Cruz A. Ibarra v. L. S. MCEWEN, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRUZ A. IBARRA,
Petitioner - Appellant,
v.
L. S. MCEWEN, Warden,
Respondent - Appellee.
No. 12-55925
D.C. No. 5:11-cv-01452-GAF
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Submitted April 16, 2014 **
Before: GOULD, BERZON, and BEA, Circuit Judges.
California state prisoner Cruz A. Ibarra appeals from the district court’s
judgment dismissing his 28 U.S.C. § 2254 habeas corpus petition as untimely. We
have jurisdiction under 28 U.S.C. § 2253. We reverse and remand for an
evidentiary hearing on whether Ibarra is entitled to equitable tolling.
FILED
APR 21 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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We review de novo the district court’s dismissal of a habeas corpus petition
as time-barred. Espinoza-Matthews v. California, 432 F.3d 1021, 1025 (9th Cir.
2005). If the underlying facts are undisputed, we review de novo whether the
statute of limitations under the Antiterrorism and Effective Death Penalty Act
should be equitably tolled. Id.
Ibarra is potentially entitled to equitable tolling on the basis of the delayed
certification of his in forma pauperis status and the law library’s extended closure,
because these could constitute extraordinary circumstances that prevented Ibarra
from filing a timely section 2254 habeas petition. See Holland v. Florida, 560 U.S.
631, 130 S. Ct. 2549, 2562 (2010). Ibarra has not had the opportunity to develop
the factual basis of this claim. Whether the aforementioned circumstances
constitute grounds for equitable tolling is a “highly fact-dependent” inquiry,
Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc), that
depends on whether the amount of time it took the prison to return his in forma
pauperis certification was extraordinary, whether it was extraordinary for the
prison to close for five days over the Labor Day holiday, and whether Ibarra would
have completed and filed his federal petition in a timely manner absent these
obstacles. If Ibarra shows that these were extraordinary circumstances, he will be
entitled to equitable tolling of at least thirteen days, rendering his federal habeas
12-55925 2

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petition timely. We therefore reverse the district court’s judgment dismissing
Ibarra’s petition and remand for factual development of Ibarra’s equitable tolling
claims. See Roy v. Lampert, 465 F.3d 964, 969 (9th Cir. 2006). On remand, the
district court should also allow the parties to introduce evidence as to whether
Ibarra diligently pursued his claims during the 352 days before he filed his state
court post-conviction petition, to shed light on Ibarra’s diligence in bringing his
case before the district court.
REVERSED and REMANDED.
12-55925 3

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