United States v. Adrian Fuentes-Garcia

MEMORANDUM

Fuentes-Garcia appeals the district court’s dismissal of his pro se 28 U.S.C. § 2255 motion to vacate his sentence. He admits that he filed his motion outside the one-year limitations period, see 28 U.S.C. § 2255 (f), but argues that the district court erred in dismissing the motion as untimely without first holding an evidentiary hearing to determine whether he is entitled to equitable tolling. We have jurisdiction pursuant to 28 U.S.C. § 2253 , United States v. Battles, 362 F.3d 1195, 1196 (9th Cir.2004), and we vacate the dismissal and remand for further factual development.

“Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 , 125 S.Ct. 1807 , 161 L.Ed.2d 669 (2005). He must also show a “causal link” between the extraordinary circumstances and the untimeliness of the § 2255 motion. United States v. Buckles, 647 F.3d 883, 890 (9th Cir.2011). A petitioner is entitled to an evidentiary hearing if he makes “a good-faith allegation that would, if true, entitle him to…