FILED
NOT FOR PUBLICATION JAN 30 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GABRIEL A. LEON, No. 09-56111
Petitioner - Appellant, D.C. No. 8:09-cv-00323-R-AN
v.
MEMORANDUM *
ANTHONY HEDGPETH,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted January 9, 2012
Pasadena, California
Before: REINHARDT and W. FLETCHER, Circuit Judges, and BREYER,
District Judge.**
Gabriel Anthony Leon (“Leon”), a California state prisoner, appeals the
district court’s dismissal of his petition for habeas corpus under 28 U.S.C. § 2254.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.
The district court held that Leon’s petition was time-barred under the one-year
statute of limitations of the Antiterrorism and Effective Death Penalty Act
(“AEDPA”). 28 U.S.C. § 2244(d)(1). Leon argues that he is entitled to equitable
tolling for his damaged urethra, resulting reconstructive surgery, follow up
treatments, and morphine medication. We agree.
We review de novo the district court’s dismissal of a habeas petition as time-
barred. Bryant v. Ariz. Atty. Gen., 499 F.3d 1056, 1059 (9th Cir. 2007). The
district court’s findings of fact are reviewed for clear error. Id. However, if the
underlying facts are undisputed, we review de novo whether the statute of
limitations under AEDPA should be equitably tolled. Id.
The parties do not dispute the district court’s calculation of the relevant
dates. Leon filed his first state collateral petition 135 days after his convictions
became final. He received statutory tolling under § 2244(d)(2) for the period when
his state collateral petitions were pending. This left Leon 230 days — or, until
December 1, 2008 — to file his federal petition. Leon constructively filed the
petition on January 26, 2009 — 56 days past the deadline.
A petitioner is entitled to equitable tolling of the AEDPA statute of
limitations under § 2244(d)(1) if he shows that (1) some extraordinary
circumstance prevented timely filing, and (2) he has been diligently pursuing his
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rights. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). Leon suffered from his
urological condition when he timely pursued his direct appeal and collateral relief
in state courts. However, evidence in the record indicates that his painful condition
deteriorated significantly during the relevant equitable tolling time period in 2008.
Leon required a week-long hospitalization in late October, shortly before his
AEDPA deadline was set to expire. Following the surgery, Leon took regular
doses of morphine and made repeated medical visits, culminating in another three-
day hospitalization in February 2009. Thus, unlike the petitioner in Gaston v.
Palmer, 417 F.3d 1030, 1035 (9th Cir. 2005), as amended by 447 F.3d 1165 (9th
Cir. 2006), Leon has shown that his physical condition worsened significantly
during the relevant period. Further, despite his deteriorating condition, and with
the assistance of another inmate, Leon prepared and filed his federal habeas
petition in January 2009 — less than two months after his AEDPA deadline had
expired (not giving credit for equitable tolling) and only two weeks before he
returned to the hospital for another procedure.
We often remand for further factual development where a district court has
dismissed a habeas petition as untimely without holding an evidentiary hearing.
See, e.g., Porter v. Ollison, 620 F.3d 952, 962 (9th Cir. 2010). However, the state
conceded at oral argument that Leon’s medical records do not need supplementing.
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We therefore conclude that the available evidence and medical records establish
that Leon is entitled to equitable tolling of at least 56 days. As a result, his federal
habeas petition was timely.
Accordingly, we REVERSE and REMAND with instructions for the district
court to afford Leon equitable tolling and proceed to the merits of his habeas
petition.
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