dissenting:
I respectfully dissent.
Mendoza accepted a plea bargain and was sentenced in state court to fourteen years for assault with a firearm on a person. He contends in his federal petition for a writ of habeas corpus that his sentence was illegal. This case involves, not the merits, but the lateness of his petition. Here are the relevant dates of filing and denial of all filings seeking post conviction relief:
Sentence pronounced: June 21, 2001
Conviction final (there was no appeal): August 21, 2001
Petition for writ of habeas corpus in California Superior Court May 14, 2003, denied May 16, 2003
Petition for writ of habeas corpus in California Supreme Court July 10, 2003, denied March 17, 2004
Petition for writ of habeas corpus in Los Angeles Superior Court: July 18, 2003, denied July 31, 2003
Petition for writ of habeas corpus filed in United States District Court April 15, 2004 (this is the date it is stamped filed, but the court throughout has given him the benefit of the “mailbox rule” and considered it filed on April 3), denied September 1, 2004
Unless equitably tolled, the AEDPA one-*1072year statute of limitations1 barred Mendoza’s federal habeas petition in August 2002, long before he filed anything in any court challenging his conviction or sentence. He was silent during the year he was given to challenge his conviction and sentence. The majority concludes that the one-year statute of limitations may not have run because Mendoza has made a sufficient showing to get an evidentiary hearing on whether language difficulties prevented him from filing a timely petition. The evidence in the record undermines that conclusion.
Mendoza was born in the U.S.A. He says that his parents were Spanish speaking. Though he complains of the lack of Spanish legal materials in prison libraries, he does not claim that he can read Spanish.2 Nor does he show that the necessary legal materials, such as the federal statutes, rules, and cases exist in Spanish text. We are evidently imposing an evidentiary hearing on this old conviction on the theory that one somehow becomes literate in an ancestral language by osmosis and no declaration asserting this literacy is required. Were that so, there would be a lot of subscriptions to Der Spiegel, Le Monde, the Yiddish edition of The Forward, and all sorts of other foreign language newspapers and magazines in the United States. Most of us who are born in the United States, as Mendoza was, are unfortunately illiterate in our ancestral tongues. Mendoza evidently speaks Spanish, and does not read English, but that does not imply that he reads Spanish at a level such that he could understand legal texts if they were available to him in Spanish. Those imprisoned for gang shootings on the streets of Los Angeles as Mendoza was may not always have been the stars of their junior high school class. He has not claimed that he can read Spanish.
Mendoza’s declaration says that the “reception center” to which he was initially sent had no Spanish-language materials and the librarian there told him that he would have to wait until he got to his assigned prison. That could not have prevented him from filing something within a year because he says he was at the reception center for only about three months before arriving at Solano State Prison. That left him about nine months after he got to Solano State Prison to file his petition.
Assuming that Mendoza spoke Spanish but not English, as suggested by his declaration, what he would need is Spanish speakers who could read English. So far as the declarations show, he had them. He complains that at the prison library, “most” of the inmates were not Spanish speakers, which implies that some were, and he says that “all” spoke English. He had nine months at the prison before limitations ran out, so it is Mendoza’s burden to prove that, even with due diligence, extraordinary circumstances prevented him from filing before the deadline. That raises the question of why he did not enlist any of the bilingual inmates to help him.
He says in his declaration that he “finally” learned of someone who could help him through prison yard conversations and this prisoner wrote his unsuccessful May 2003 *1073petition for him. But, he does not establish that there were no bilingual prisoners before that, and it is hard to believe there were not. It is not as though he spoke some language rare in California like Inu-piat.
The 47 declarations by other prisoners that Mendoza filed demonstrate not the absence of an ability to communicate with the court, but its presence. The majority says that Mendoza has shown that he “could not procure the assistance of a translator” during his year, but his submissions show the opposite. Many of his declarants say that they were at Solano State Prison during the entire nine months Mendoza was there before limitations barred Mendoza’s claim. All of the declarations are in English, implying that the declarants speak and read English. They nowhere suggest that they could not read English. The inmate declarations Mendoza submitted all say: “I am a Spanish speaking person and Spanish reading person.” But Mendoza’s declaration does not say that he is a “Spanish reading person.” He was born in the U.S.A., so it does not go without saying.
Thus, what Mendoza has proved is that he speaks Spanish, and he was surrounded by people who spoke and read English and Spanish throughout the nine months that limitations were running out. All of the declarations complain of the absence of Spanish-language law books in the prison library, but in the absence of evidence that the relevant law books exist or that Mendoza could have read them if they were there, the complaint does not establish even a colorable claim that the absence of Spanish-language law books mattered to Mendoza. He says he did not find any of his many fellow prisoners who could have helped him during his first year of incarceration, but that excuse is not a level of diligence justifying equitable tolling. Mendoza says he was “very discouraged because of the lack of ability to know anything about my sentence and why I had received so much time,” but if he means to refer to linguistic difficulty, as opposed to a broader difficulty in.understanding why shooting up a street in Compton got him thrown in prison, discouragement does not excuse doing nothing for a year.
Congress imposed a one year statute' of limitations on federal habeas petitions.3 Equitable tolling is the exception, not the rule.4 The test is whether “ ‘extraordinary circumstances’ beyond a prisoner’s control make it impossible to file a petition on time.”5 “Due diligence” is required of the prisoner to merit tolling,6 and the prisoner has the burden of establishing his entitlement to tolling.7
The ' majority opinion says Mendoza might be entitled to equitable tolling if he “demonstrate^ that during the running of the AEDPA time limitation, he was unable, despite diligent efforts, to procure either *1074legal materials in his own language or translation assistance from an inmate, library personnel, or other source.” Our creation of a right to one or the other ought to await a case where the facts show that it would have mattered. Mendoza’s evidence shows that he had plenty of fellow prisoners who could translate for him. He does not show that relevant Spanish-language legal materials exist.
The authorities do not support the majority’s decision. The Supreme Court recently held in Kane v. Espitia8 that there is no right clearly established by a Supreme Court decision to access to a law library at all, let alone one in Spanish. The decision summarily and unanimously reverses a decision in which we had granted a writ because a pro se defendant claimed he had no access to a law library while in jail preparing for trial.9 In Wha-lem/Hunt v. Early,10 we held that a prisoner might be entitled to tolling where there was no way he could even find out about the one year statute of limitations in his prison library because it had not been kept up to date, but there, unlike here, there was a record that demonstrated an impediment that the prisoner could not surmount with due diligence.
The majority’s reliance on Cobas v. Burgess is puzzling.11 In that case, the inmate argued for equitable tolling “because he was born and raised in Cuba and is unable to understand, read, or write the English language.”12 The Sixth Circuit held against Cobas, not for him, denying him equitable tolling and affirming the dismissal of his habeas petition because it was time barred. “We hold that where a petitioner’s alleged lack of proficiency in English has not prevented the petitioner from accessing the courts, that lack of proficiency is insufficient to justify an equitable tolling of the statute of limitations.”13 The court noted that, although Cobas had had an interpreter for his trial, he had sent letters in English, possibly with the assistance of a translator.14 The court held that “[i]n general, the existence of a translator who can read and write English and who assists a petitioner during his appellate proceedings implies that a petitioner will not have a reasonable cause for remaining ignorant of the legal requirements for filing his claim.”15 Under Cobas “even his illiteracy does not give a court reason to toll the statute of limitations,”16 and “we are loath to impose any standards of competency on the English language translator utilized by the non-English speaking habeas petitioner.” 17 Were Cobas the law of this circuit, a fortiori Mendoza would lose on his tolling claim, not win. And the Eleventh Circuit followed the Sixth, in United States v. Montano.18
There is a real problem, and also a fake one, underlying this case. The real problem is that because inmates are not entitled to appointed counsel for habeas *1075petitions,19 they have little hope of understanding the myriad subtleties and intricacies of habeas law. It is a subject that challenges the most capable lawyers and judges. The fake problem is the lack of a Spanish-language library in Solano State Prison, where Mendoza has been. This American-born prisoner does not show that he needed a Spanish library, or that he could have read the books in it if they were there, or that he lacked access to fellow prisoners who could read what was there in English and help him with his legal papers. This case appears to be an effort by a jailhouse lawyer, who boasts in his declaration of his own extensive experience in fourteen different prisons in California and the lack of Spanish-language law books in any of their libraries. Maybe that is a real problem in some cases, but it is a fake problem in this one because there is no showing that it would have mattered. Mendoza’s many filings in English show that he has been able to gain access to the courts. The threshold for equitable tolling under AEDPA is “very high, lest the exceptions swallow the rule.”20 This American-born inmate has not demonstrated a barrier to access to himself (as opposed to others who might, perhaps, understand and read a more exotic language that no other prisoners spoke) that would, if true, entitle him to tolling.
. 28 U.S.C. § 2244(d)(1).
. The majority says that any inference other than that Mendoza can read Spanish "defies common sense.” Majority Opinion at 6237, n. 1. I think common sense suggests that a person born in the U.S.A. who grew up here most likely does not read Spanish and that anyone who filed as many affidavits as Mendoza did would file one saying that he could read Spanish, if he felt he could do so without exposing himself to a perjury prosecution. The ability to read a language foreign to the country of one's birth is not transmitted through the blood.
. 28 U.S.C. § 2244(d).
. See Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.2002).
. Calderon v. United States Dis. Ct. for the Centr. Dist. of Cal.(Beeler), 128 F.3d 1283, 1288 (9th Cir.1997), overruled in part on other grounds, Calderon v. United States Dis. Ct. for the Centr. Dist. of Cal.(Kelly), 163 F.3d 530 (9th Cir.1998).
. Allen v. Lewis, 255 F.3d 798 (9th Cir.2001); see also Valverde v. Stinson, 224 F.3d 129, 133 (2nd Cir.2000) ("If the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent filing.").
.Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir.2002).
. Kane v. Espitia, - U.S. -, 126 S.Ct. 407, 163 L.Ed.2d 10 (2005).
. Id.
. Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir.2000) (en banc).
. Cobas v. Burgess, 306 F.3d 441 (6th Cir.2002) cert. denied Cobas v. Burgess, 538 U.S. 984, 123 S.Ct. 1793, 155 L.Ed.2d 677 (2003).
. Id. at 443.
. See Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) ("[T]he right to appointed counsel extends to the first appeal of right, and no further.”); Miranda v. Castro, 292 F.3d 1063, 1068 (9th Cir.2002).
. Miranda, v. Castro, 292 F.3d 1063, 1066 (9th Cir.2002) (internal citations omitted).
. Id. at 444.
. Id.
. Id. (internal citations omitted).
. Id.
. Id.
. United States v. Montano, 398 F.3d 1276, 1280 n. 5 (11th Cir.2005).