the state assumed the responsibility to transmit
information about his case and counsel's correspondence to him in a timely fashion.
Earl alleges the state failed to deliver timely notice, and whether the delay occurred
in Minnesota or in Florida is irrelevant. For equitable tolling to be warranted, the
extraordinary circumstance need only be one beyond petitioner's control.




      3
        In contrast, an ordinary de minimis delay incident to transmission of mail from
court to prisoner would not be an extraordinary circumstance warranting equitable
tolling. See, e.g., Diaz, 515 F.3d at 155 (AEDPA is not tolled during "brief interval
between the entry of a state court order and its receipt a few days later after prompt
mailing.").
                                          -9-
       Whether equitable tolling is appropriate on the facts of this case depends not
only on whether Earl's allegations of delayed notice are credible, but also on whether
he pursued his rights with the requisite diligence. The state argues that Earl should
be denied equitable tolling because he did not act with diligence in pursuing his rights.
Although Earl alleges that he did not receive notice that his judgment of conviction
had become final until March of 2006 – approximately seven months after the
decision was rendered – he still had until November 30, 2006 – a span of
approximately eight months – to file his habeas petition. Typically under such
circumstances Earl would not be entitled to equitable tolling. See Pace, 544 U.S. at
419 (petitioner who waited five months after judgment of conviction became final to
file habeas petition did not establish requisite diligence). But see Diaz, 515 F.3d at
155-56 (petitioner who filed habeas petition within one day of receiving delayed
notice acted with requisite diligence); Phillips, 216 F.3d at 511 (petitioner who filed
habeas petition within one month of allegedly receiving delayed notice pursued rights
with diligence).

       Earl suggests that in his case additional factors worked in concert with the late
notice entitling him to equitable tolling. He first argues that the state prejudiced his
opportunity to file a timely petition by allegedly delaying the delivery of his case file
for a full year, but it does not appear that Earl required his case file to prepare his
habeas petition. His petition lists a single claim for relief – that his federal
constitutional rights were violated when the prosecutor introduced Earl's allegedly
inadmissible confession at trial. Earl made this very argument before both the state
trial court and the supreme court. Second, Earl argues that the lack of access to
Minnesota legal materials in Florida, when considered in conjunction with the delayed
notice, constitutes an extraordinary circumstance making equitable tolling appropriate.
Earl claims that he required Minnesota legal materials to determine the date when
direct review concluded and the limitations period began to run. The applicable rules,
however, are United States Supreme Court Rules 13.1 and 13.3, which Earl does not
allege were unavailable to him. Moreover, lack of access to legal resources does not
typically merit equitable tolling. "Even in the case of an unrepresented prisoner
                                          -10-
alleging a lack of legal knowledge or legal resources, equitable tolling has not been
warranted." Kreutzer v. Bowersox, 231 F.3d 460, 463 (8th Cir. 2000).

       Finally, Earl argues that the limited access his prison employment afforded him
to the law library, when considered in conjunction with the delayed notice, was an
extraordinary circumstance making equitable tolling appropriate. He asserts that the
library was only available to him for a few hours on Saturdays due to the nature of his
prison job. Because there is "no freestanding constitutional right to a particular
number of hours in the prison law library," Entzi v. Redman, 485 F.3d 998, 1005 (8th
Cir. 2007), cert. denied, 128 S. Ct. 1714 (2008), Earl's alleged limited access to the
library does not impact our determination that he failed to act with the requisite
diligence. Since we conclude that Earl did not diligently pursue his rights he is not
entitled to equitable tolling of the AEDPA statute of limitations.

                                           B.

       Earl argues in the alternative that the district court erred by not statutorily
tolling the AEDPA limitations period under 28 U.S.C. § 2244(d)(1)(B) or (D).4 We
review de novo the district court's interpretation of the one year AEDPA limitations
period. Finch, 491 F.3d at 426.

      28 U.S.C. § 2244 provides in relevant part:

      (d)(1) A 1 year period of limitation shall apply to an application for a
      writ of habeas corpus by a person in custody pursuant to the judgment
      of a State court. The limitation period shall run from the latest of –

      4
        In his notice of appeal Earl contended that he was "eligible for equitable
tolling" and that his petition was "timely filed under § 2244(d)." In granting a
certificate of appealability the district court stated that it was granted "to the extent
Petitioner appeals the decision that his habeas corpus petition was timely filed." This
language is broad enough to authorize review of the statutory tolling issue. See, e.g.,
Jorss v. Gomez, 311 F.3d 1189, 1192-93 (9th Cir. 2002) (grant of COA on issue of
equitable tolling necessarily authorizes review of statutory tolling).
                                           -11-
             (A) the date on which the judgment became final by the
             conclusion of direct review or the expiration of the time for
             seeking such review;
             (B) the date on which the impediment to filing an application
             created by State action in violation of the Constitution or laws of
             the United States is removed, if the applicant was prevented from
             filing by such State action;
             ....
             (D) the date on which the factual predicate of the claim or claims
             presented could have been discovered through the exercise of due
             diligence.

The AEDPA statute thus provides that the commencement of the limitations period
for timely filing a habeas petition may sometimes extend beyond the date on which
the state judgment becomes final.

       The statutory language in § 2244(d)(1)(D), unlike that in § 2244(d)(1)(B),
contains a requirement that the petitioner have exercised "due diligence." Earl argues
that he could not have discovered the factual predicate of his habeas claim through the
exercise of due diligence until he received his case file. Since he allegedly received
that in September of 2006 and filed his petition on January 4, 2007, he argues it was
timely under § 2244(d)(1)(D). This argument is not persuasive. "[T]he factual
predicate of a petitioner's claims constitutes the vital facts underlying those claims."
McAleese v. Brennan, 483 F.3d 206, 214 (3rd Cir. 2007) (internal quotation marks
omitted).

       Earl alleges that his constitutional rights were violated when the state
introduced his confession at trial, and this allegation is the vital fact underlying his
claim. Because Earl's habeas petition lists this single claim for relief and he made the
very same argument before the state courts, he knew the factual predicate of his claim
even before the date on which he could file for habeas relief. While Earl certainly
wanted his case file earlier, "[s]ection 2244(d)(1)(D) does not convey a statutory right
to an extended delay . . . while a habeas petitioner gathers every possible scrap of
                                         -12-
evidence that might . . . support his claim." Flanagan v. Johnson, 154 F.3d 196, 199
(5th Cir. 1998). Earl is "confusing his knowledge of the factual predicate of his claim
with [the process of] gathering evidence in support of that claim." Id. As Judge
Easterbrook has explained, "[a] desire to see more information in the hope that
something will turn up differs from the factual predicate of a claim or claims for
purposes of 2244(d)(1)(D)." Johnson v. McBride, 381 F.3d 587, 589 (7th Cir. 2004)
(internal quotation marks omitted).

       Earl also argues that his petition was timely filed under 28 U.S.C. §
2244(d)(1)(B). To take advantage of that section of the statute, a petitioner must show
that the state created an impediment to the filing of his petition by action "in violation
of the Constitution or laws of the United States." If such a showing is made, the one
year AEDPA limitations period runs from the date such impediment is removed. Earl
claims he is entitled to tolling under this section because the state delayed his receipt
of notice that the judgment in his case was final. The plain language of the statute
makes clear that "whatever constitutes an impediment must prevent a prisoner from
filing his petition." Moore v. Battaglia, 476 F.3d 504, 506 (7th Cir. 2007) (quoting
Lloyd v. VanNatta, 296 F.3d 630, 633 (7th Cir. 2002) (per curiam)).

        The Eighth Circuit has not yet considered whether a state created delay in
providing a prisoner with notice that his judgment is final can amount to an
impediment in violation of the Constitution or laws of the United States such that
statutory tolling could be warranted for a petition subject to AEDPA. Without
defining the full contours of the term "impediment," we conclude that the delay
alleged by Earl, if credible, could possibly amount to a state impediment under §
2244(d)(1)(B). The federal habeas right does not accrue until the state appeal is
complete, see Carey v. Saffold, 536 U.S. 214, 220 (2002), and the lack of notice that
a state judgment of conviction has become final could be an impediment that prevents
a prisoner from filing a petition depending on the particular circumstances of the case.
Failure to notify a defendant of a state appellate court decision is a matter of state law
and procedure unless it denies the prisoner his constitutional right of access to the
                                          -13-
courts.5 This is a fact intensive issue of federal law as illustrated by the circuit cases
remanding, for detailed tolling consideration, claims that a prison law library did not
include the AEDPA statute of limitations. See, e.g., Moore, 476 F.3d at 506-07.
Whether an impediment "prevented" the filing of a habeas claim is also a distinct fact
intensive issue that has been the basis for denying 2244(d)(1)(B) relief. See Wood v.
Spencer, 487 F.3d 1, 7-8 (1st Cir.), cert. denied, 128 S. Ct. 260 (2007).

       Access to the courts is a constitutional right whose basis is unsettled. Scheeler
v. City of St. Cloud, 402 F.3d 826, 830 (8th Cir. 2005) (citing Christopher v. Harbury,
536 U.S. 403, 415 (2002)). In Scheeler we concluded that a right to access the courts
can be derived from the First Amendment. Id. To prevail under the First Amendment
a claimant typically bears the burden of proving that the defendants intentionally
restricted his access to the courts. Id. Here, there has been no suggestion that the state
intentionally restricted Earl's access to the courts. On the other hand, "due process
requires, at a minimum, that absent a countervailing state interest of overriding
significance, persons forced to settle their claims of right and duty through the judicial
process must be given a meaningful opportunity to be heard." Boddie v. Connecticut,
401 U.S. 371, 377 (1971). If Earl's allegation of late notice were believed, he may
have been effectively deprived of a meaningful opportunity to be heard on collateral
review for a period of almost seven months, hardly a de minimis deprivation given the
AEDPA one year limitations period.6

      The state suggests that § 2244(d)(1)(B) contains an unwritten diligence
requirement which dooms Earl's statutory tolling claim. When confronted with a
similar suggestion, the First Circuit expressly declined to find a "hidden diligence


      5
       Earl suggests that the delayed notice constituted a denial of access to counsel,
but there is no constitutional right to the assistance of counsel in post conviction
proceedings. Pennsylvania v. Finley, 481 U.S. 551, 555-58 (1987).
      6
       Cf. Vigliotto v. Terry, 873 F.2d 1201, 1202-03 (9th Cir. 1989) (explaining that
three day denial of access to courts does not amount to due process violation).
                                         -14-
requirement" in § 2244(d)(1)(B). See Wood, 487 F.3d at 8 ("Let us be perfectly clear.
We do not hold that section 2244(d)(1)(B) contains a hidden diligence requirement
. . . ."). In a case where a petitioner both "failed to explain why the documents held
by the state were necessary to pursue his federal claim" and did not act diligently even
after receiving them, the Tenth Circuit rejected a tolling claim under § 2244(d)(1)(B)
without stating why diligence was considered (perhaps because it was only an
alternate basis for decision). See Clark v. Oklahoma, 468 F.3d 711, 714 (10th Cir.
2006), cert. denied, 127 S. Ct. 3007 (2007). See also Roy v. Lampert, 465 F.3d 964,
972 n.3 (9th Cir. 2006) (§ 2244(d)(1)(B) statutory tolling claim considered "identical"
to one of equitable tolling), cert. denied, 127 S. Ct. 1880 (2007).

        We observe that Congress expressly included a diligence requirement in one
AEDPA tolling section – § 2244(d)(1)(D) – but omitted it from § 2244(d)(1)(B). "[I]t
is generally presumed that Congress acts intentionally and purposely when it includes
particular language in one section of a statute but omits it in another.'" BFP v.
Resolution Trust Corp., 511 U.S. 531, 537 (1994). The focus of each of these sections
is different. The focus of § 2244(d)(1)(B) is on the state's responsibility for creating
an impediment to timely filings while the focus of § 2244(d)(1)(D) is on the
petitioner's responsibility to identify the factual basis for his habeas claim in timely
fashion. Although § 2244(d)(1)(D) requires a habeas petitioner to exercise due
diligence in discovering the factual basis of his habeas claim, it does not require a
habeas petitioner to proceed with diligence once the factual predicate has been
identified. Instead, the petitioner has one year from that point to file his claim.

        To interpret § 2244(d)(1)(B) to mean that a petitioner who can establish that a
state created impediment has prevented him from filing must file in less than one year
after that impediment has been removed would deprive him of the one year generally
available under AEDPA. Such a conclusion would be inconsistent with the one year
available under § 2244(d)(1)(D), impose a greater burden on a § 2244(d)(1)(B)
petitioner even though that burden is not written in the statute, and seemingly defeat
the purpose of § 2244(d)(1)(B) which is to protect the habeas rights of a petitioner
                                         -15-
suffering from injurious state action. As a unanimous Supreme Court recently pointed
out in interpreting 28 U.S.C. § 2244(d)(1)(A), "when the statutory language is plain,
we must enforce it according to its terms." Jimenez v. Quarterman, No. 07-6984,
2009 WL 63833 (U.S. Jan. 13, 2009).

       Despite the notable difference in focus and wording between the two statutory
sections we need not decide at the present time whether § 2244(d)(1)(B) should be
interpreted to contain an unspecified diligence requirement since it has not been
established when Earl actually received notice that his judgment of conviction had
become final. Nor has it been established whether the delay was an impediment that
prevented Earl from filing a habeas petition. See Wood, 487 F.3d at 8 (no relief under
§ 2244(d)(1)(B) where state conduct did not prevent petitioner from filing). The
Supreme Court has noted that § 2244(d)(1)(B) "require[s] claim-by-claim
consideration." Pace, 544 U.S. at 416 n.6. Although Earl argues that the facts he
alleges are undisputed, neither the magistrate judge nor the district court made
relevant findings of fact. Nor did they specifically analyze Earl's claim under §
2244(d)(1)(B).

        Because there are mixed issues of fact and law which should be addressed in
the district court, Earl's petition must be remanded for further development. We leave
it to the district court to determine whether a courtroom hearing need be conducted or
whether the record can best be developed by use of the mails or telecommunication.
The district court should make findings on what mechanism the state of Minnesota
relied on to send notice to Earl, what actually happened to delay notice, and when Earl
actually received notice that his judgment had become final. Although no evidence
of intentional delay has been presented, it is worthy of note that an inmate has a liberty
interest protected by the due process clause in uncensored communication. United
States v. Bonner, No. 07-3676, 2009 WL 48223, at *2 (8th Cir. Jan. 9, 2009). The
ultimate issue for the district court to determine on remand is whether the state created
an impediment that prevented Earl from filing his habeas petition.

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                                         III.

       Accordingly, we vacate the judgment and remand to the district court for further
development of the record to determine whether state action created an impediment
in violation of the Constitution or laws of the United States which prevented Earl from
filing his petition. The district court should then certify its findings and conclusions
to the clerk of this court who shall refer them back to this panel.
                                  _________________




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