                                    In the

       United States Court of Appeals
                     For the Seventh Circuit
No. 11-3303


ANTHONY WEDDINGTON,
                                                     Petitioner-Appellant,

                                      v.


DUSHAN ZATECKY, Superintendent,
                                                    Respondent-Appellee.


            Appeal from the United States District Court for the
             Southern District of Indiana, Indianapolis Division.
         No. 1:11-cv-00184-TWP-TAB — Tanya Walton Pratt, Judge.




      ARGUED FEBRUARY 12, 2013 — DECIDED AUGUST 1, 2013




   Before RIPPLE and TINDER, Circuit Judges, and ZAGEL,
District Judge.*


*
    The Honorable James B. Zagel, of the United States District Court for the
                                                               (continued...)
2                                                        No. 11-3303


    TINDER, Circuit Judge. Anthony Weddington was convicted
in Indiana state court in two separate trials of a total of four
counts of rape, two counts of criminal confinement, one count
of criminal deviate conduct, and one count of robbery. He was
sentenced to a total of 133 years’ imprisonment. He petitioned
for a writ of habeas corpus, claiming that he was denied
effective assistance of trial and appellate counsel in his second
trial. The district court concluded that the petition was barred
by the statute of limitations, that Weddington procedurally
defaulted his claims, and that he was not entitled to relief;
therefore, the court denied his petition. For the reasons that
follow, we vacate the dismissal of the petition and remand to
the district court for further proceedings.
    I. Background
    In 2002, the State of Indiana charged Weddington with four
counts of rape, four counts of criminal deviate conduct, and
two counts of criminal confinement. The charges were severed
into two separate trials. The Honorable Tanya Walton Pratt
(then a Marion Superior Court Judge) presided over
Weddington’s first trial in September 2003 (Cause No. 49G01-
0202-FB-029155). A jury found him guilty of rape, robbery, and
criminal confinement, and Judge Pratt sentenced him to 73
years’ imprisonment. Weddington appealed; the Indiana Court
of Appeals affirmed.




*
 (...continued)
Northern District of Illinois, sitting by designation.
No. 11-3303                                                      3

   The remaining charges against Weddington were tried in a
March 4, 2005 bench trial before Marion Superior Court Judge
Robert Altice (Cause No. 49G02-0202-FB-23310). Prior to late
February of that year, Weddington had been proceeding pro se
with stand-by counsel. At the end of that month, however,
Weddington sought appointment of counsel and, on March 2,
2005, stand-by counsel was appointed defense counsel. Defense
counsel called no witnesses at trial. Judge Altice found
Weddington guilty of three counts of rape, one count of
criminal deviate conduct, and one count of criminal confine-
ment, and sentenced him to 60 years’ imprisonment to run
consecutive to the sentence imposed in the 2003 case.
Weddington appealed his 2005 convictions and the Indiana
Court of Appeals affirmed. He sought transfer to the Indiana
Supreme Court, which was denied.
    In 2007, Weddington filed a state petition for post-convic-
tion relief raising claims challenging his 2005 convictions,
claiming, inter alia, ineffective assistance of trial and appellate
counsel. The state trial court held evidentiary hearings on the
petition and on May 12, 2009, the court denied post-conviction
relief. Weddington did not appeal.
    On February 4, 2011, Weddington filed a pro se habeas
petition under 28 U.S.C. § 2254, challenging his 2005 convic-
tions. The petition claims that the trial court erred in denying
a motion to suppress all evidence from a January 29, 2002
traffic stop. It also raises ineffective-assistance-of-counsel
claims directed at trial counsel and appellate counsel, including
one related to a fourth amendment claim. And Weddington
maintains that his wife would have testified at trial and given
him an alibi to the crimes charged, yet trial counsel failed to
4                                                    No. 11-3303

contact her or any other witness, even though counsel was told
that she wanted to testify. In his petition, Weddington asserts
that he was prevented from appealing the denial of his post-
conviction motion because the prison administration “confis-
cated all of his legal work, legal books, and pens and pencils
for over a year.” Petition 8. He asserts that the one-year
limitations period is no bar to his petition “because all of [his]
legal paper work, legal books, and even his legal mail was
confiscated by the officials at the prison…; for well over a year
these items were taken. Even [his] pens and pencils were
taken.” Id. at 14. Weddington declared under penalty of
perjury that the assertions in his petition are true and correct,
and he signed his petition February 2, 2011.
    In an attachment to his federal habeas petition, Weddington
further states that when he was sent to segregation, “all of his
personal property and belongings were taken from him and
placed inside of a plastic gray box by the institution officials.”
Id. at 17-18. He also claims that “[he] was not allowed to
retrieve any of his legal paperwork…for well over a year,” id.
at 18, and that even though he was released from disciplinary
segregation in June 2010, the property that had been put in the
gray box was not returned to him until August 2010. Further-
more, when the property was returned, “basically all” of his
legal books and paperwork, including his habeas petition, were
missing. Id. at 19. Weddington separately signed and dated the
attachment, but without a separate indication that the attach-
ment, too, was signed under penalty of perjury.
   Weddington’s federal habeas case was assigned to district
judge Tanya Walton Pratt (who had been appointed to the
United States District Court for the Southern District of Indiana
No. 11-3303                                                      5

as of June 2010). On September 19, 2011, Judge Pratt, as a
federal district judge, denied the petition as barred by the
statute of limitations and procedural default without address-
ing the merits of the claims. Weddington did not raise any
issue in the district court with respect to Judge Pratt’s partici-
pation in his federal habeas case.

    This court granted Weddington a certificate of appealability
upon finding a substantial showing of the denial of the right to
effective assistance of trial and appellate counsel. We directed
the parties to brief the timeliness of the petition and whether
Weddington procedurally defaulted on his federal habeas
claims. We also instructed them to address whether recusal of
the district judge was required.
   II. Discussion

    A federal court can grant a writ of habeas corpus if a
petitioner demonstrates that he is in custody in violation of
clearly established federal law. 28 U.S.C. § 2254(a). We review
a district court’s denial of a habeas petition de novo. Resendez
v. Smith, 692 F.3d 623, 626 (7th Cir. 2012). In this case, we first
consider whether a district court judge must recuse herself
from participating in a § 2254 petition where the judge, in her
former capacity as a state court judge, presided over the
defendant’s conviction for state criminal charges that were
closely related to the state criminal charges underlying the
federal habeas action. Then we consider the state’s arguments
that Weddington failed to clear procedural hurdles erected by
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA): the one-year statute of limitations and the
exhaustion-of-state-remedies requirement.
6                                                      No. 11-3303

    A. Recusal
     Our first task is to decide whether the district judge should
have recused herself. Federal law provides that “[a]ny…judge
…shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C. §
455(a). The purpose of the statute “is to preserve the appear-
ance of impartiality.” United States v. Johnson, 680 F.3d 966, 979
(7th Cir.), cert. denied, 133 S. Ct. 672 (2012). It is important to a
litigant and to the fairness and public reputation of judicial
proceedings that review of a case be conducted by “a judge
other than the judge who presided over the case at trial.”
Clemmons v. Wolfe, 377 F.3d 322, 325 (3d Cir. 2004). Indeed, 28
U.S.C. § 47 provides: “No judge shall hear or determine an
appeal from the decision of a case or issue tried by him.” This
statute is not strictly applicable here because it applies to
appeals, not federal habeas petitions. But the habeas petition is
similar to appellate review. In a federal habeas action, the
petitioner has “the opportunity to have a federal court review
the state proceedings for constitutional infirmities. In this
respect, there is no reason why the same rules governing
independence, conflict of interest, or appearance of partiality
should not apply.” Clemmons, 377 F.3d at 325-26; see also Russell
v. Lane, 890 F.2d 947, 948 (7th Cir. 1989) (noting that a federal
habeas proceeding “is addressed to a judge…who had no
emotional commitment to vindicating state justice as adminis-
tered in the petitioner’s case”).
   The state argues that a § 455(a) claim of bias is not pre-
served for appeal unless the complaining party seeks a writ of
mandamus. See, e.g., Johnson, 680 F.3d at 980 (“Because a party
No. 11-3303                                                      7

waives his § 455(a) recusal argument by failing to petition for
a writ of mandamus, it follows that he also waives it by failing
altogether to raise it at the district court level.” (quotation and
citation omitted)); United States v. Diekemper, 604 F.3d 345, 351
(7th Cir. 2010) (“[R]ecusal under § 455(a) must be sought
immediately through a writ of mandamus or it is waived.”).
Yet, at the same time and not as an alternative argument, the
state also asserts that we review Weddington’s claim that
Judge Pratt should have recused herself for plain error. Thus,
the state may have waived the waiver argument. But regard-
less of whether Weddington waived this claim for purposes of
the prior proceedings below, as we shall see, further proceed-
ings in the district court are necessary. We review his claim
with that in mind.
    Clemmons is a closely analogous case. There, the district
judge dismissed the habeas petition as untimely, and that same
judge had been the state court judge who had presided over
the petitioner’s criminal trial. 377 F.3d at 324. The Third Circuit
reviewed for plain error because the petitioner did not object
to the judge’s failure to recuse in the habeas action. The court
stated that “the error complained of in this case—a federal
judge sitting in review of the propriety of the state proceedings
conducted by that judge—seriously affects the fairness and
public reputation of the judicial proceedings.” Id. at 325. The
court found that the district judge’s failure to recuse “has
created an appearance of impropriety that runs the risk of
undermining the public’s confidence in the judicial process.”
Id. at 328 (quotation and citation omitted). Clemmons estab-
lished a broad rule requiring that each federal district judge
“recuse himself or herself from participating in a 28 U.S.C. §
8                                                     No. 11-3303

2254 habeas corpus petition of a defendant raising any issue
concerning the trial or conviction over which the judge
presided in his or her former capacity as a state court judge.”
Id. at 329. Similarly, in Russell, we concluded that the petitioner
“was entitled to have his habeas corpus petition heard by a
judge who had not participated in his conviction.” 890 F.2d at
948 (judge who dismissed habeas petition had been a member
of the state court of appeals panel that had affirmed peti-
tioner’s conviction on direct appeal).
    In arguing that Judge Pratt was not required to recuse
herself, the state relies on Daniels v. Wilson, No. 10-4562, 2012
WL 6176999 (3d Cir. Dec. 12, 2012) (unpublished). In that case,
the state court judge who had issued a warrant for Daniels’
arrest when he failed to appear for a preliminary hearing
ended up being the district judge who denied Daniels’ federal
habeas petition. In deciding that the judge was not required to
recuse himself based on his involvement in the state court
proceedings, the court considered Clemmons’s broad rule and
the Supreme Court’s instruction that when considering the
need for recusal under § 455(a), courts “cannot ignore the
factual realities” of the case under review. Id. at *3. The court
concluded that the district judge was not required to recuse
himself because he “did not preside over any trial or conviction
of Daniels” and only issued an arrest warrant when Daniels
failed to appear at a preliminary hearing. Id. Further, the court
reasoned that the warrant “did not concern the substantive
charges” but was nondiscretionary and ministerial, and the
habeas petition raised no issue regarding the warrant or any
conduct by that judge. Id. Thus, the district judge was not
“tasked with reviewing his past state court rulings in a federal
No. 11-3303                                                     9

habeas case.” Id. at *4 (quoting Clemmons, 377 F.3d at 328). The
court concluded that a reasonable person would not doubt the
judge’s impartiality in deciding the habeas petition, and recusal
was not required. Id.
    Although Clemmons is not directly on point, Weddington’s
case is closer to Clemmons than to Daniels. Judge Pratt did not
preside over the trial and conviction in the 2005 case, but she
did preside over the trial and conviction in the 2003 case. In
that capacity, she denied a motion to suppress regarding the
traffic stop that led to Weddington’s arrest and the investiga-
tion that led to both criminal cases. That same traffic stop was
also challenged in a motion to suppress in the 2005 case. Thus,
the same facts and circumstances, and perhaps legal argu-
ments, were involved in Judge Altice’s denial of the suppres-
sion motion in the 2005 case as in Judge Pratt’s denial of the
suppression motion in the 2003 case. Indeed, the state court of
appeals’ decision on appeal of the 2005 case refers to its
affirmance of Weddington’s conviction in the 2003 case, noting
that the latter “challenged the propriety of the same traffic stop
and subsequent detention.” Weddington v. State of Indiana,
Mem. Decision 9 n.9 (Ind. Ct. App. April 18, 2006) (Short App.
124 n.9).
    Furthermore, one of the ineffective-assistance claims raised
in the habeas petition involves trial and appellate counsels’
alleged failures with respect to a fourth amendment claim
concerning the traffic stop that underlies both cases. Thus, in
presiding over the habeas petition, Judge Pratt effectively
would be reviewing an issue and matter over which she had
already passed judgment as a state court judge. In addition, we
note that while still on the state trial court in 2005, after the
10                                                    No. 11-3303

2003 conviction was affirmed on appeal, see Weddington v.
State, No. 49A02-0311-CR-1004, 815 N.E.2d 1064 (Ind. Ct. App.
2004), Judge Pratt recused herself from further proceedings in
the 2003 case. Though the reason for the state court recusal is
not disclosed in the record, Weddington does not suggest that
there is a basis for recusal in this habeas case other than the fact
that Judge Pratt ruled on his fourth amendment claim while on
the state court. (As an aside, we also note that following Judge
Pratt’s state recusal, Weddington’s 2003 case was reassigned to
the Honorable Jane E. Magnus-Stinson, then a Marion Superior
Court Judge. Judge Magnus-Stinson became a federal district
judge in 2010 and, like Judge Pratt, now sits on the United
States District Court for the Southern District of Indiana.)
    Even though the federal habeas petition does not directly
involve the 2003 criminal trial and convictions before Judge
Pratt, the criminal charges tried in the 2003 case were closely
related to the charges in the 2005 case underlying the habeas
petition. The state suggests that Judge Pratt’s dismissal of the
petition on procedural grounds makes a difference. It is true
that one has to dig pretty deeply into a long petition (169
grounds) to find the few references to the suppression ruling
in the 2003 case. So, too, the timeliness and exhaustion con-
cerns are much more apparent from a quick look at the petition
and the relevant dates. It is certainly conceivable that Judge
Pratt’s dismissal of the petition was done without any aware-
ness that the claims being asserted raised any issue concerning
a trial over which she had presided in her capacity as a state
court judge. It is also true that Weddington did nothing to call
the potential recusal issue to Judge Pratt’s attention.
No. 11-3303                                                   11

    However, § 455(a) requires a judge to disqualify herself “in
any proceeding in which [her] impartiality might reasonably be
questioned” (emphasis added); this requirement is not limited
to particular issues within that proceeding. The statute aims to
avoid the appearance of impartiality, which does not necessarily
depend on the particular issues on which a decision turns.
Review of the habeas petition on the merits may require Judge
Pratt to review the 2005 proceedings with respect to a suppres-
sion motion aimed at the same stop and search as the one
involved in the suppression motion on which she ruled in the
2003 case. In our view, this could seriously affect the fairness
and public reputation of the judicial proceedings and create an
appearance of impropriety.
    As explained below, this case has to be remanded for
further proceedings. Thus, unlike our cases in which it was too
late to remedy an appearance of bias because the district judge
was done with the case, see, e.g., In re Bergeron, 636 F.3d 882,
883-84 (7th Cir. 2011) (concluding that a party was not entitled
to writ of mandamus ordering the judge’s removal where “it’s
too late for us to order the judge removed from the case,
because she’s through with it”); Diekemper, 604 F.3d at 352
(observing that “[o]nce the proceedings at issue are concluded,
a post hoc motion for recusal will do little to remedy any
appearance of bias that was present” and “any remedy to the
appearance of bias that may have existed has long since
evaporated”), the appearance of bias can be remedied here
before further proceedings are conducted in the district court.
A simple application of our Circuit Rule 36 will assure that this
case will be assigned to a different district judge on remand.
12                                                   No. 11-3303

     B. Procedural Hurdles
        1. Limitations Period
    The state argues, and the district court found, that
Weddington’s federal habeas petition is barred because it was
filed outside the limitations period. A petitioner must seek a
federal writ of habeas corpus within one year of the date on
which the state court judgment becomes final, though the
limitations period is tolled while a “properly filed” application
for post-conviction review is “pending” in state court. 28 U.S.C.
§ 2244(d)(1)(A), (d)(2); Villanueva v. Anglin, Nos. 12-1559 & 12-
2177, 2013 WL 2992119, at *3 (7th Cir. June 17, 2013). An
untimely petition “foreclose[s] habeas relief.” Id. at *5.
AEDPA’s limitations period, however, is subject to equitable
tolling, if the petitioner shows “‘(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circum-
stance stood in his way.’” Holland v. Florida, 130 S. Ct. 2549,
2563 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)).
    Weddington’s convictions were final September 7, 2006,
when the time to seek certiorari in the Supreme Court expired.
On February 12, 2007, 158 days later, he filed a pro se petition
for post-conviction relief in state court. (The district court and
respondent erred in finding that he filed his petition 127 days
later.) The limitations period was tolled while that petition was
pending. On May 12, 2009, the trial court denied his post-
conviction petition, and the federal habeas limitations period
ran on Monday, December 9, 2009. See Fed. R. Civ. P. 6(a).
Weddington’s petition was signed and deemed filed on
No. 11-3303                                                     13

February 2, 2011. Thus, his federal habeas petition was un-
timely.
     According to Weddington, the district court erred in
dismissing his petition because the limitations period should
have been equitably tolled by the state’s confiscation of his
legal papers. The state responds that the record fails to support
his contention. Its argument against equitable tolling, on
appeal as in the district court, is based solely on its challenge
as to whether Weddington was prohibited access to his legal
materials while he was housed in disciplinary segregation.
“The intentional confiscation of a prisoner’s habeas corpus
petition and related legal papers by a corrections officer is
‘extraordinary’ as a matter of law.” Valverde v. Stinson, 224 F.3d
129, 133 (2d Cir. 2000) (holding that a corrections officer’s
confiscation of a prisoner’s draft habeas petition and related
legal papers can justify equitable tolling of the one-year
limitations period); see also United States v. Gabaldon, 522 F.3d
1121, 1124–27 (10th Cir. 2008) (holding that prison’s complete
confiscation of petitioner's legal materials six weeks before
filing deadline and its holding of papers until after limitations
period expired constituted an extraordinary circumstance for
purposes of equitable tolling).
    The state maintains that Weddington offers only bald
assertions in his petition to support his claim, cites no evidence,
and disregards contrary evidence. However, in his habeas
petition, Weddington asserts that when he was placed in
disciplinary segregation the prison official confiscated all of his
legal paperwork (including his petition for habeas corpus),
legal books, pens and pencils and he was not allowed to
retrieve them for over one year. The petition is declared and
14                                                     No. 11-3303

stated under penalty of perjury and thus is considered an
affidavit. See Lafuente v. United States, 617 F.3d 944, 946 (7th Cir.
2010) (concluding that a § 2255 motion sworn under penalty of
perjury was considered an affidavit); Kafo v. United States, 467
F.3d 1063, 1068 (7th Cir. 2006) (the allegations in a motion
signed under penalty of perjury “become evidence”); Paters v.
United States, 159 F.3d 1043, 1052 (7th Cir. 1998) (“when a
petition contains language to the effect of…‘I declare (or
certify, verify, or state) under penalty of perjury that the
foregoing is true and correct,’ such petition, and the declara-
tion(s) submitted along with it, are tantamount to affidavits.”
(footnote omitted)).
    To be sure, the state has presented the affidavit of Tom
Richardson, Correctional Case Manager at Pendleton where
Weddington was housed, contradicting Weddington’s asser-
tions. Richardson states that Weddington was never prohibited
from accessing his legal materials or the facility’s legal refer-
ence materials while he was in disciplinary segregation. But the
competing evidence simply creates a factual dispute. As for the
facility’s operational procedures which provide for access to
legal materials by inmates in disciplinary segregation, the mere
existence of these procedures does not compel a finding that
they were followed in this case. Given Weddington’s state-
ments to the contrary, the procedures themselves cannot
establish that he was in fact provided his legal materials.
    The record presents factual issues that must be resolved
before a decision can be made regarding equitable tolling, and
it appears that an evidentiary hearing is necessary to resolve
the fact issues. The district court erred in failing to consider
No. 11-3303                                                       15

whether the limitations period was equitably tolled by the
state’s alleged confiscation of Weddington’s legal papers.


        2. Exhaustion
    The state argues that Weddington has procedurally
defaulted his habeas claims and that he cannot overcome his
default. A petitioner must raise his constitutional claims in
state court “to alert fairly the state court to the federal nature
of the claim and to permit that court to adjudicate squarely that
federal issue.” Villanueva, 2013 WL 2992119, at *5 (quotation
and citation omitted). The failure to present fairly each habeas
claim in state court “leads to a default of the claim[s]” and
“bar[s] the federal court from reviewing the claim[s’] merits.”
Smith v. McKee, 598 F.3d 374, 382 (7th Cir. 2010).
    The district judge determined that Weddington procedur-
ally defaulted his federal habeas claims by failing to appeal the
state trial court’s denial of post-conviction relief. The state trial
court issued its findings of fact and conclusions of law on May
12, 2009, when Weddington already was in disciplinary
segregation. Weddington did not appeal from the trial court’s
denial of his petition for post-conviction relief and therefore
defaulted the claims raised therein.
     However, a district court may excuse procedural default if
the petitioner “can demonstrate either (a) cause for the default
and prejudice (i.e., the errors worked to the petitioner’s ‘actual
and substantial disadvantage,’); or (b) that failure to consider
his claim would result in a fundamental miscarriage of justice
(i.e., a claim of actual innocence).” Conner v. McBride, 375 F.3d
643, 648 (7th Cir. 2004) (quoting United States v. Frady, 456 U.S.
16                                                   No. 11-3303

152, 170 (1982)) (emphasis added). Cause is defined as “an
objective factor, external to the defense, that impeded the
defendant’s efforts to raise the claim in an earlier proceeding.
Prejudice means an error which so infected the entire trial that
the resulting conviction violates due process.” McKee, 598 F.3d
at 382 (quotation and citation omitted). Procedural default is an
affirmative defense and can be waived. Eichwedel v. Chandler,
696 F.3d 660, 669 (7th Cir. 2012).
    If Weddington’s claims are believed, by the time the state
trial court entered judgment on his post-conviction petition, his
habeas petition and legal papers had been taken from him and
he had no access to them. This lack of access he alleges contin-
ued for more than one year—well beyond the 30 days allowed
for appeal. See Ind. R. App. P. 9(A)(1). And if Weddington’s
claims are credited, the confiscation of his legal materials can
establish cause for his procedural default. Cf. Valverde, 224 F.3d
at 134 (“[A] person is plainly ‘prevented’ from filing a pleading
for some period of time if he is deprived of the sole copy of
that pleading.”).
     In arguing that the procedural default could not be ex-
cused, the state asserts that Weddington has not shown cause
or a fundamental miscarriage of justice; the state has not
addressed prejudice. See Resp’t’s Br. 24 (“Weddington cannot
excuse his procedural default. Weddington does not show
cause for the procedural default or that the failure to consider
the claims will result in a fundamental miscarriage of justice.”);
id. at 28 (noting that defaulted habeas claims may be reviewed
if a petitioner establishes cause and prejudice and arguing that
“Weddington has not shown ca[u]se ”). However,
No. 11-3303                                                   17

Weddington’s procedural default may be excused if he shows
either “cause and prejudice” or a “fundamental miscarriage of
justice” if his claims are not considered. (On appeal he argues
that he can avail himself of both means of excusing his default.)
Likewise, the state failed to raise or develop any argument
about the prejudice part of the “cause and prejudice” standard
in the district court. Instead, it argued only that Weddington
had not shown cause: It attempted to refute his claims about
the confiscation of and access to his legal materials. It may be
that Weddington can show prejudice given his allegations of
counsel’s ineffectiveness in failing to investigate and call his
wife as an alibi witness.
    We are, of course, aware that in this court the state has
argued that Weddington’s claims of ineffective assistance of
counsel lack merit. And we are well aware that Strickland
claims have a prejudice component. See Strickland v. Washing-
ton, 466 U.S. 668, 694-95 (1984). But the state also has argued
that the “merits of Weddington’s claims are not properly
before the Court.” Resp’t’s Br. 29. And more importantly, the
state never argued in the district court that Weddington could
not show prejudice. Thus, this is not a case in which we could
affirm on the ground that prejudice has not been shown. Cf.
Thayer v. Chiczewski, 705 F.3d 237, 247 (7th Cir. 2012) (stating
that “we can affirm on any ground supported in the record, so
long as that ground was adequately addressed in the district
court and the nonmoving party had an opportunity to contest
the issue” (quotation and citation omitted)). As with equitable
tolling, further findings are necessary to determine whether
Weddington can overcome his procedural default. Therefore,
18                                               No. 11-3303

we must remand for further findings, including an evidentiary
hearing, if necessary.
     III.   Conclusion
    We accordingly VACATE the denial of Weddington’s habeas
petition and remand for further proceedings consistent with
this opinion. Circuit Rule 36 shall apply on remand.
