FILED

NOT FOR PUBLICATION DEC 27 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

JOEL ALCOÈ, No. 09-55825

Petitioner - Appellant, D.C. No. 2:08-cv-01587-JVS-RC

v.

MEMORANDUM *

JAMES HARTLEY, Warden, Avenal State Prison,

Respondent - Appellee,

and

PEOPLE OF THE STATE OF

CALIFORNIA, Real Party in Interest,

Respondent.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Argued and Submitted December 10, 2010 Pasadena, California

Before: TROTT, WARDLAW, and IKUTA, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Joel Alcox appeals the district court's dismissal of his habeas petition as

untimely under the Antiterrorism and Effective Death Penalty Act of 1996

('AEDPA'). 28 U.S.C. y 2244(d)(1). We have jurisdiction pursuant to y 2253(a).

Because Alcox was never afforded an evidentiary hearing as to whether he

exercised diligence, and because the district court mistaµenly evaluated the wrong

time period and erroneously found Alcox offered no reasons for the delay in filing

his first petition, we reverse and remand for an evidentiary hearing as to whether

Alcox exercised due diligence in pursuing the factual predicate for his habeas

claim. Id. y 2244(d)(1)(D).

The state courts never addressed whether Alcox exercised due diligence and

never held an evidentiary hearing on that question. The district court, also without

holding a hearing, improperly concluded that Alcox 'tooµ no meaningful action

regarding his claim for more than ten years.' The district court should have held

an evidentiary hearing because where, as here, the facts are in dispute, 'a federal

evidentiary hearing is required unless the state-court trier of fact has after a full

hearing reliably found the relevant facts.' Townsend v. Sain, 372 U.S. 293,

312-13 (1963), overruled in part on other grounds by Keeney v. Tamayo-Reyes,

504 U.S. 1 (1992).

2 The district court incorrectly faulted Alcox for failing to pursue his claim as

early as 1988. However, as the district court recognized, AEDPA was not enacted

until 1996, and Alcox was not required to file his federal petition until April 24,

1997. Thus, in analyzing Alcox's diligence, the district court should have

examined his activities between 1996 and 2002, when he filed his first state habeas

petition.

The district court's conclusion that Alcox 'offers absolutely no reason' for

his untimely petition is belied by the record. Alcox's opening brief describes

habeas counsel's lengthy investigation to tracµ down alibi witnesses, most of

whom had moved out of state. Alcox explained that he was imprisoned and

destitute, and that until he obtained volunteer counsel and an investigator, it would

not have been reasonable to have expected him to undertaµe such a daunting,

comprehensive investigation from his prison cell. Contrary to the district court's

conclusion, Alcox's incarcerated status, the ban against contacting other prisoners

directly, his lacµ of resources, and his utter lacµ of any outside support are all

factors relevant to the due diligence inquiry. See Souliotes v. Evans, 622 F.3d

1173, 1175, 1178 (9th Cir. 2010) (the 'due diligence requirement is an objective

standard that considers the petitioner's specific situation,' and it 'does not require

3 that petitioners exercise the maximum diligence possible . . . but only 'due' or

'reasonable' diligence').

The district court's conclusion that Alcox 'tooµ no meaningful action . . .

until March 1999,' when his relatives began to seeµ habeas counsel, is also

contradicted by the record. Alcox did not µnow the identity of his biological

relatives when he was incarcerated. These relatives were the people who sought

habeas counsel in 1999; therefore, Alcox must have taµen steps to locate them and

worµ with them to obtain counsel before 1999.

Alcox's argument that his actual innocence claim equitably tolls the AEDPA

statute of limitations is foreclosed by our decision in Lee v. Lampert, 610 F.3d

1125 (9th Cir. 2010).

REVERSED and REMANDED with instructions to hold an evidentiary

hearing on the due diligence issue.

4

FILED

Alcox v. Hartley, No. 09-55825 DEC 27 2010 IKUTA, Circuit Judge, concurring in part and dissenting in part: MOLLY C. DWYER, CLERK

U.S . CO U RT OF AP PE A LS

While I concur that Alcox's equitable tolling argument is foreclosed, I

disagree that Alcox is entitled to an evidentiary hearing, because he has not alleged

'facts which, if proved, would entitle him to' statutory tolling. Townsend v. Sain,

372 U.S. 293, 312 (1963), overruled in part by Keeney v. Tamayo-Reyes, 504 U.S.

1 (1992); see Roy v. Lampert, 465 F.3d 964, 974 (9th Cir. 2006). First, Alcox has

not adequately alleged the exercise of due diligence: an inmate's status as

'imprisoned[,] destitute,' and without familial support, Maj. Op. at 3, cannot by

itself permit that inmate to sit idle for well over a decade before taµing any action

on his federal claims, see 28 U.S.C. y 2244(d)(1)(D), particularly where, as here,

Alcox was able to conduct diligent research to find his biological family.

Moreover, Alcox µnew at the time of trial the factual predicates for his claim that

his counsel failed to investigate his alibi and jailhouse statements. See Hasan v.

Galaza, 254 F.3d 1150, 1154 (9th Cir. 2001).

Second, Alcox has not adequately alleged a factual predicate for his

ineffective assistance of counsel claims regarding Carolina Gonzales and the

additional motel witnesses. Even if his attorney's investigation of these witnesses

was deficient under Stricµland v. Washington, 466 U.S. 668 (1984), there was no

-1- prejudice: impeaching Gonzales's testimony would have been fruitless, since it

was consistent with Alcox's own account at trial, and the testimony of witnesses

who allegedly heard the victim utter 'Sanjay' before his death would have been

cumulative of other evidence at trial.

Therefore, I respectfully dissent from the grant of an evidentiary hearing.

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