Peter Munoz, Jr. v. Gregory Smith

ORDER

The memorandum disposition filed in this case on April 17, 2013 is withdrawn and replaced by the memorandum disposition filed concurrently with this Order.

Appellant’s petition for rehearing and rehearing en banc filed on May 1, 2013 is DENIED as moot. Subsequent petitions for rehearing or rehearing en banc respecting the new memorandum disposition may be filed in accordance with Fed. R.App. P. 35.

MEMORANDUM

“The dismissal of a petition for writ of habeas corpus as time-barred is reviewed de novo.” Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir.2003). While “findings of fact made by the district court are to be reviewed for clear error,” when, as here, “the facts underlying [the] claim for equitable tolling are undisputed, the question of whether the statute of limitations should be equitably tolled is also reviewed de novo.” Id. Further, a “decision by the district court to decline to order an eviden-tiary hearing is reviewed for abuse of discretion.” Roy v. Lampert, 465 F.3d 964, 968 (9th Cir.2006).

A habeas petitioner is entitled to equitable tolling of AEDPA’s one-year statute of limitations if he shows: “(1) that he has been pursuing his rights diligently, and (2)…