Roy v. Lampert

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALBERT ROY, 
Petitioner-Appellant, No. 04-35514
v.  D.C. No.
ROBERT O. LAMPERT, CV-01-00861-CO
Respondent-Appellee.

PHILLIP L. KEPHART,  No. 04-35626
Petitioner-Appellant, D.C. No.
v. CV-01-00690-CO
STAN CZERNIAK, Superintendent, ORDER
OSP, AMENDING
Respondent-Appellee.
 OPINION AND
DENYING
PETITION FOR
REHEARING/
REHEARING EN
BANC AND
AMENDED
 OPINION
Appeal from the United States District Court
for the District of Oregon
John P. Cooney, Magistrate Judge, Presiding
Argued and Submitted
December 5, 2005—Portland, Oregon
Filed July 12, 2006
Amended September 22, 2006
11859
11860 ROY v. LAMPERT
Before: James R. Browning, Dorothy W. Nelson, and
Diarmuid F. O’Scannlain, Circuit Judges.
Opinion by Judge D.W. Nelson
11864 ROY v. LAMPERT
COUNSEL
Anthony D. Bernstein, Portland, Oregon, for the appellant.
Erin C. Lagesen, Assistant Attorney General, Salem, Oregon,
for the appellee.
ORDER
The opinion filed on July 12, 2006, slip opinion at 7625
and published at 455 F.3d 945 (9th Cir. 2006) is amended as
follows:
Page 7641 of the slip opinion, last words:
replace “[other things]” with “[circumstances other
than petitioner’s lack of diligence]”
Page 7643 of the slip opinion, last two sentences of the first
full paragraph:
replace: “Kephart was in fact told by his attorney
that the statute of limitations did not expire until
December of 1997, eight months after the actual
expiration date. Kephart’s attorney told him of the
date he believed to be the expiration date for filing
his habeas claim after Kephart was already in Ari-
zona, and therefore after the point at which he could
have confirmed or disproved what his attorney
informed him about AEDPA.” with “Likewise,
Kephart asserted that he had had “no . . . notice of
the AEDPA” either from the prison library or from
any other source, and that he “was not able to gain
knowledge of the one year limitation period for fil-
ing under [AEDPA]” until after he had filed his state
post-conviction petition and had been returned to
Oregon.”
ROY v. LAMPERT 11865
With these amendments, the members of the panel that
decided this case voted unanimously to deny the petition for
rehearing. Judge O’Scannlain voted to deny the petition for
rehearing en banc. Judges Browning and Nelson recom-
mended denial of the petition for rehearing en banc.
The full court has been advised of the petition for rehearing
en banc and no judge of the court has requested a vote on
whether to rehear the matter en banc.
The petition for rehearing and the petition for rehearing en
banc are denied. No further petitions for rehearing or rehear-
ing en banc may be filed.
OPINION
D.W. NELSON, Senior Circuit Judge:
Albert Roy and Phillip Kephart were both convicted of
crimes in Oregon state court. The federal district court dis-
missed both of their federal habeas petitions as untimely
because they were filed after the one-year statute of limita-
tions period created by the Antiterrorism and Effective Death
Penalty Act (“AEDPA”). We consolidated their cases to
answer a single question: Are Roy and Kephart entitled to an
evidentiary hearing regarding their claim that the statute of
limitations should be equitably tolled because they were trans-
ferred to an Arizona prison facility that, they allege, had a
woefully deficient law library?
Because we decide that Roy and Kephart made sufficient
allegations that they pursued their claims diligently and faced
extraordinary circumstances once they were transferred to the
Arizona prison facility, we remand this case to the district
court to hold an evidentiary hearing.
11866 ROY v. LAMPERT
I
Albert Roy pleaded guilty to two counts of first-degree sod-
omy in Oregon state court and was convicted of those two
counts. Roy appealed this conviction to the Oregon Court of
Appeals, which affirmed his conviction on August 23, 1995.
Roy did not appeal either to the Oregon Supreme Court or the
United States Supreme Court. Accordingly, his direct appeal
became final on November 1, 1995.
During this time, Roy was imprisoned in Oregon, but on
February 7, 1996, Roy was transferred to a private prison
facility in Florence, Arizona. Roy remained at this Arizona
facility until April 25, 1997, at which time he was returned to
the Oregon prison facility. On February 28, 1997, while he
was at the Arizona facility, Roy filed a petition for habeas
relief in the United States District Court for the District of
Arizona, complaining of his transfer to Arizona and the diffi-
culties it presented for his efforts to continue to pursue a chal-
lenge to his conviction. The Arizona court transferred this
case to the Oregon district court on August 28, 1998, and the
Oregon district court eventually dismissed the case.
On October 22, 1997, while his initial attempt to file a fed-
eral habeas petition was pending, and after Roy was trans-
ferred back to the Oregon prison facility, Roy filed a petition
for post-conviction relief in Oregon state court. This petition
was denied. The Oregon Court of Appeals affirmed this denial
without an opinion, and the Oregon Supreme Court denied
review. The decision of the Oregon Supreme Court became
final on December 5, 2000. On May 23, 2001, Roy filed the
federal habeas petition leading to this appeal.
Philip Kephart was also convicted in Oregon state court.
Kephart was convicted of four counts of second-degree
assault, one count of first-degree assault, one count of
attempted first-degree assault, and two counts of criminal
mistreatment. The Oregon Court of Appeals affirmed his con-
ROY v. LAMPERT 11867
victions on direct appeal. Kephart petitioned for review in the
Oregon Supreme Court, and the Oregon Supreme Court
remanded his case to the Oregon Court of Appeals, which
again affirmed his convictions. After the Oregon Court of
Appeals affirmed his convictions on remand, Kephart did not
appeal either to the Oregon Supreme Court or to the United
States Supreme Court, and therefore his direct appeal became
final on December 8, 1995.
Like Roy, Kephart was initially imprisoned in Oregon, and
was later transferred to the correctional facility in Florence,
Arizona (on February 7, 1996). On May 6, 1997, Kephart
filed his petition for post-conviction relief in Oregon state
court, and shortly thereafter, on July 14, 1997, Kephart was
returned to an Oregon prison. Kephart’s petition for state
post-conviction relief was denied on July 17, 1997. The Ore-
gon Court of Appeals affirmed this decision, and the Oregon
Supreme Court declined to review the case, a decision that
became final on October 23, 2000. Kephart then filed his fed-
eral habeas petition, the petition at issue in this appeal, on
May 14, 2001.
In both Roy and Kephart’s cases, the district court adopted
the suggestions of the magistrate judge, and eventually dis-
missed the habeas petitions as untimely. This court granted a
certificate of appealability on the issue of “whether the district
court properly denied appellant’s federal habeas corpus peti-
tion as untimely and denied equitable tolling without an evi-
dentiary hearing despite conflicting affidavits on a factual
issue.”
II
This court reviews de novo the district court’s refusal to
consider a petition for habeas corpus on grounds of tardiness.
Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir. 2001). The
decision by the district court to decline to order an evidentiary
11868 ROY v. LAMPERT
hearing is reviewed for abuse of discretion. Tapia v. Roe, 189
F.3d 1052, 1056 (9th Cir. 1999).
III
We first address whether the district court was correct to
consider Roy and Kephart’s federal petitions untimely, and
we conclude that it was correct that their petitions were
untimely.
[1] Pursuant to AEDPA, a prisoner may only file a federal
habeas petition within one year from the conclusion of state
direct review. 28 U.S.C. § 2244(d). This limitations period is
tolled while a state prisoner is exhausting his claims in state
court, Nino v. Galaza, 183 F.3d 1003, 1005 (9th Cir. 1999),
and when a prisoner is trying to pursue state post-conviction
remedies. Id. at 1006. However, the statute of limitations is
not tolled “from the time a final decision is issued on direct
state appeal [to] the time the first state collateral challenge is
filed.” Id. The statute of limitations period is also not tolled
after state post-conviction proceedings are final and before
federal habeas proceedings are initiated. See 28 U.S.C.
§ 2244(d)(2) (stating that the limitations period does not run
while “a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment
or claim is pending” (emphasis added)).
While the AEDPA statute of limitations was running in this
case between the end of state direct proceedings and state
post-conviction proceedings, as well as between the time of
the end of their state post-conviction appeals and the filing of
their federal habeas petition, only the former time period was
longer than the one-year statute of limitations established by
AEDPA. In other words, if the time period while Roy and
Kephart were in Arizona is equitably tolled, then Roy and
Kephart will not have exceeded AEDPA’s one-year statute of
limitations.
ROY v. LAMPERT 11869
[2] For both Roy and Kephart, the final dispositions of their
direct appeals occurred before the effective date of AEDPA,
and therefore they “were required to file any remaining fed-
eral petition for which they were otherwise eligible within one
year of AEDPA’s effective date, that is, by April 24, 1997.”
Laws v. LaMarque, 351 F.3d 919, 921 (9th Cir. 2003). Roy
filed his petition for state post-conviction relief on October
22, 1997, a full 551 days after April 24, 1996, well beyond the
one-year limitation mandated by AEDPA.
But for this time period, when Roy filed his federal habeas
petition, he would have been within the statute of limitations
period provided by AEDPA. Roy’s state post-conviction
appeal became final on January 3, 2001, and Roy filed his
federal habeas petition on June 11, 2001, meaning that if the
time between his state direct and post-conviction appeals had
been equitably tolled, only the time between the termination
of his state post conviction appeals and his federal habeas
petition would have counted, and the clock would have run
for only 159 days of the one-year statute of limitations pro-
vided by AEDPA.
The same is true of Kephart. Kephart’s direct appeal also
became final before the effective date of AEDPA, meaning
that he also was “required to file any remaining federal peti-
tion for which [he was] otherwise eligible within one year of
AEDPA’s effective date, that is, by April 24, 1997.” Id. at
921. Kephart filed his petition for state post-conviction relief
on May 6, 1997, twelve days after April 24, 1997, the latest
date he could have filed pursuant to AEDPA’s one-year stat-
ute of limitations. If that period of time had been equitably
tolled, Kephart also would have easily avoided AEDPA’s
one-year statute of limitations. Kephart’s state post-conviction
efforts became final on December 5, 2000, and on May 23,
2001, 169 days later and well within the one-year AEDPA
time frame, Kephart filed his federal habeas petition.
[3] For these reasons, it is clear that, unless the time period
when Roy and Kephart were in Arizona is equitably tolled,
11870 ROY v. LAMPERT
Roy and Kephart filed their federal habeas petitions after the
one-year statute of limitations provided by AEDPA. It is also
clear that, if this time period is equitably tolled, Roy and
Kephart filed their federal habeas petitions within the one-
year statute of limitations provided by AEDPA.
IV
[4] This court has recognized that the AEDPA statute of
limitations provisions violated by Roy and Kephart can be
subject to equitable tolling. See Calderon v. United States
Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997),
overruled on other grounds by Calderon v. United States Dist.
Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). Equita-
ble tolling is applicable only “if extraordinary circumstances
beyond a prisoner’s control make it impossible to file a peti-
tion on time.” Beeler, 128 F.3d at 1288 (internal quotation
marks omitted). These extraordinary circumstances must be
“the cause of [the] untimelieness.” Spitsyn v. Moore, 345 F.3d
796, 799 (9th Cir. 2003).
[5] A habeas petitioner like Roy or Kephart should receive
an evidentiary hearing when he makes “a good-faith allega-
tion that would, if true, entitle him to equitable tolling.” Laws
v. LaMarque, 351 F.3d 919, 919 (9th Cir. 2003) (emphasis
added). Roy and Kephart must demonstrate that they have
“been pursuing [their] rights diligently . . . [and] that some
extraordinary circumstance stood in [their] way.” Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005).
We therefore must first address whether Roy and Kephart
made sufficient allegations of diligence to be entitled to an
evidentiary hearing, and our precedents do not provide us
much guidance regarding what diligence might mean in the
AEDPA context.1 Because both Roy and Kephart filed their
1
This court has found equitable tolling potentially warranted in several
AEDPA cases, but has focused almost exclusively on whether the relevant
ROY v. LAMPERT 11871
habeas petitions pro se, allege specific efforts they pursued in
order to file habeas petitions, and because both filed their
claims within a reasonable period of time after they were
transferred back to the Oregon facility and the extraordinary
circumstances were removed, we find that Roy and Kephart
presented sufficient evidence of their diligence to warrant an
evidentiary hearing.
A
[6] As an initial matter, we consider it highly relevant that
Roy and Kephart were proceeding pro se until appointed
counsel by the district court. We must “construe pro se habeas
filings liberally.” Allen v. Calderon, 408 F.3d 1150, 1153 (9th
Cir. 2005); see also Belgarde v. State of Montana, 123 F.3d
1210, 1213 (9th Cir. 1997) (“We construe a pro se litigant’s
habeas petition with deference.”). Because Roy and Kephart
were proceeding pro se, we construe their allegations regard-
ing diligence liberally.
[7] It is clear that pro se status, on its own, is not enough
to warrant equitable tolling. See, e.g., Johnson v. United
States, 544 U.S. 295, 311 (2005) (“[W]e have never accepted
pro se representation alone or procedural ignorance as an
excuse for prolonged inattention when a statute’s clear policy
calls for promptness.”). But we also here reaffirm the clear
principle that, even though pro se status alone is not enough
to warrant equitable tolling, it informs and colors the lens
“extraordinary circumstances” were present rather than whether the habeas
petitioner had pursued their rights diligently. See Laws v. LaMarque, 351
F.3d 919, 919 (9th Cir. 2003); Spitsyn v. Moore, 345 F.3d 796 (9th Cir.
2003); Stillman v. LaMarque, 319 F.3d 1199 (9th Cir. 2003); Corjasso v.
Ayers, 278 F.3d 874 (9th Cir. 2002); Jorss v. Gomez, 311 F.3d 1189 (9th
Cir. 2001); Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000), Miles
v. Prunty, 187 F.3d 1104 (9th Cir. 1999); Calderon v. United States Dist.
Court (Beeler), 128 F.3d 1283 (9th Cir. 1997), overruled on other grounds
by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir.
1998) (en banc).
11872 ROY v. LAMPERT
through which we view the filings, and whether these filings
made sufficient allegations of diligence. See Balistreri v.
Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)
(“This court recognizes that it has a duty to ensure that pro se
litigators do not lose their right to a hearing on the merits of
their claim due to ignorance of technical procedural require-
ments.”).
B
Roy and Kephart made several allegations regarding their
efforts to pursue their appeals diligently. After beginning
efforts to file an appeal while in Arizona, Roy complained to
Sheila Reed, the State of Oregon Governor’s Advocate for
Public Safety and the Corrections Ombudsman, that the Ari-
zona facility did not have sufficient legal resources to enable
Roy to pursue his claims. Roy in fact met with Reed in Ari-
zona in person to complain about the law library.
[8] Roy also filed a federal lawsuit while in Arizona chal-
lenging the acceptability of the law library. It is true that, after
this case was transferred to the district court in Oregon, that
court dismissed Roy’s lawsuit for lack of prosecution. This
dismissal, though, does not make his filing of the lawsuit any
less relevant in proving diligence. We are examining whether
Roy had been diligent in his efforts to pursue his appeal at the
time his efforts were being thwarted, namely while he was at
the prison facility in Arizona. Cf. Spitsyn, 345 F.3d at 802
(“ ‘[T]he person seeking equitable tolling [must demonstrate]
reasonable diligence in attempting to file . . . after the extraor-
dinary circumstances began.” (emphasis added)).
Roy was transferred to the Arizona facility on February 7,
1996; he was transferred back to the Oregon facility on April
25, 1997. The judgment of the Oregon district court, though,
was issued on September 2, 1998, well after the relevant
period we are examining to see if Roy was diligent in pursu-
ing his appeal. Moreover, the judgment by the Oregon district
ROY v. LAMPERT 11873
court makes no reference to any specific time frame or actions
revealing Roy’s lack of diligence in pursuing his claims.
Indeed, that decision simply states that it was construing
Roy’s case as a 42 U.S.C. § 1983 case, rather than a habeas
case, and that therefore Roy had to provide an additional fee,
an application to proceed in forma pauperis, or dismiss that
case.
[9] At the time that decision was issued, Roy was already
safely back in Oregon, and therefore the entire reason why
Roy filed the lawsuit—to complain of his move to Arizona—
was obviated. It is unsurprising, and not particularly relevant,
then, that Roy (voluntarily) dismissed his lawsuit. His failure
to pursue the lawsuit further does not demonstrate a lack of
diligence in protesting the conditions in Arizona; it demon-
strates that the lawsuit was no longer necessary because Roy
was no longer in Arizona.
[10] Kephart also presented evidence of his efforts to file
his claim while in Arizona. One of the affidavits in this case
indicates that “Kephart was trying to file his state post convic-
tion” claim and thus was present in the law library trying to
do research. The fact that Kephart was able to discuss with
specificity what precisely was present in the Arizona library
also indicates he had visited the library at least on occasion.
Kephart stated that the Arizona library “consisted of only
three outdated legal books, which contained no information
about the AEDPA.”
[11] Since we have no cases on point from this circuit, we
look to cases from other circuits for guidance. See United
States v. Tobeler, 311 F.3d 1201, 1203 (9th Cir. 2002) (noting
the “persuasive [value of] authority from other circuits”). In
cases finding the absence of diligence in an equitable tolling
context from our sister circuits, habeas petitioners demon-
strated much less effort by the prisoners than Roy and
Kephart demonstrated in this case.
11874 ROY v. LAMPERT
In Helton v. Sec’y for the Dept. of Corrections, 259 F.3d
1310 (11th Cir. 2001), the court found that the prisoner had
not exercised reasonable diligence because he never asserted
that he “asked for the amendments to the federal habeas cor-
pus statutes,” id. at 1314, and was in fact not “even aware the
library did not have these materials at the time he filed his
section 2254 petition,” id. at 1313; see also id. at 1314
(“Helton fails to state any independent efforts he made to
determine whether the relevant limitations period began to
run.”) (emphasis added).
[12] In this case, by contrast, Kephart stated with specific-
ity that the Arizona library “consisted of only three outdated
legal books, which contained no information about AEDPA.”
Roy filed a federal lawsuit indicating that the Arizona library
did not have “an Oregon trained legal assistant and a current
adequate Oregon law library.”2
Likewise, in Miller v. Marr, 141 F.3d 976 (10th Cir. 1998),
the habeas petitioner’s statements about law library inadequa-
cies were less specific than those made here by Roy and
Kephart. Id. (“It is not enough to say that the Minnesota facil-
ity lacked all relevant statutes and case law or that the proce-
dure to request specific materials was inadequate.”); see also
id. at 978 (“In the final analysis, however, Mr. Miller has pro-
vided no specificity regarding the alleged lack of access and
the steps he took to diligently pursue his federal claims.”).
2
Of course, we do not hold that a federal Arizona prison facility must
employ an Oregon-trained legal assistant, nor do we hold that the lack of
such a legal assistant could alone satisfy the “extraordinary circumstance”
requirement for equitable tolling. Nevertheless, the fact that Roy timely
filed a lawsuit alleging deficiencies in the Arizona facility is evidence of
his diligence in trying to secure his rights. We leave for the district court
to consider, after an evidentiary hearing, whether any lack of personnel or
materials in the Arizona facility constituted a sufficiently “extraordinary
circumstance” such that Roy and Kephart could not timely file their peti-
tions.
ROY v. LAMPERT 11875
C
[13] In addition to the specific efforts Roy and Kephart
allege that they made to pursue their claims, we also consider
it important that Roy and Kephart pursued their claims within
a reasonable period of time before the external impediment3
—in this case, the transfer to Arizona—came into existence.
See LaCava v. Kyler, 398 F.3d 271, 277 (3rd Cir. 2005)
(“This obligation [to act diligently] does not pertain solely to
the filing of the federal habeas petition, rather it is an obliga-
tion that exists during the period appellant is exhausting state
court remedies as well.”).
In Miller, in a context similar to this case, one of our sister
circuits found that the habeas petitioner did not exercise rea-
sonable diligence because, in addition to the absence of spe-
cific references to his efforts, the habeas petitioner waited a
long time before filing his petition, in that case more than a
year before the extraordinary circumstance being argued as
the cause of equitable tolling was created. Miller, 141 F.3d at
978. Similarly, in LaCava, twenty-one months elapsed before
the circumstances that the prisoner argued created equitable
tolling arose. LaCava, 398 F.3d at 272.
[14] In this case, Roy’s direct appeal became final on Janu-
ary 30, 1996, and barely one week ensued before, on February
7, 1996, Roy was transferred to Arizona. Kephart’s direct
appeal became final on March 7, 1996, after he was trans-
3
We note that AEDPA itself provides that the statute of limitations
“shall run from the . . . date on which the impediment to filing an applica-
tion created by State action in violation of the Constitution or laws of the
United States is removed[.]” 28 U.S.C. § 2244(d)(1)(B). Because we
address the conditions of the Arizona prison library as a possible “impedi-
ment” as part of our equitable tolling argument, we need not address the
identical statutory tolling arguments. See Gatson v. Palmer, 417 F.3d
1030, 1035 (9th Cir. 2005) (“[T]he district court’s rejection of equitable
tolling . . . constitutes an implicit rejection of [the] impediment argu-
ment.”).
11876 ROY v. LAMPERT
ferred to Arizona on February 7, 1996.4 Thus, Roy had just
three months in which to file a state post-conviction petition
after his direct appeal became final and before he was trans-
ferred to Arizona, and Kephart had no time at all.5
D
[15] We decline to adopt the district court’s test and require
that Roy and Kephart “indicate . . . when [they] asked for
assistance none was provided . . . [and] provide the dates on
which [they] attempted to obtain information from the Ari-
zona facility.” The purpose of requiring habeas petitioners to
demonstrate diligence in order to be entitled to an evidentiary
hearing regarding equitable tolling is to ensure that the
extraordinary circumstances faced by petitioners like Roy and
Kephart—and not their lack of diligence—were the cause of
4
The evidence supporting Roy and Kephart’s diligence is not affected
if we measure their diligence based not on when their direct appeals
became final but rather based on when the final decisions or dispositions
of a court occurred. Roy’s final effort at direct appeal was denied by the
Oregon Supreme Court on August 23, 1995, approximately five months
before he was transferred to Arizona, and Kephart’s last judicial decision
regarding his direct appeal was on October 11, 1995, less than four months
before he was transferred to Arizona.
5
In Pace v. DiGuglielmo, 544 U.S. 408 (2005), the Supreme Court
decided that a habeas petitioner was not entitled to equitable tolling
because “not only did petitioner sit on his rights for years before he filed
his [state post-conviction] petition, but he also sat on them for five more
months after his [state post-conviction] proceedings became final before
deciding to seek relief in federal court.” Id. at 419 (emphasis and boldface
added). It is true that, in this case, after their state post-conviction appeals
were final and before they filed their federal habeas petitions, Roy waited
about six months and Kephart around five months. However, the Supreme
Court refused to recognize an equitable tolling claim in Pace not just
because of the delay between the state post-conviction and federal habeas
stages, but also because of the earlier, more egregious delays. Id.
(“[P]etitioner waited years, without any valid justification, to assert these
claims in his [post-conviction petition]. Had petitioner advanced his
claims within a reasonable time of their availability, he would not now be
facing any time problem.”) (footnote omitted).
ROY v. LAMPERT 11877
the tardiness of their federal habeas petitions. Spitsyn v.
Moore, 345 F.3d 796, 802 (9th Cir. 2003) (“ ‘[I]f the person
seeking equitable tolling has not exercised reasonable dili-
gence in attempting to file, after the extraordinary circum-
stances began, the link of causation between the extraordinary
circumstances and the failure to file is broken.’ ” (quoting
Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000))).
[16] Since this is the reason for showing diligence, then
habeas petitioners should not have to allege specific dates and
times of library visits. Of course, the district court is correct
that specific dates may be highly probative when petitioners
attempt to show that they acted diligently in securing their
rights. However, if the petitioners can allege facts showing
that extraordinary circumstances—and not a lack of diligence
—caused the failure to file, there is no need to require specific
dates before holding an evidentiary hearing.
[17] By alleging what they did to pursue their claims and
complain about their situations, and alleging that they did so
before AEDPA’s statute of limitations expired, Roy and
Kephart have done enough to demonstrate that they were not
the cause of their tardiness, and that they would have filed on
time but for their transfer to Arizona. This is particularly so
because we have earlier decided in the AEDPA equitable toll-
ing context that “[o]ne event may have multiple causes. If
[petitioner’s] late filing was caused both by . . . [circum-
stances other than petitioner’s lack of diligence] and by prison
officials’ misconduct, [petitioner] still is entitled to equitable
tolling, since prison officials’ misconduct proximately caused
the late filing.” Stillman v. Lamarque, 319 F.3d 1199, 1203
(9th Cir. 2003).
IV
A
[18] Given that Roy and Kephart have made sufficient alle-
gations regarding their diligence to entitle them to an eviden-
11878 ROY v. LAMPERT
tiary hearing, they must next demonstrate that “extraordinary
circumstances beyond [their] control make it impossible to
file a petition on time.” Beeler, 128 F.3d at 1288. Whether
Roy and Kephart have demonstrated extraordinary circum-
stances is clearly governed by a decision from this court
directly on point, Whalem/Hunt v. Early, 233 F.3d at 1148,
which compels a finding that Roy and Kephart made suffi-
cient allegations of extraordinary circumstances.
[19] In Whalem/Hunt, the en banc court remanded to the
district court for an evidentiary hearing related to an equitable
tolling argument for two primary reasons, both of which apply
in this case. First of all, “the law library of the prison in which
[the prisoner] is incarcerated did not have legal materials
describing AEDPA until June 1998.” Id. at 1147. The absence
of AEDPA in the law library, when combined with the second
relevant fact that the prisoner in Whalem/Hunt “had no
knowledge of any limitations period,” id., led to the decision
by the en banc court to remand for an evidentiary hearing.
[20] In this case, Roy and Kephart made similar “allega-
tion[s] that would, if true, entitle [them] to equitable tolling.”
Laws, 351 F.3d at 919. First, both alleged that the Arizona
library did not have the requisite AEDPA materials. Roy
stated that at the prison facility in Arizona “there was no law
library available” and therefore he did not have access to
AEDPA. Kephart stated that the Arizona “library . . . con-
tained no information about the AEDPA.”
In Whalem/Hunt, besides the issue of AEDPA availability,
the court considered it important for the “extraordinary cir-
cumstances” determination that the prisoner stated that he
“had no knowledge of any limitations period prior to Decem-
ber 1998.” Whalem/Hunt, 233 F.3d at 1147 (internal quotation
marks omitted). In this case, Roy indicated that similarly he
was “not made aware of . . . the AEDPA.” Likewise, Kephart
asserted that he had had “no . . . notice of the AEDPA” either
from the prison library or from any other source, and that he
ROY v. LAMPERT 11879
“was not able to gain knowledge of the one year limitation
period for filing under [AEDPA]” until after he had filed his
state post-conviction petition and had been returned to Ore-
gon.
In addition to the two AEDPA-related reasons the Whalem/
Hunt court remanded for an evidentiary hearing there are also
other reasons present in Whalem/Hunt that suggest that Roy
and Kephart may have faced extraordinary circumstances.
While there was no evidence in Whalem/Hunt about the gen-
eral condition of the library beyond the availability of
AEDPA materials, in this case there was evidence suggesting
that the problems related to AEDPA materials were part of a
series of problems with the Arizona law library.6 Kephart tes-
tified that he “had no access to current Oregon or federal law.
The CCA library consisted of only three outdated legal books,
which contained no information about the AEDPA . . . . At
no time during my imprisonment was there information pro-
vided . . . explaining any procedure to obtain legal informa-
tion relevant to Oregon prisoners.”
Other affidavits also suggest that Roy and Kephart did not
have access to much of a law library in Arizona. Douglas
Phaneuf, an inmate working as a law librarian in Arizona,
stated that “there was no Oregon case law.” Phaneuf also
stated that while “[i]t is possible that [correspondence with
lawyer] assistance was available . . . I was not aware of it.”
Thomas J. Jensen, another inmate working as a librarian at the
Arizona prison facility, stated that he did “not recall there
being any meaningful federal material in the Florence library
even after it had become established and obtained some
books.”
6
Of course, in order to assess whether Roy and Kephart have stated a
claim for an evidentiary hearing, we must consider their “good-faith alle-
gation[s that] would, if true, entitle [them] to equitable tolling.” Laws, 351
F.3d at 919 (emphasis added). We recognize that there is a dispute about
the condition of the Arizona prison law library, which is why we believe
the district court should have ordered an evidentiary hearing.
11880 ROY v. LAMPERT
B
While this evidence might suggest that this court could
simply find (on its own and without a remand) that Roy and
Kephart were entitled to equitable tolling, and that an eviden-
tiary hearing is not necessary, we decline to follow that course
of action. There remain significant conflicts among the affida-
vits on material issues, and “[i]n a habeas case, when there
are only conflicting affidavits regarding the facts underlying
the issue of cause, the district court must hold an evidentiary
hearing.” Buffalo v. Sunn, 854 F.2d 1159, 1165 (9th Cir.
1988); see also id. (“A district court conducting federal
habeas review should not ordinarily attempt to resolve con-
tested issues of fact based on affidavits alone unless there is
other evidence in the record dispositive of the issue or unless
the state court has made the relevant factual findings.”).
For instance, regarding the question of the availability of
AEDPA in the Arizona prison law library, there were conflict-
ing statements. Kephart stated that in Arizona there were “no
legal materials which described the AEDPA, and no other
notice of the AEDPA.” Phaneuf stated that he did “not know
if there was in fact federal material.” Jensen stated that there
were never “any meaningful federal materials in the Florence
library.” By contrast, Martinez, also a prison law-library
clerk, stated that AEDPA had “probably arrived” in 1996.
Martinez also testified that information about the AEDPA
statute of limitations had been posted, and the Federal Public
Defenders had provided prisoners with that information as
well. A representative from West Publishing indicated that the
relevant portions of AEDPA were in fact sent to the Arizona
prison facility.
There is also much in dispute regarding other aspects of the
Arizona prison law library. While Trent Axen, the Library
Coordinator at the Oregon State Penitentiary, testified about
an elaborate series of materials available at the library in Ari-
zona, and about a correspondence system permitting prisoners
ROY v. LAMPERT 11881
to request materials not in Arizona, the affidavits submitted
by the inmates in Arizona disagree with this on almost every
level.7
V
[21] Because we find that Roy and Kephart have made suf-
ficient allegations regarding their diligence and the extraordi-
nary circumstances they faced while at the Arizona prison, we
remand to the district court for an evidentiary hearing on their
equitable tolling claim.
PETITION GRANTED AND REMANDED.
7
Because we recognize that there are many conflicts among many of the
affidavits on many issues, we need not address Roy and Kephart’s claims
that we should disallow some of the affidavits because they are not based
on personal knowledge, pursuant to Federal Rule of Evidence 602. We
need not decide which specific affidavits satisfy that Rule’s requirements
because we decide that there are so many conflicts that the district court
should order an evidentiary hearing to gather new evidence and further
assess the comments made in the affidavits.