Giovanni Valerio v. Anthony Scillia

MEMORANDUM

Nevada state prisoner Giovanni Valerio appeals the district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely under the Antiterrorism and Effective Death Penalty Act (“AEDPA”). We have jurisdiction under 28 U.S.C. § 2253 and 28 U.S.C. § 1291 , and we vacate the district court’s order dismissing the petition as time-barred and remand for an evidentiary hearing to determine whether Valerio is entitled to equitable tolling of the one-year limitations period.

A petitioner may be entitled to equitable tolling if he can demonstrate “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631 , 130 S.Ct. 2549, 2562 , 177 L.Ed.2d 130 (2010) (internal quotations marks and citation omitted). “Under long established principles, [a] petitioner’s lack of diligence precludes equity’s operation.” Pace v. DiGuglielmo, 544 U.S. 408, 418 , 125 S.Ct. 1807 , 161 L.Ed.2d 669 (2005).

On the basis of the existing record we are unable to determine whether, from the date that Valerio learned that his trial counsel had not filed a direct appeal,…