NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 05 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
GIOVANNI VALERIO, No. 11-16384
Petitioner - Appellant, D.C. No. 2:10-cv-01806-PMP-
GWF
v.
ANTHONY SCILLIA; ATTORNEY MEMORANDUM*
GENERAL OF THE STATE OF
NEVADA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted July 12, 2013
San Francisco, California
Before: PAEZ, BERZON, and TALLMAN, Circuit Judges.
Nevada state prisoner Giovanni Valerio appeals the district court’s
dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely under the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
under 28 U.S.C. § 2253 and 28 U.S.C. § 1291, and we vacate the district court’s
order dismissing the petition as time-barred and remand for an evidentiary hearing
to determine whether Valerio is entitled to equitable tolling of the one-year
limitations period.
A petitioner may be entitled to equitable tolling if he can demonstrate “(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,
130 S. Ct. 2549, 2562 (2010) (internal quotations marks and citation omitted).
“Under long established principles, [a] petitioner’s lack of diligence precludes
equity’s operation.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
On the basis of the existing record we are unable to determine whether, from
the date that Valerio learned that his trial counsel had not filed a direct appeal,
Valerio diligently pursued his rights by filing a prompt petition for post-conviction
relief. There is an unresolved factual dispute regarding when Valerio learned that
no direct appeal had been filed and, thereafter, what efforts were undertaken by
Valerio to appeal his conviction.
It cannot be said that there are “no circumstances consistent with petitioner's
petition and declaration under which he would be entitled . . . to equitable tolling.”
Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc). “Because
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determinations of . . . whether there are grounds for equitable tolling are highly
fact-dependent, and because the district court is in a better position to develop the
facts and assess their legal significance in the first instance, we believe the best
course is to remand to the district court for appropriate development of the record.”
Id.
Accordingly, we VACATE the district court’s order dismissing the petition
as untimely and REMAND for an evidentiary hearing or for other further factual
development as may be necessary to determine whether Valerio has exercised
diligence. If the court concludes that Valerio diligently pursued his rights then it
should consider whether Valerio has otherwise demonstrated that he is entitled to
equitable tolling of the one-year limitations period. We need not, and do not, reach
the merits of any other issue urged on appeal, including Valerio’s claim that his
conviction was not final until after the adjudication of his Lozada petition.
Valerio’s Motion to Take Judicial Notice of State Court Pleadings at Docket
No. 13 is GRANTED. The panel shall retain jurisdiction over any future appeal.
VACATED AND REMANDED.
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