                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 30 2012

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




                            FOR THE NINTH CIRCUIT



GABRIEL A. LEON,                                 No. 09-56111

               Petitioner - Appellant,           D.C. No. 8:09-cv-00323-R-AN

  v.
                                                 MEMORANDUM *
ANTHONY HEDGPETH,

               Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                       Argued and Submitted January 9, 2012
                               Pasadena, California


Before:        REINHARDT and W. FLETCHER, Circuit Judges, and BREYER,
               District Judge.**

       Gabriel Anthony Leon (“Leon”), a California state prisoner, appeals the

district court’s dismissal of his petition for habeas corpus under 28 U.S.C. § 2254.


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The Honorable Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.
The district court held that Leon’s petition was time-barred under the one-year

statute of limitations of the Antiterrorism and Effective Death Penalty Act

(“AEDPA”). 28 U.S.C. § 2244(d)(1). Leon argues that he is entitled to equitable

tolling for his damaged urethra, resulting reconstructive surgery, follow up

treatments, and morphine medication. We agree.

      We review de novo the district court’s dismissal of a habeas petition as time-

barred. Bryant v. Ariz. Atty. Gen., 499 F.3d 1056, 1059 (9th Cir. 2007). The

district court’s findings of fact are reviewed for clear error. Id. However, if the

underlying facts are undisputed, we review de novo whether the statute of

limitations under AEDPA should be equitably tolled. Id.

      The parties do not dispute the district court’s calculation of the relevant

dates. Leon filed his first state collateral petition 135 days after his convictions

became final. He received statutory tolling under § 2244(d)(2) for the period when

his state collateral petitions were pending. This left Leon 230 days — or, until

December 1, 2008 — to file his federal petition. Leon constructively filed the

petition on January 26, 2009 — 56 days past the deadline.

      A petitioner is entitled to equitable tolling of the AEDPA statute of

limitations under § 2244(d)(1) if he shows that (1) some extraordinary

circumstance prevented timely filing, and (2) he has been diligently pursuing his


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rights. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). Leon suffered from his

urological condition when he timely pursued his direct appeal and collateral relief

in state courts. However, evidence in the record indicates that his painful condition

deteriorated significantly during the relevant equitable tolling time period in 2008.

Leon required a week-long hospitalization in late October, shortly before his

AEDPA deadline was set to expire. Following the surgery, Leon took regular

doses of morphine and made repeated medical visits, culminating in another three-

day hospitalization in February 2009. Thus, unlike the petitioner in Gaston v.

Palmer, 417 F.3d 1030, 1035 (9th Cir. 2005), as amended by 447 F.3d 1165 (9th

Cir. 2006), Leon has shown that his physical condition worsened significantly

during the relevant period. Further, despite his deteriorating condition, and with

the assistance of another inmate, Leon prepared and filed his federal habeas

petition in January 2009 — less than two months after his AEDPA deadline had

expired (not giving credit for equitable tolling) and only two weeks before he

returned to the hospital for another procedure.

      We often remand for further factual development where a district court has

dismissed a habeas petition as untimely without holding an evidentiary hearing.

See, e.g., Porter v. Ollison, 620 F.3d 952, 962 (9th Cir. 2010). However, the state

conceded at oral argument that Leon’s medical records do not need supplementing.


                                          3
We therefore conclude that the available evidence and medical records establish

that Leon is entitled to equitable tolling of at least 56 days. As a result, his federal

habeas petition was timely.

       Accordingly, we REVERSE and REMAND with instructions for the district

court to afford Leon equitable tolling and proceed to the merits of his habeas

petition.




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