FILED
NOT FOR PUBLICATION AUG 02 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BILLY JO LYNN HEMENWAY, No. 09-35245
Petitioner - Appellant, D.C. No. 3:07-cv-05634-RBL
v.
MEMORANDUM *
STATE OF WASHINGTON and JEFF
UTTECHT,
Respondents - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
**
Submitted July 21, 2010
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
Washington state prisoner Billy Jo Lynn Hemenway appeals from the
district court’s judgment dismissing his 28 U.S.C. § 2254 petition as untimely. We
have jurisdiction under 28 U.S.C. § 2253(a), and we vacate and remand.
*
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).
Hemenway contends that he was entitled to equitable tolling of the statute of
limitations due to his dyslexia and illiteracy and contends that he was improperly
denied an evidentiary hearing.
Hemenway’s conviction of first degree rape became final on September 9,
2004. More than three years elapsed between that denial and the filing of his
federal petition, on November 15, 2007. During that time, working both on his
own and with assistance from fellow inmates, Hemenway filed two separate state
petitions for post-conviction relief. Excluding all of the time during which those
state petitions were pending, see 28 U.S.C. § 2244(d)(2), Hemenway’s federal
petition was filed almost six months beyond AEDPA’s one-year statute of
limitations. See 28 U.S.C. § 2244(d)(1).
The Supreme Court has recently confirmed that equitable tolling of
AEDPA’s limitations period is available where a petitioner “shows (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, No. 09-5327,
2010 WL 2346549, *12 (June 14, 2010) (internal quotations omitted). A litigant
seeking equitable tolling of AEDPA’s statute of limitations bears the burden of
establishing his entitlement to such tolling. Mendoza, 449 F.3d 1065, 1068 (9th
Cir. 2006).
2 09-35245
We cannot meaningfully review whether the circumstances warrant
equitable tolling on the present record. In view of the serious deprivation of rights
at stake in denying a forum for a federal constitutional claim, further development
of the record is necessary to decide the applicability of the AEDPA statute of
limitations. Accordingly, we vacate and remand for an evidentiary hearing on
Hemenway’s equitable tolling claim.
VACATED and REMANDED.
3 09-35245