Carlos MENDOZA, Petitioner-Appellant, v. Tom L. CAREY, Warden, RespondentAppellee, 449 F.3d 1065

TASHIMA, Circuit Judge: Carlos Mendoza, a California state prisoner, appeals from the judgment of the district court, which dismissed as untimely his petition for writ of habeas corpus. Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), habeas petitions must be filed within one year from the date when the petitioner’s judgment of conviction became final. 28 U.S.C. § 2244(d).

Mendoza, who is a Spanish speaker, argued that he should qualify for equitable tolling of the one-year limitations period because the prison law library failed to provide Spanish-language books or Spanish-speaking clerks or librarians to assist Spanish-speaking inmates. The magistrate judge concluded that the absence of Spanish-language materials from Mendoza’s prison library did not amount to an extraordinary circumstance for purposes of the equitable tolling analysis. The district court adopted the magistrate judge’s report and recommendation; accordingly, it dismissed Mendoza’s petition as untimely.

On appeal, Mendoza contends that he is entitled to equitable tolling because the lack of Spanish-language assistance was an extraordinary circumstance beyond his control that made it impossible to file a timely petition. Further, he contends that the district court erred in failing to hold an evidentiary hearing on the issue of whether equitable tolling was appropriate. We have jurisdiction under 28 U.S.C. § 2253. We agree that an evidentiary hearing is required because Mendoza has alleged facts which, if true, could entitle him to equitable tolling.

We therefore reverse and remand to the district court for development of the factual record. Factual and Procedural Background Mendoza is currently serving a 14-year sentence after pleading no contest to a charge of assault with a firearm. Mendoza did not appeal; therefore, his conviction became final on August 21, 2001, 60 days after the judgment of conviction. He filed his first petition for writ of habeas corpus in the Superior Court of California on May 14, 2003.

He subsequently filed a second habeas petition in the Superior Court, a petition in the California Court of Appeal, and two petitions in the California Supreme Court. All of these petitions were denied, with the final denial from the California Supreme Court occurring on March 17, 2004. Mendoza then filed his federal habeas petition on April 3, 2004. On April 26, 2004, the district court issued an order requiring petitioner to show cause why the petition should not be dismissed as untimely.

It noted that the AEDPA’s limitations period expired on August 21, 2002, one year after Mendoza’s conviction became final, and that absent equitable or statutory tolling, his petition was time-barred.

According to the district court, Mendoza had not “provided any explanation for the lengthy delay in filing,” other than the allegation that he had been “hindered because he speaks Spanish and the prison does not provide Spanish language law books.” Mendoza responded to the order to show cause on May 24, 2004, stating that the prison law library possessed no Spanish books, no Spanish-English legal dictionaries, and no postings about the AEDPA time limitations in any language.

In a declaration filed in support of his response, Mendoza stated that during his first three months of incarceration, he was held at the Reception Center, where there were no Spanish-language books and where he was told that he “would have to wait until [he] got to [his] regular assigned prison.” When he arrived at Solano State Prison, Mendoza found no Spanish language books or forms, and returned to the library “several times” but found only English-language books and English-speaking clerks and librarians.

He further stated that he became “very discouraged” due to this inability to obtain information in Spanish. He “finally engaged in conversations with people on the prison yard” and found a recently-arrived inmate named Antonio who, for a fee, assisted Mendoza in filing a petition for writ of habeas corpus in the California Superior Court. Later, another inmate, Antolin Andrews, prepared and filed petitions on Mendoza’s behalf in the California Court of Appeal, the California Supreme Court, and finally, the district court.

Mendoza further asserted in his declaration that he would have challenged his sentence within a year if he had seen any notice in the prison alerting him to the one-year limitations period. In addition to his own declaration, Mendoza filed 47 identical, form declarations, each signed by a Spanish-speaking inmate. Each declaration stated that the inmate had been to the legal library at the prison; had found no Spanish books that could assist the inmate in pursuing court action; and that the librarians and legal clerks did not speak Spanish.

Antolin Andrews, the inmate who assisted Mendoza with his petitions, also filed a declaration asserting that in his experience with many California state prisons, he had never seen any Spanish books in the prison law libraries. After reviewing this response to the order to show cause, the magistrate judge recommended that Mendoza’s habeas petition be dismissed as untimely.

The magistrate judge first found that statutory tolling was not applicable in this ease because statutory tolling extends the filing deadline only during the time in which a “properly filed state habeas petition [is] pending,” and Mendoza did not file any state habeas petitions until after the federal filing deadline had passed.

On the issue of equitable tolling, the magistrate judge found that Mendoza’s “general lack of legal knowledge, indigencfe], and limited English skills are not external factors or extraordinary circumstances beyond his control that made it impossible for him to file a timely petition.” The district court adopted the report and recommendation of the magistrate judge, and dismissed the habeas petition as untimely. Mendoza appealed, and the district court declined to issue a Certificate of Appealability (“COA”).

We granted a COA on the following issues: (1) whether Mendoza is entitled to equitable tolling based on his inability to comprehend English and the lack of Spanish-language materials in the library; and (2) whether the district court erred in failing to hold an evidentiary hearing on the issue. Standard of Review A district court’s denial of a petition for writ of habeas corpus is reviewed de novo, and denial of an evidentiary hearing is reviewed for abuse of discretion. United States v. Sandoval-Lopez, 409 F.3d 1193, 1195 (9th Cir.2005) (citing United States v. Rodrigues, 347 F.3d 818, 823 (9th Cir.2003)).

Findings of fact made by the district court are reviewed for clear error. Moran v. McDaniel, 80 F.3d 1261, 1268 (9th Cir.1996). Discussion “[A] litigant seeking equitable tolling [of the one-year AEDPA limitations period] bears the burden of establishing two elements: (1) that he has been pm-suing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 1814, 161 L.Ed.2d 669 (2005). “[T]he threshold necessary to trigger equitable tolling under [the] AEDPA is very high, lest the exceptions swallow the rule.” Miranda v.

Castro, 292 F.3d 1063, 1066 (9th Cir.2002) (internal quotation marks and citation omitted). This high bar is necessary to effectuate the “AED-PA’s statutory purpose of encouraging prompt filings in federal court in order to protect the federal system from being forced to hear stale claims.” Guillory v. Roe, 329 F.3d 1015, 1018 (9th Cir.2003) (internal quotation marks and citation omitted). Equitable tolling determinations are “highly fact-dependent.” Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc) (per curiam). Ac cord, Lott v.

Mueller, 304 F.3d 918, 923 (9th Cir.2002) (observing that equitable tolling determinations “turn[ ] on an examination of detailed facts”). Whether a habeas petitioner’s inability to obtain Spanish-language materials or procure translation assistance can be grounds for equitable tolling of the AED-PA’s one-year limitations period is a question of fust impression in this Circuit. In Whalem/Hunt, 233 F.3d at 1148, we held that the unavailability of a copy of the AEDPA in a prison law library could, but did not necessarily, constitute grounds for equitable tolling.

We remanded the case to the district court for appropriate development of the record. Id. So long as there are some circumstances “consistent with petitioner’s petition and declaration” that would entitle the petitioner to equitable tolling, remand is appropriate. Id.; see also Laws v.

Lamarque, 351 F.3d 919, 921 (9th Cir.2003) (holding that “[bjecause [petitioner] ... made a good-faith allegation that would, if true, entitle him to equitable tolling,” the claim should be remanded to the district court for further factual development of petitioner’s claim that he was mentally incompetent during the limitations period). While Whalem/Hunt does not directly control the facts of this case, we find its reasoning instructive.

In Whalem/Hunt, the state’s failure to provide access to the text of the AEDPA constituted possible grounds for equitable tolling because, according to the petitioner’s allegations, the absence of a copy of the AEDPA prevented him from learning about the AEDPA’s one-year deadline and therefore prevented a timely filing. See 233 F.3d at 1149 (Ta-shima, J., concurring). We concluded that remand was the appropriate remedy because the district court had provided the petitioner “no opportunity to amend his petition or expand his declaration,” and had failed to hold an evidentiary hearing. Id. at 1148.

By analogy, Mendoza has alleged that lack of access to Spanish-language legal materials prevented him from learning about the AEDPA’s deadline and thereby prevented his timely filing. According to his declaration, when Mendoza was first incarcerated, he requested Spanish-language legal materials but was told to “wait until [he] got to[his] regular assigned prison.” After arriving at Solano State Prison, he made several trips to the library but found only English-language books and only English-speaking clerks and librarians.

Not until Mendoza found a newly-arrived, bilingual inmate willing to offer assistance was he able to file his habeas petition; however, by this time, the AED-PA deadline had already passed. We conclude that this combination of (1) a prison law library’s lack of Spanish-language legal materials, and (2) a petitioner’s inability to obtain translation assistance before the one-year deadline, could constitute extraordinary circumstances.

This holding comports with the decisions of other Circuits, which have rejected a per se rule that a petitioner’s language limitations can justify equitable tolling, but have recognized that equitable tolling may be justified if language barriers actually prevent timely filing. In Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir.2002), the court held that a petitioner’s “inability to speak, write and/or understand English, in and of itself, does not automatically” justify equitable tolling.

The court emphasized that the “existence of a translator who can read and write English and who assists a petitioner during appellate proceedings” renders equitable tolling inapplicable for that petitioner. Id. Because Cobas had written a detailed letter to his counsel in English and had otherwise demonstrated his ability to either communicate in English or communicate with a translator, the record in Cobas’ case “belie[d] any claim that language difficulties prevented Cobas from filing his petition in a timely manner.” Id.

We find this reasoning persuasive, because it implicitly identifies the category of non-English-speaking inmates whose situations could constitute “extraordinary circumstances.” Although the petitioner was ultimately denied relief in Cobas, the decision’s rationale left open the possibility that a non-English speaker who could not find a willing translator could qualify for equitable tolling.

Following this reasoning, we conclude that a non-English-speaking petitioner seeking equitable tolling must, at a minimum, demonstrate that during the running of the AED- PA time limitation, he was unable, despite diligent efforts, to procure either legal materials in his own language or translation assistance from an inmate, library personnel, or other source. We agree with Co-bas that a petitioner who demonstrates proficiency in English or who has the assistance of a translator would be barred from equitable relief. See id.; see also United States v.

Sosa, 364 F.3d 507, 512-13 (4th Cir.2004) (applying Cobas’ reasoning and concluding that the petitioner’s “excellent” English skills and ability to compose, without assistance, court filings in English, foreclosed any contention that lack of English proficiency justified equitable tolling). Our conclusion is completely consistent with the Supreme Court’s recent decision addressing law library access rights. Kane v.

Garcia Espitia, — U.S. -, -, 126 S.Ct. 407, 408, 163 L.Ed.2d 10 (2005) (per curiam), held that the denial of access to a law library cannot provide a basis for a pro se petitioner’s habeas relief because no Supreme Court case clearly establishes a pro se petitioner’s constitutional right to law library access. The case at bench, however, involves only the tolling of an AEDPA deadline, not the actual grant of habeas relief, as was sought in Kane.

Relief for Mendoza turns on the existence of an extraordinary circumstance that prevented timely filing, which does not require proof of any constitutional violation, much less a violation of a constitutional right that has been clearly established by the Supreme Court. Cf. id. at 408; 28 U.S.C. § 2244(d)(1)(B); 28 U.S.C. § 2254(d)(1). Accordingly Kane’s holding that the Supreme Court has not clearly established a Sixth Amendment right to law library access has no bearing on the inquiry before us.

Because Mendoza alleged that he lacks English language ability, was denied access to Spanish-language legal materials, and could not procure the assistance of a translator during the running of the AED-PA limitations period, he has alleged facts that, if true, may entitle him to equitable tolling. Therefore, there are “circumstances consistent with petitioner’s petition and declaration under which he would be entitled to ... equitable tolling,” Whalem/Hunt, 233 F.3d at 1148, and remand for factual development of the record is the appropriate course of action.

Mendoza has not yet been granted an evidentiary hearing in which his factual allegations could be established; nor has the State been provided with an opportunity to rebut Mendoza’s allegations. We therefore reverse and remand to the district court for appropriate development of the record. REVERSED and REMANDED. . The dissent states that Mendoza "does not claim that he can read Spanish." Dissent at 6246. It is true that Mendoza does not make an outright, flat statement that he can read Spanish, but that fact is easily and reasonably inferred from the statements he does make.

For example, Mendoza states in his declaration that "if I had ever seen any notice in the Department of Corrections that I had only one year to challenge my sentence I would have done so, especially if such notice was written in Spanish.” (Emphasis added.) Inferring from these statements a conclusion other than that Mendoza can read Spanish defies common sense.

While we agree with the dissent that the ability to read a foreign language "is not transmitted through the blood,” dissent at 6246 n. 2, Mendoza requested Spanish-language books at two prisons, acts that are inexplicable unless Mendoza is able to read Spanish. . At the time Mendoza filed his first state habeas petition, the AEDPA limitations period had already expired. .

In Whalem/Hunt we concluded that the unavailability of a copy of the AEDPA also could be grounds for statutory tolling under the "state-created impediment” provision, see 28 U.S.C. § 2244(d)(1)(B), and remanded for further factual development of both that claim and the equitable tolling claim. See 233 F.3d at 1148. The COA in this case, however, included only the equitable tolling issue. Therefore, this opinion addresses the need for an evidentiary hearing in the context of that claim only. . The dissent's reliance on Cobas, dissent at 6250-51, is misplaced.

In Cobas, tolling was denied because the petitioner could communicate in English. See Cobas, 306 F.3d at 444 ("As far back as 1993, Cobas wrote a detailed letter to his appellate attorney in English in which he discussed complex legal issues in detail.”). Here, in contrast and contrary to the dissent's insinuation, the record contains no indication that Mendoza could communicate in English. The dissent further misreads Cobas when it argues that "were Cobas the law of this circuit, a fortiori Mendoza would lose on his tolling claim....” Dissent at 6251.

The dissent misses the distinction between a translator whose help is not obtained until after the running of AEDPA’s one-year time limit, as was the case here, and a translator who is available during AEDPA’s one-year time period, as was the case in Cobas. Cobas held that the existence of a translator who assists the petitioner "during his appellate proceedings” negates a petitioner's claim that he had reasonable cause for remaining ignorant of AEDPA's requirements. 306 F.3d at 444.

Cobas did not address the situation presented here in which the petitioner did not have any appellate assistance and claims that he could not obtain the assistance of a translator until after the time limitation had run. . Because we acknowledge the possibility, as Cobas recognized, that inmates could use the services of translators not provided by the State, we announce no rule affirmatively requiring that prisons provide legal materials in Spanish. . The standard for equitable tolling requires both the presence of an extraordinary circumstance and the inmate's exercise of diligence. Pace, 125 S.Ct. at 1814.

The question of Mendoza’s diligence is unclear from the limited record before us. Mendoza’s declaration refers to his discouragement at not finding Spanish-language assistance in the prison law library, and refers to his "finally” obtaining the services of a bilingual inmate. These statements, however, make no reference to the time period in which these actions occurred. Therefore, it is impossible to ascertain on this record whether, during the relevant time period, Mendoza exercised the requisite diligence in his search for Spanish-language materials or a willing translator.

Upon remand, the district court will be able to clarify these factual ambiguities.