Lopes

MEMORANDUM **

John Lopes (“Lopes”) appeals from the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition. We reverse and remand for further development of the record. Because the parties are familiar with the factual and procedural history of this case, we will not recount it here.

The district court held that Lopes was not entitled to equitable tolling during the period that his administrative appeal was pending, but did not hold an evidentiary hearing to determine the exact circumstances of Lopes’ case. The Antiterrorism and Effective Death Penalty Act’s (“AED-PA”) statute of limitations provision is subject to equitable tolling. Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.), cert. denied, — U.S. -, 123 S.Ct. 496 , 154 L.Ed.2d 399 (2002). For a petitioner to receive the benefit of equitable tolling, he must prove that there were extraordinary circumstances beyond his control that made it impossible to file a petition on time. Lott v. Mueller, 304 F.3d 918, 922 (9th Cir.2002). If a petitioner fails to exercise due diligence the limitations period will not be equitably tolled. Miles v. Prunty, 187 F.3d 1104, 1107 (9th Cir.1999). The grounds for determining…