Jaw-Shi Wang v. Roe

70 F. App'x 965

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 30, 2003
• Docket: No. 02-55593; D.C. No. CV-01-08311-DT
• Status: Published

Opinion

MEMORANDUM

**

Jaw-Shi Wang appeals the district court’s dismissal of his 28 U.S.C. § 2254 petition as untimely. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we reverse and remand.

Wang contends that he is entitled to equitable tolling based on his counsel’s failure to warn him about the AEDPA statute of limitations. This does not warrant equitable tolling. Miranda v. Castro, 292 F.3d 1063, 1066-67 (9th Cir.2002) (stating petitioner has no right to the assistance of counsel for post-conviction proceedings), cert. denied, 537 U.S. 1003, 123 S.Ct. 496, 154 L.Ed.2d 399 (2002).

Wang also contends that he is entitled to equitable tolling based on lack of library access. We conclude that the district court erred by dismissing the petition without first allowing Wang the opportunity to expand his declaration to refute the government’s declarations or conducting an evidentiary hearing. Whalem/Hunt v. Early, 233 F.3d 1146, 1148-49 (9th Cir. 2000) (en banc); see also Herbst v. Cook, 260 F.3d 1039, 1043 n. 4 (9th Cir.2001) (stating that an allegation that a prisoner did not have access to legal materials describing or setting forth the provisions of AEDPA may require development of the record under Whalem/Hunt ).***

Accordingly, we remand for the factual development described in Whalem/Hunt, 233 F.3d at 1148-49.

REVERSED and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

We do not reach issues raised in Wang's petition that were not certified for appeal. Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir.1999) (per curiam).