Danny Valdez v. v. M. Almager

MEMORANDUM

Danny Valdez appeals the district court’s judgment dismissing his habeas petition as untimely. We vacate and remand.

1. The district court denied statutory tolling for the 82-day interval between the California Court of Appeal’s denial of Valdez’s second habeas petition and Valdez’s filing of his third petition in the California Supreme Court because Valdez “offer[ed] no justification for the delay.” In his objections to the magistrate judge’s report and recommendation, however, Valdez, proceeding pro se, offered an explanation for the delay, arguing that he did not have access to trial transcripts and other legal materials. See Brown v. Roe, 279 F.3d 742, 745-46 (9th Cir.2002) (holding that the district court abused its discretion by failing to consider a pro se petitioner’s tolling argument, even though it was raised for the first time in objections to the magistrate judge’s report and recommendation). Valdez’s explanation may have merit and should be addressed by the district court on remand. As the district court has already noted, there is, even in the existing record, evidence that Valdez diligently sought the transcripts. See Report & Recommendation Sept. 26,…