FILED
NOT FOR PUBLICATION NOV 01 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN VALENZUELA, No. 10-56052
Petitioner - Appellant, D.C. No. 2:10-cv-02428-DSF-AN
v.
MEMORANDUM*
L.S. McEWEN, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted October 7, 2013
Pasadena, California
Before: PREGERSON, WARDLAW, and TALLMAN, Circuit Judges.
California state prisoner Juan Valenzuela appeals the district court’s
dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely. We have
jurisdiction under 28 U.S.C. § 2253 and 28 U.S.C. § 1291. We vacate the district
court’s order dismissing the habeas petition as time-barred and remand for an
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
evidentiary hearing to determine whether Valenzuela is entitled to equitable
tolling.
A petitioner is entitled to equitable tolling if he can demonstrate that he has
diligently pursued his rights and an extraordinary circumstance stood in his way
and prevented timely filing. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010).
Equitable tolling is a highly fact-intensive inquiry, and “the district court is in a
better position to develop the facts and assess their legal significance.”
Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) (per
curiam).
On the basis of the existing record, “it cannot be conclusively determined
that [Valenzuela] is not entitled to equitable tolling.” Porter v. Ollison, 620 F.3d
952, 960 (9th Cir. 2010). The district court’s timeliness determination was made
before it received a response from the custodian or held an evidentiary hearing.
Accordingly, we are unable to determine whether Valenzuela’s habeas counsel was
retained to pursue federal habeas, and whether Valenzuela diligently pursued his
rights. Thus, “we believe the best course is to remand to the district court for
appropriate development of the record.” Whalem/Hunt, 233 F.3d at 1148.
We decline to expand the certificate of appealability to include Valenzuela’s
“actual innocence” claim. No reasonable jurist could determine that the facts as
presented by Valenzuela constitute a credible showing of actual innocence. See
Lee v. Lampert, 653 F.3d 929, 937 (9th Cir. 2011) (en banc).
We VACATE the district court’s order dismissing the petition as untimely
and REMAND for an evidentiary hearing to determine whether Valenzuela has
demonstrated that he is entitled to equitable tolling.
VACATED AND REMANDED. Each party shall bear its own costs on
appeal.