Ramos-Martinez v. United States

United States Court of Appeals
For the First Circuit

No. 09-1856

WILFREDO RAMOS-MARTÍNEZ,

Petitioner, Appellant,

v.

UNITED STATES OF AMERICA,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Boudin, Circuit Judge,
Souter,* Associate Justice,
and Selya, Circuit Judge.

Linda Backiel, by appointment of the court, for appellant.
Luke Cass, Assistant United States Attorney, with whom Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney (Chief, Appellate Division),
were on brief, for appellee.

March 7, 2011

*
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting by designation.
 SELYA, Circuit Judge. This case presents a question of

first impression in this circuit: Is the limitations period for

the filing of a federal prisoner's habeas petition under 28 U.S.C.

§ 2255(f) subject to equitable tolling? We answer this question

affirmatively, but — even though the petitioner raises a serious

question about whether he was unlawfully deprived of the services

of a qualified interpreter — we go no further; the record as it

stands is insufficient to allow us to resolve the merits of either

the equitable tolling claim or the substantive claims that underlie

the petition. Consequently, we vacate the order dismissing the

petition and remand for further proceedings.

I. BACKGROUND

We start by sketching the historical antecedents of this

appeal. On April 16, 2002, petitioner-appellant Wilfredo Ramos-

Martínez entered a straight guilty plea (i.e., a plea unencumbered

by any agreement) to a charge of conspiracy to distribute multi-

kilogram quantities of heroin, cocaine, and cocaine base (crack

cocaine). See 21 U.S.C. §§ 841(a)(1), 846. The change-of-plea

hearing took place before a visiting judge (Judge Carter). The

petitioner explained that he had very little formal education and

authorized his attorney to speak on his behalf. In response to a

direct request, he agreed that he would notify the court if he was

unable to understand any of its questions.

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 After the petitioner had been questioned at some length

about his understanding of the proffered plea and its consequences,

his counsel, David Román, informed the court that the petitioner

"does not speak [E]nglish and this indictment is in [E]nglish."

Román declared that he was fluent in Spanish and, therefore, had

"explained all of it" to his client in Spanish. Notwithstanding

this aposematic disclosure, the court did not inquire further into

the petitioner's English language proficiency.

The record contains no indication that, prior to or

during the hearing, the court asked the petitioner if he needed the

services of an interpreter.1 Neither the docket nor the transcript

contains any notation showing that a court interpreter participated

in the hearing.2 Tellingly, the court's criminal minute sheet for

the hearing does not identify any interpreter in the space provided

for that information.

Some months passed before sentencing. By then, Judge

Carter had returned home, and Judge Laffitte presided.

The disposition hearing took place on November 4, 2002.

At that time, the petitioner requested "all the documents in the

1
In contrast, in a change-of-plea hearing held on that same
afternoon for one of the petitioner's codefendants, Maximo Salamo-
Olmeda, Judge Carter inquired pointedly about the defendant's
ability to communicate with the court without the help of an
interpreter.
2
In contrast, the record of the petitioner's sentencing
indicates that he was "provided with the assistance of the Official
Court Interpreter" for that proceeding.

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case." He claimed that he repeatedly had asked Román to procure

these papers, but to no avail. He also signaled his intention to

file a section 2255 petition premised on Román's ineffective

assistance. The district court summarily rejected the petitioner's

entreaty and stated that it did not "find a scintilla, an iota of

evidence to conclude that Mr. Román was ineffective." The court

proceeded to sentence the petitioner to 480 months in prison.

The petitioner filed a pro se notice of appeal and

requested the appointment of counsel. Attorney José Franco-Rivera

ultimately appeared as the petitioner's appellate counsel.

In July of 2005, the petitioner wrote to the district

court requesting information about the status of his appeal. The

court provided the petitioner's attorney with a copy of this

letter. The record does not indicate what action (if any) counsel

may have taken.

A pro se motion to like effect was received by the

district court in August of 2005. The clerk was directed to notify

the petitioner of the status of his appeal. Within a matter of

weeks, we affirmed the conviction and sentence. United States v.

Ramos-Martínez, No. 02-2630 (Oct. 12, 2005) (unpublished order).

The conviction became final on January 10, 2006 (when the 90-day

period for seeking certiorari expired).

Within a month thereafter, the petitioner wrote to the

clerk of the district court about the cost of acquiring a

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transcript of his change-of-plea hearing. The court directed the

clerk to provide the petitioner with the requested information. It

is unclear whether that directive was implemented.

On March 27, 2007, the petitioner, acting pro se, filed

a motion to reduce his sentence. See 18 U.S.C. § 3582(c)(2). Due

to Judge Laffitte's retirement, the case was reassigned to Chief

Judge Fusté, who denied the sentence reduction motion. The

petitioner appealed pro se, and we affirmed the challenged order.

United States v. Ramos-Martínez, No. 07-1973 (Jan. 28, 2008)

(unpublished order).

Meanwhile, a series of other events were unfolding.

Although the record is scumbled, it appears that, at some point in

2005, the petitioner's mother paid a paralegal named José Rosado

(ostensibly an associate of the petitioner's appellate counsel)

several thousand dollars to assist in the preparation of a section

2255 petition. The precise nature of the agreement with Rosado is

not chronicled in the record, nor is it clear what (if anything)

Rosado did during 2005 and 2006. Prison records indicate that the

petitioner placed a plethora of telephone calls to Rosado during

October of 2006. These efforts were thwarted as of October 13,

2006, when the petitioner's calls to that number were blocked by

someone on the receiving end. The record contains no explanation

of why the calls were blocked. No section 2255 petition prepared

by Rosado was filed on the petitioner's behalf.

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 On April 1, 2008, the petitioner, acting pro se, filed a

motion to vacate, set aside, or correct his sentence, pursuant to

28 U.S.C. § 2255. This petition alleged that his guilty plea had

been obtained in violation of the Due Process Clause because his

change-of-plea hearing was conducted without the assistance of an

interpreter and that, as a result, his plea was involuntary,

unintelligent, and unknowing. The petition further alleged that

both the petitioner's trial and appellate attorneys had provided

ineffective assistance through their respective failures to request

an interpreter and to identify the absence of an interpreter as an

issue on appeal. The petitioner filed companion motions seeking

(i) equitable tolling of the limitations period limned in the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28

U.S.C. § 2255(f); (ii) leave to expand the record pursuant to Rule

7 of the Rules Governing Section 2255 Proceedings; (iii) an

evidentiary hearing pursuant to Rule 8; and (iv) permission to

institute the discovery processes generally available through Rule

6.

On April 16, 2008, the district court granted the motion

to expand the record. The expanded record contains evidence

regarding the events that transpired at the change-of-plea hearing,

documents establishing lockdown periods affecting facilities in

which the petitioner was incarcerated, information about his

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relationship with Rosado, and materials evidencing his limited

education and low proficiency in the English language.

After denying the petitioner's motions for discovery and

for an evidentiary hearing, the district court rejected the section

2255 petition. Ramos-Martínez v. United States, No. 08-1388, 2009

WL 1299563, at *4 (D.P.R. May 6, 2009). The court based its ruling

in material part on its appraisal of the protagonists who

participated in the change-of-plea hearing:

[A]s seasoned a judge as he is, Judge Carter
would not have proceeded to take a plea from a
defendant that could not communicate in
English. Similarly, David Román, Defendant's
lawyer, would not have allowed a non-English-
speaking defendant to stand before Judge
Carter without understanding the language of
the colloquy. We, therefore, find that
Petitioner was either able to speak English or
was assisted by an interpreter during the plea
colloquy.

Id. at *3. In the court's view, the transcript of the hearing

showed that the petitioner "answer[ed] several questions with full

sentences and never indicated that he could not understand the

proceedings." Id. The court concluded that "[a]lthough the court

would have done well to conduct a more thorough inquiry into

Petitioner's comprehension of English, the record does not

demonstrate that Petitioner had difficulty with English so as to

trigger the requirements of the Court Interpreters Act." Id. In

the process of reaching this conclusion, the court creatively

interpreted Román's statement that the petitioner did not speak

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English to mean that he "could not read and understand the

indictment, not that he could not comprehend the court

proceedings." Id. Having denied the petition on the merits, the

court effectively sidestepped the equitable tolling issue.

On May 26, 2009, the petitioner, again acting pro se,

filed a notice of appeal and a motion for a certificate of

appealability (COA). The district court declined to issue a COA.

The petitioner appealed that denial and, on December 10, 2009, we

granted a COA as to three issues: (i) whether, under principles of

equitable tolling, the section 2255 petition should be considered

timely; (ii) whether, assuming timeliness, the district court erred

in rejecting the petitioner's claim that his due process rights

were violated when the district court failed to furnish an

interpreter during his change-of-plea hearing; and (iii) whether,

assuming timeliness, the district court erred in rejecting the

petitioner's claim that his trial counsel's failure to request an

interpreter at the change-of-plea hearing amounted to ineffective

assistance. The COA delimits the frame of reference for this

appeal.

II. ANALYSIS

We divide our discussion into four segments. We begin

with the availability of equitable tolling.

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 A. Availability of Equitable Tolling.

"Congress enacted 28 U.S.C. § 2255 as a substitute for

the traditional habeas remedy with respect to federal prisoners."

Trenkler v. United States, 536 F.3d 85, 96 (1st Cir. 2008). The

AEDPA establishes a one-year limitations period for habeas

petitions filed by prisoners in federal custody. 28 U.S.C.

§ 2255(f). In general, this period runs from "the date on which

the judgment of conviction becomes final." Id. § 2255(f)(1).

Where, as here, Supreme Court review is not sought, "a judgment of

conviction becomes final when the time expires for filing a

petition for certiorari contesting the appellate court's

affirmation of the conviction." Clay v. United States, 537 U.S.

522, 525 (2003). In a federal criminal case, a petition for a writ

of certiorari must be filed within 90 days of entry of the judgment

by a court of appeals. Sup. Ct. R. 13.1.

By this algorithm, the petitioner's conviction became

final on January 10, 2006. The one-year limitations period for

filing a section 2255 petition would, in the absence of tolling,

have expired one year later on January 10, 2007. No petition was

filed until April 1, 2008. Absent equitable tolling, then, the

petition was untimely.

Equitable tolling is a doctrine that "provides that in

exceptional circumstances, a statute of limitations 'may be

extended for equitable reasons not acknowledged in the statute

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creating the limitations period.'" Neverson v. Farquharson, 366

F.3d 32, 40 (1st Cir. 2004) (quoting David v. Hall, 318 F.3d 343,

345-46 (1st Cir. 2003)). The AEDPA does not make any explicit

reference to equitable tolling. Neither the Supreme Court nor this

court has conclusively resolved whether section 2255's limitations

period may be equitably tolled. We answer that question today.

Despite the lack of controlling precedent, we do not

write on a pristine page. The Supreme Court recently held that the

limitations period under a kindred AEDPA provision (28 U.S.C.

§ 2244(d)), which applies to federal habeas petitions filed by

prisoners in state custody, is subject to equitable tolling in

appropriate instances. Holland v. Florida, 130 S. Ct. 2549, 2560

(2010). In reaching this conclusion, the Court considered whether

the relevant statute of limitations is jurisdictional in nature,

whether it contains sufficiently emphatic indications to overcome

the presumption that equitable tolling applies, and whether the

availability of equitable tolling would undermine the statute's

fundamental purposes. Id. at 2560-62. In determining whether

section 2255's built-in limitations period is subject to equitable

tolling, we deem it appropriate to factor these same three integers

into the decisional calculus.

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 To begin, section 2255(f)'s limitations period is couched

in language virtually identical to that of section 2244(d).3

Neither provision sets forth "'an inflexible rule requiring

dismissal whenever' its 'clock has run.'" Id. at 2560 (quoting Day

v. McDonough, 547 U.S. 198, 208 (2006)). We conclude, therefore,

that section 2255(f) is non-jurisdictional. See id.; Day, 547 U.S.

at 205; cf. Henderson v. Shinseki, 562 U.S. ___, slip op. at 8-9

(2011) (explaining that terms of statutory provision establishing

deadline for seeking Veterans Court review contain "no clear

indication that Congress wanted that provision to be treated as

having jurisdictional attributes").

When found in federal statutes, non-jurisdictional

limitations periods ordinarily are subject to a rebuttable

presumption that equitable tolling is available. Holland, 130 S.

Ct. at 2560. The Holland Court explained that this presumption is

strengthened "by the fact that 'equitable principles' have

traditionally 'governed' the substantive law of habeas corpus."

Id. (quoting Munaf v. Geren, 553 U.S. 674, 693 (2008)). This

rationale applies with undiminished force to section 2255

petitions.

3
In relevant part, section 2244(d)(1) prescribes that 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"; section 2255(f) indicates that a "1-year period of
limitation shall apply to a motion under this section."

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 The Holland Court also acknowledged that because Congress

enacted the AEDPA subsequent to the Court's announcement of the

presumption in favor of equitable tolling, Congress likely was

aware that courts, when interpreting the AEDPA, would do so with

that presumption in mind. Id. at 2561. This reasoning counsels in

favor of the availability of equitable tolling under section

2255(f).

The similarities do not end there. Like section 2244(d),

the prescriptive period provided in section 2255(f) contains no

"unusually emphatic" language or reiterations that might tend to

rebut the presumption in favor of equitable tolling. See id.

(contrasting section 2244(d) with statutes at issue in United

States v. Beggerly, 524 U.S. 38 (1998), and United States v.

Brockamp, 519 U.S. 347 (1997)). Moreover, a one-year limitations

period is not especially long, and habeas corpus is a subject area

in which equitable principles may comfortably flourish. See id.

These considerations, which apply to both section 2244 and section

2255, strongly suggest the availability of equitable tolling. See

id.

Last — but surely not least — Holland informs our

examination of the AEDPA's basic objectives. There, the Court

concluded that allowing equitable tolling in appropriate

circumstances would not undercut the AEDPA's core principles. Id.

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at 2562. This conclusion is not altered when the focus shifts from

section 2244 to section 2255.

To say more on this issue would be supererogatory. Given

the compelling textual similarity and congruent purpose that

section 2244(d) and section 2255(f) share and the common heritage

of both provisions as part of the same statutory framework, we hold

that section 2255(f)'s one-year limitations period is subject to

equitable tolling in appropriate instances. This holding comports

with the reasoning of the Holland Court. It also brings this court

into line with ten other courts of appeals that have reached the

same conclusion. See United States v. Aguirre-Ganceda, 592 F.3d

1043, 1045 (9th Cir. 2010); Byers v. United States, 561 F.3d 832,

836 (8th Cir. 2009); United States v. Petty, 530 F.3d 361, 364 (5th

Cir. 2008) (per curiam); United States v. Gabaldon, 522 F.3d 1121,

1124 (10th Cir. 2008); Solomon v. United States, 467 F.3d 928, 935

(6th Cir. 2006); United States v. Sosa, 364 F.3d 507, 512 (4th Cir.

2004); Baldayaque v. United States, 338 F.3d 145, 150 (2d Cir.

2003); United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir.

2000); Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.

1999) (per curiam); Miller v. N.J. State Dept. of Corr., 145 F.3d

616, 619 n.1 (3d Cir. 1998).

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 B. Applying Equitable Tolling.

That equitable tolling is available under section 2255(f)

does not mean that it applies here. We begin this latter inquiry

with general principles.

A court's power to invoke equitable tolling must be

exercised case by case. See Holland, 130 S. Ct. at 2563; Baggett

v. Bullitt, 377 U.S. 360, 375 (1964). "To preserve the usefulness

of statutes of limitations as rules of law, equitable tolling

should be invoked only 'sparingly.'" Farquharson, 366 F.3d at 42

(quoting Irwin v. Dep't of Vet. Affairs, 498 U.S. 89, 96 (1990)).

In order to assuage this concern, we have recognized that equitable

tolling is available only in cases in which "circumstances beyond

the litigant's control have prevented [her] from promptly filing."

Cordle v. Guarino, 428 F.3d 46, 48 (1st Cir. 2005) (alteration in

original) (quoting Lattimore v. Dubois, 311 F.3d 46, 55 (1st Cir.

2002)). These background principles inform our inquiry.

"A habeas petitioner bears the burden of establishing the

basis for equitable tolling." Riva v. Ficco, 615 F.3d 35, 39 (1st

Cir. 2010) (citing Holland, 130 S. Ct. at 2562). To carry this

burden, the 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." Holland, 130 S.

Ct. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005)); see Trapp v. Spencer, 479 F.3d 53, 61 (1st Cir. 2007)

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(listing additional factors that may influence whether or not to

grant equitable tolling).

Because equitable decisions are made on a case-by-case

basis, the determination of whether to toll a limitations period

for equitable reasons is fact-intensive. See Holland, 130 S. Ct.

at 2565. In the case at hand, the record is sparse concerning a

number of salient facts relevant to equitable tolling. Given these

gaps, we think it unwise to attempt to resolve the petitioner's

equitable tolling claim here and now. To illustrate why we have

reached this conclusion, we highlight some areas in which further

development of the facts would prove useful.

Equitable tolling normally requires a finding of

extraordinary circumstances. See, e.g., Riva, 615 F.3d at 39. In

this case the extraordinary circumstances limned by the petitioner

involve, among other things, the alleged failure of Rosado (a

paralegal purportedly associated with the petitioner's appellate

counsel and paid by the petitioner's family to prepare a section

2255 petition) to do what he had agreed to do. "[S]ometimes,

professional misconduct [may] . . . amount to egregious behavior

and create an extraordinary circumstance that warrants equitable

tolling." Holland 130 S. Ct. at 2563; accord United States v.

Martin, 408 F.3d 1089, 1093 (8th Cir. 2005); Baldayaque, 338 F.3d

at 152; United States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002).

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 Here, however, the matter is not clear-cut. Cases in

which professional failings have been judged sufficiently egregious

to warrant a finding of extraordinary circumstances typically have

involved misconduct by attorneys. See, e.g., Martin, 408 F.3d at

1093-96; Spitsyn v. Moore, 345 F.3d 796, 801 (9th Cir. 2003).

Rosado is only a paralegal — but a paralegal who may have been

working with (or for) an attorney. On the record before us, the

relationship between Rosado and the lawyer is opaque. Better

information on this point might well be significant in the

equitable tolling calculus.

To compound the problem, the record does not speak with

any degree of clarity to the specifics of Rosado's engagement by

the petitioner. While the record indicates that the petitioner's

relatives paid Rosado a substantial sum of money to prepare a

section 2255 petition, it lacks any detail about the parameters of

the relationship. The record does confirm that Rosado failed to

respond to a myriad of telephone calls that the petitioner placed

to him and that no Rosado-prepared petition was ever filed on the

petitioner's behalf. The gaps, however, leave unanswered serious

questions about the reasonableness vel non of the petitioner's

reliance on Rosado and the likelihood that he was misled.

Equitable tolling is not intended as a device to rescue

those who inexcusably sleep upon their rights. A habeas petitioner

who seeks the balm of equitable tolling must show that he has

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exercised "reasonable diligence" to protect his own interests.

Holland, 130 S. Ct. at 2565 (citing Lonchar v. Thomas, 517 U.S.

314, 326 (1996)). Be that as it may, this requirement does not

demand a showing that the petitioner left no stone unturned.

Baldayaque, 338 F.3d at 153.

On this question, too, paucity of information is a matter

of concern. Applying such a standard necessitates that an

inquiring court have a sufficient factual basis to understand what

choices the petitioner had and how he made those choices. See id.

The record here is too underdeveloped to allow this sort

of reasoned analysis. We can tell that the petitioner made some

efforts both to file a petition and to keep tabs as to what

progress was being made. For example, he tried to obtain a

transcript of his change-of-plea hearing, placed repeated telephone

calls to Rosado, and submitted numerous pro se filings. But these

efforts represent only part of the picture, and the record is

silent as to when and by what means the petitioner became aware

that Rosado was not performing his assigned task. What the

petitioner knew and when he knew it are important in assessing his

diligence. See, e.g., Barreto-Barreto v. United States, 551 F.3d

95, 101 (1st Cir. 2008). On this threadbare record, we simply

cannot answer these questions.

In addition, both "extraordinary circumstances" and

"reasonable diligence" depend on the totality of the circumstances.

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See Trapp, 479 F.3d at 61. In attempting to assemble the

components of that totality, the petitioner points to

considerations such as his limited education and lack of

familiarity with the English language, the frustration of his

efforts to learn English while incarcerated so that he could

prepare his own petition, prison transfers and isolation due to

lockdowns during the period between November of 2007 and February

of 2008, and the like. Although any one of these factors, standing

alone, may be insufficient to excuse a failure to file a timely

habeas petition, see, e.g., Akins v. United States, 204 F.3d 1086,

1089-90 (11th Cir. 2000) (declining to apply equitable tolling

where petitioner was subject to lockdown but record indicated he

had the opportunity to file his motion when lockdown was not in

place), the whole may be greater than the sum of the parts. The

record is exiguous as to most of these points and, therefore,

fuller development of them is desirable.

C. The Substantive Claims.

The district court did not dwell on the dearth of

information about equitable tolling but, rather, elected to

sidestep that issue and resolve the case on the merits. This

pragmatic approach can be utilitarian in some cases; a court

occasionally may avoid addressing an enigmatic threshold issue by

cutting directly to the merits. See Lambrix v. Singletary, 520

U.S. 518, 525 (1997) (disclaiming any intention "to suggest that

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the procedural-bar issue must invariably be resolved first" in a

habeas case, and explaining that "[j]udicial economy might counsel"

going directly to the merits if the merits were easily resolvable

against the petitioner); Pough v. United States, 442 F.3d 959, 965

(6th Cir. 2006) (explaining that issue of timeliness of section

2255 motion may be bypassed and claims decided against petitioner

on the merits); cf. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009)

(admonishing that judges "should be permitted to exercise their

sound discretion in deciding which of the two prongs of the

qualified immunity analysis should be addressed first in light of

the circumstances in the particular case at hand"). But using this

approach requires, at a bare minimum, that the outcome on the

merits is both clear and favorable to the party advocating the

threshold issue. See Lambrix, 520 U.S. at 525.

If it were obvious that the petition lacked merit,

bypassing the equitable tolling inquiry would be a practical

solution. That is not the case here. The petition raises serious

constitutional questions, and the scanty record does not permit an

authoritative resolution of those questions.

We need not wax longiloquent. For now, it suffices to

say that the same types of informational shortfalls that counsel

against deciding the equitable tolling question on this chiaroscuro

record likewise counsel against deciding the constitutional claims

without better development of the facts. We explain briefly.

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 The Court Interpreters Act, 28 U.S.C. § 1827(d)(1)(A),

provides that a judge must arrange for the services of a qualified

court interpreter if a criminal defendant "speaks only or primarily

a language other than the English language." Once the court is on

notice that a defendant's understanding of the proceedings may be

inhibited by his limited proficiency in English, it has a duty to

inquire whether he needs an interpreter. See, e.g., United States

v. Zaragoza, 543 F.3d 943, 949 (7th Cir. 2008). In the case at

hand, both of the petitioner's substantive claims — deprivation of

due process and ineffective assistance of counsel — require an

examination of whether the petitioner was entitled to, offered, or

actually received the services of an interpreter at his change-of-

plea hearing.

On the incomplete record that was available to the

district court, it could not answer these crucial questions with

any degree of assurance. The court's attempt to answer them,

quoted supra at 7, is nothing more than conjecture. By like token,

the court's facile reinterpretation of counsel's warning that the

petitioner did not understand English is unconvincing. Speculating

about such basic facts as whether Judge Carter informed the

petitioner of his right to an interpreter, whether the petitioner's

proficiency in the English language was so limited that an

interpreter was needed, and whether the petitioner waived any

entitlement is not a substitute for factfinding.

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 D. Next Steps.

To this point, we have explained that the record as it

stands is too tenebrous to permit a reasoned answer to any of the

three questions framed in the COA. A further question remains:

Where do we go from here?

A habeas petitioner has the burden of adducing facts

sufficient to show both that his petition should be treated as

timely and that he is entitled to relief. See, e.g., Riva, 615

F.3d at 39 (stating that "habeas petitioner bears the burden of

establishing the basis for equitable tolling"); Gonzales-Soberal v.

United States, 244 F.3d 273, 277 (1st Cir. 2001) (explaining that

petitioner pressing ineffective assistance claim in section 2255

motion is required to establish entitlement to relief by

preponderance of the evidence). But the situation in this case is

highly idiosyncratic; the issues are tangled and the events at

issue span many years. Moreover, the petitioner persistently

requested an evidentiary hearing to develop the facts relevant to

his claims. Those requests were uniformly denied.

An evidentiary hearing may be available in connection

with a section 2255 petition. See Rule 8, Rules Governing Section

2255 Proceedings. While a petitioner "is not entitled to an

evidentiary hearing as a matter of right," David v. United States,

134 F.3d 470, 477 (1st Cir. 1998), an evidentiary hearing sometimes

serves the ends of justice. We think that this is such a case.

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The circumstances are exceptional; and the situation is complicated

by the nuanced nature of the questions presented, the inherent

difficulty of obtaining reliable information needed to answer those

questions, the petitioner's limited proficiency in the English

language, the absence of counsel during several critical periods,

the sheer passage of time, and the participation of multiple

district judges.4

Habeas courts should be guided by equitable principles.

See Holland, 130 S. Ct. at 2560. Here we believe that the fairest

and best way to proceed is to direct the district court, on remand,

to hold an evidentiary hearing. Such a hearing will help to

provide a fuller picture of the relevant facts and the tangled

issues.

III. CONCLUSION

We need go no further. We decline to answer any of the

questions posed in the COA due to the pervasive uncertainty that

dogs the record. Accordingly, we vacate the judgment and remand to

the district court for further development of the record with a

view toward determining whether the petition is timely by reason of

equitable tolling and, if so, whether the petitioner is entitled to

4
Rule 4(a) of the Rules Governing Section 2255 Proceedings
contemplates that the same judge who handles a petitioner's trial
ordinarily should review his section 2255 petition. Here, however,
through no fault of either the petitioner or the district court, a
series of different judges were involved at different stages of the
change-of-plea, sentencing, and post-conviction section 2255
proceedings.

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relief on the merits of his substantive claims. We take no view as

to the appropriate resolution of any of these matters on remand.

Vacated and remanded.

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