FILED
NOT FOR PUBLICATION MAY 19 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-17273
Plaintiff - Appellee, D.C. Nos. 2:12-cv-00172-JCM
2:09-cr-00262-JCM -
v. RJJ-2
ADRIAN FUENTES-GARCIA,
MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted May 15, 2014**
San Francisco, California
Before: RIPPLE,*** SILVERMAN, and GOULD, Circuit Judges.
Fuentes-Garcia appeals the district court’s dismissal of his pro se 28 U.S.C.
§ 2255 motion to vacate his sentence. He admits that he filed his motion outside
*
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).
***
The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
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the one-year limitations period, see 28 U.S.C. § 2255(f), but argues that the district
court erred in dismissing the motion as untimely without first holding an
evidentiary hearing to determine whether he is entitled to equitable tolling. We
have jurisdiction pursuant to 28 U.S.C. § 2253, United States v. Battles, 362 F.3d
1195, 1196 (9th Cir. 2004), and we vacate the dismissal and remand for further
factual development.
“Generally, a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005). He must also show a “causal link” between the
extraordinary circumstances and the untimeliness of the § 2255 motion. United
States v. Buckles, 647 F.3d 883, 890 (9th Cir. 2011). A petitioner is entitled to an
evidentiary hearing if he makes “a good-faith allegation that would, if true, entitle
him to equitable tolling.” Laws v. Lamarque, 351 F.3d 919, 921 (9th Cir. 2003).
Fuentes-Garcia has made colorable allegations sufficient to warrant an
evidentiary hearing. He has alleged that he was deprived of materials from the
district court’s docket for a substantial portion of the limitations period, and
“[d]eprivation of legal materials is the type of external impediment for which we
have granted equitable tolling.” Waldron-Ramsey v. Pacholke, 556 F.3d 1008,
1013 (9th Cir. 2009). He has also alleged that he was reasonably diligent in
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pursuing his petition, but was stymied by the district court clerk’s mistaken belief
that he had not sent payment for the docket sheet and/or the prison’s delay in
disbursing the requisite funds. See Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.
1999) (“When external forces, rather than a petitioner’s lack of diligence, account
for the failure to file a timely claim, equitable tolling of the statute of limitations
may be appropriate.”).
The district court concluded that the case documents were irrelevant to
Fuentes-Garcia’s ineffective assistance of counsel claims, despite Fuentes-Garcia’s
allegation that the materials were “very important and necessary.” This allegation
is bolstered by the fact that some of the documents he requested, such as the
government’s plea memorandum and transcripts of his sentencing hearing, appear
to generally relate to his claims concerning his attorney’s performance during plea
negotiations and sentencing. Because there are “circumstances consistent with
petitioner’s petition . . . under which he would be entitled . . . to equitable tolling,”
the district court abused its discretion in dismissing the motion without first
developing the factual record. Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th
Cir. 2000) (en banc) (per curiam).
VACATED AND REMANDED.