Mendoza v. Carey

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARLOS MENDOZA,  No. 04-56733

Petitioner-Appellant,

v.  D.C. No.

CV 04-02632 CJC

TOM L. CAREY, Warden,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Central District of California

Cormac J. Carney, District Judge, Presiding

Argued and Submitted

October 17, 2005—Pasadena, California

Filed June 7, 2006

Before: Andrew J. Kleinfeld, A. Wallace Tashima, and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Tashima;

Dissent by Judge Kleinfeld

6233

6236 MENDOZA v. CAREY

COUNSEL

Stephen M. Lathrop, Rolling Hills Estates, California, for the

petitioner-appellant.

Keith H. Borjon, Deputy Attorney General, Los Angeles, Cal-

ifornia, for the respondent-appellee.

OPINION

TASHIMA, Circuit Judge:

Carlos Mendoza, a California state prisoner, appeals from

the judgment of the district court, which dismissed as

untimely his petition for writ of habeas corpus. Under the

Anti-Terrorism and Effective Death Penalty Act of 1996

MENDOZA v. CAREY 6237

(“AEDPA”), habeas petitions must be filed within one year

from the date when the petitioner’s judgment of conviction

became final. 28 U.S.C. § 2244(d). Mendoza, who is a Span-

ish speaker, argued that he should qualify for equitable tolling

of the one-year limitations period because the prison law

library failed to provide Spanish-language books or Spanish-

speaking clerks or librarians to assist Spanish-speaking

inmates.1 The magistrate judge concluded that the absence of

Spanish-language materials from Mendoza’s prison library

did not amount to an extraordinary circumstance for purposes

of the equitable tolling analysis. The district court adopted the

magistrate judge’s report and recommendation; accordingly,

it dismissed Mendoza’s petition as untimely. On appeal, Men-

doza contends that he is entitled to equitable tolling because

the lack of Spanish-language assistance was an extraordinary

circumstance beyond his control that made it impossible to

file a timely petition. Further, he contends that the district

court erred in failing to hold an evidentiary hearing on the

issue of whether equitable tolling was appropriate.

We have jurisdiction under 28 U.S.C. § 2253. We agree

that an evidentiary hearing is required because Mendoza has

alleged facts which, if true, could entitle him to equitable toll-

ing. We therefore reverse and remand to the district court for

development of the factual record.

1

The dissent states that Mendoza “does not claim that he can read Span-

ish.” Dissent at 6246. It is true that Mendoza does not make an outright,

flat statement that he can read Spanish, but that fact is easily and reason-

ably inferred from the statements he does make. For example, Mendoza

states in his declaration that “if I had ever seen any notice in the Depart-

ment of Corrections that I had only one year to challenge my sentence I

would have done so, especially if such notice was written in Spanish.”

(Emphasis added.) Inferring from these statements a conclusion other than

that Mendoza can read Spanish defies common sense. While we agree

with the dissent that the ability to read a foreign language “is not transmit-

ted through the blood,” dissent at 6246 n.2, Mendoza requested Spanish-

language books at two prisons, acts that are inexplicable unless Mendoza

is able to read Spanish.

6238 MENDOZA v. CAREY

Factual and Procedural Background

Mendoza is currently serving a 14-year sentence after

pleading no contest to a charge of assault with a firearm.

Mendoza did not appeal; therefore, his conviction became

final on August 21, 2001, 60 days after the judgment of con-

viction. He filed his first petition for writ of habeas corpus in

the Superior Court of California on May 14, 2003.2 He subse-

quently filed a second habeas petition in the Superior Court,

a petition in the California Court of Appeal, and two petitions

in the California Supreme Court. All of these petitions were

denied, with the final denial from the California Supreme

Court occurring on March 17, 2004. Mendoza then filed his

federal habeas petition on April 3, 2004. On April 26, 2004,

the district court issued an order requiring petitioner to show

cause why the petition should not be dismissed as untimely.

It noted that the AEDPA’s limitations period expired on

August 21, 2002, one year after Mendoza’s conviction

became final, and that absent equitable or statutory tolling, his

petition was time-barred. According to the district court, Men-

doza had not “provided any explanation for the lengthy delay

in filing,” other than the allegation that he had been “hindered

because he speaks Spanish and the prison does not provide

Spanish language law books.”

Mendoza responded to the order to show cause on May 24,

2004, stating that the prison law library possessed no Spanish

books, no Spanish-English legal dictionaries, and no postings

about the AEDPA time limitations in any language. In a dec-

laration filed in support of his response, Mendoza stated that

during his first three months of incarceration, he was held at

the Reception Center, where there were no Spanish-language

books and where he was told that he “would have to wait until

[he] got to [his] regular assigned prison.” When he arrived at

Solano State Prison, Mendoza found no Spanish language

2

At the time Mendoza filed his first state habeas petition, the AEDPA

limitations period had already expired.

MENDOZA v. CAREY 6239

books or forms, and returned to the library “several times” but

found only English-language books and English-speaking

clerks and librarians. He further stated that he became “very

discouraged” due to this inability to obtain information in

Spanish. He “finally engaged in conversations with people on

the prison yard” and found a recently-arrived inmate named

Antonio who, for a fee, assisted Mendoza in filing a petition

for writ of habeas corpus in the California Superior Court.

Later, another inmate, Antolin Andrews, prepared and filed

petitions on Mendoza’s behalf in the California Court of

Appeal, the California Supreme Court, and finally, the district

court. Mendoza further asserted in his declaration that he

would have challenged his sentence within a year if he had

seen any notice in the prison alerting him to the one-year limi-

tations period.

In addition to his own declaration, Mendoza filed 47 identi-

cal, form declarations, each signed by a Spanish-speaking

inmate. Each declaration stated that the inmate had been to

the legal library at the prison; had found no Spanish books

that could assist the inmate in pursuing court action; and that

the librarians and legal clerks did not speak Spanish. Antolin

Andrews, the inmate who assisted Mendoza with his petitions,

also filed a declaration asserting that in his experience with

many California state prisons, he had never seen any Spanish

books in the prison law libraries.

After reviewing this response to the order to show cause,

the magistrate judge recommended that Mendoza’s habeas

petition be dismissed as untimely. The magistrate judge first

found that statutory tolling was not applicable in this case

because statutory tolling extends the filing deadline only dur-

ing the time in which a “properly filed state habeas petition

[is] pending,” and Mendoza did not file any state habeas peti-

tions until after the federal filing deadline had passed. On the

issue of equitable tolling, the magistrate judge found that

Mendoza’s “general lack of legal knowledge, indigenc[e], and

limited English skills are not external factors or extraordinary

6240 MENDOZA v. CAREY

circumstances beyond his control that made it impossible for

him to file a timely petition.”

The district court adopted the report and recommendation

of the magistrate judge, and dismissed the habeas petition as

untimely. Mendoza appealed, and the district court declined

to issue a Certificate of Appealability (“COA”). We granted

a COA on the following issues: (1) whether Mendoza is enti-

tled to equitable tolling based on his inability to comprehend

English and the lack of Spanish-language materials in the

library; and (2) whether the district court erred in failing to

hold an evidentiary hearing on the issue.

Standard of Review

A district court’s denial of a petition for writ of habeas cor-

pus is reviewed de novo, and denial of an evidentiary hearing

is reviewed for abuse of discretion. United States v. Sandoval-

Lopez, 409 F.3d 1193, 1195 (9th Cir. 2005) (citing United

States v. Rodrigues, 347 F.3d 818, 823 (9th Cir. 2003)). Find-

ings of fact made by the district court are reviewed for clear

error. Moran v. McDaniel, 80 F.3d 1261, 1268 (9th Cir.

1996).

Discussion

[1] “[A] litigant seeking equitable tolling [of the one-year

AEDPA limitations period] bears the burden of establishing

two elements: (1) that he has been pursuing his rights dili-

gently, and (2) that some extraordinary circumstance stood in

his way.” Pace v. DiGuglielmo, 125 S. Ct. 1807, 1814 (2005).

“[T]he threshold necessary to trigger equitable tolling under

[the] AEDPA is very high, lest the exceptions swallow the

rule.” Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)

(internal quotation marks and citation omitted). This high bar

is necessary to effectuate the “AEDPA’s statutory purpose of

encouraging prompt filings in federal court in order to protect

the federal system from being forced to hear stale claims.”

MENDOZA v. CAREY 6241

Guillory v. Roe, 329 F.3d 1015, 1018 (9th Cir. 2003) (internal

quotation marks and citation omitted). Equitable tolling deter-

minations are “highly fact-dependent.” Whalem/Hunt v.

Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) (per

curiam). Accord Lott v. Mueller, 304 F.3d 918, 923 (9th Cir.

2002) (observing that equitable tolling determinations “turn[ ]

on an examination of detailed facts”).

[2] Whether a habeas petitioner’s inability to obtain

Spanish-language materials or procure translation assistance

can be grounds for equitable tolling of the AEDPA’s one-year

limitations period is a question of first impression in this Cir-

cuit. In Whalem/Hunt, 233 F.3d at 1148, we held that the

unavailability of a copy of the AEDPA in a prison law library

could, but did not necessarily, constitute grounds for equitable

tolling.3 We remanded the case to the district court for appro-

priate development of the record. Id. So long as there are

some circumstances “consistent with petitioner’s petition and

declaration” that would entitle the petitioner to equitable toll-

ing, remand is appropriate. Id.; see also Laws v. Lamarque,

351 F.3d 919, 921 (9th Cir. 2003) (holding that “[b]ecause

[petitioner] . . . made a good-faith allegation that would, if

true, entitle him to equitable tolling,” the claim should be

remanded to the district court for further factual development

of petitioner’s claim that he was mentally incompetent during

the limitations period).

[3] While Whalem/Hunt does not directly control the facts

of this case, we find its reasoning instructive. In Whalem/

Hunt, the state’s failure to provide access to the text of the

AEDPA constituted possible grounds for equitable tolling

3

In Whalem/Hunt we concluded that the unavailability of a copy of the

AEDPA also could be grounds for statutory tolling under the “state-

created impediment” provision, see 28 U.S.C. § 2244(d)(1)(B), and

remanded for further factual development of both that claim and the equi-

table tolling claim. See 233 F.3d at 1148. The COA in this case, however,

included only the equitable tolling issue. Therefore, this opinion addresses

the need for an evidentiary hearing in the context of that claim only.

6242 MENDOZA v. CAREY

because, according to the petitioner’s allegations, the absence

of a copy of the AEDPA prevented him from learning about

the AEDPA’s one-year deadline and therefore prevented a

timely filing. See 233 F.3d at 1149 (Tashima, J., concurring).

We concluded that remand was the appropriate remedy

because the district court had provided the petitioner “no

opportunity to amend his petition or expand his declaration,”

and had failed to hold an evidentiary hearing. Id. at 1148.

[4] By analogy, Mendoza has alleged that lack of access to

Spanish-language legal materials prevented him from learning

about the AEDPA’s deadline and thereby prevented his timely

filing. According to his declaration, when Mendoza was first

incarcerated, he requested Spanish-language legal materials

but was told to “wait until [he] got to [his] regular assigned

prison.” After arriving at Solano State Prison, he made several

trips to the library but found only English-language books and

only English-speaking clerks and librarians. Not until Men-

doza found a newly-arrived, bilingual inmate willing to offer

assistance was he able to file his habeas petition; however, by

this time, the AEDPA deadline had already passed. We con-

clude that this combination of (1) a prison law library’s lack

of Spanish-language legal materials, and (2) a petitioner’s

inability to obtain translation assistance before the one-year

deadline, could constitute extraordinary circumstances.

[5] This holding comports with the decisions of other Cir-

cuits, which have rejected a per se rule that a petitioner’s lan-

guage limitations can justify equitable tolling, but have

recognized that equitable tolling may be justified if language

barriers actually prevent timely filing. In Cobas v. Burgess,

306 F.3d 441, 444 (6th Cir. 2002), the court held that a peti-

tioner’s “inability to speak, write and/or understand English,

in and of itself, does not automatically” justify equitable toll-

ing. The court emphasized that the “existence of a translator

who can read and write English and who assists a petitioner

during appellate proceedings” renders equitable tolling inap-

plicable for that petitioner. Id. Because Cobas had written a

MENDOZA v. CAREY 6243

detailed letter to his counsel in English and had otherwise

demonstrated his ability to either communicate in English or

communicate with a translator, the record in Cobas’ case “be-

lie[d] any claim that language difficulties prevented Cobas

from filing his petition in a timely manner.”4 Id.

[6] We find this reasoning persuasive, because it implicitly

identifies the category of non-English-speaking inmates

whose situations could constitute “extraordinary circum-

stances.” Although the petitioner was ultimately denied relief

in Cobas, the decision’s rationale left open the possibility that

a non-English speaker who could not find a willing translator

could qualify for equitable tolling. Following this reasoning,

we conclude that a non-English-speaking petitioner seeking

equitable tolling must, at a minimum, demonstrate that during

the running of the AEDPA time limitation, he was unable,

despite diligent efforts, to procure either legal materials in his

own language or translation assistance from an inmate, library

personnel, or other source.5 We agree with Cobas that a peti-

4

The dissent’s reliance on Cobas, dissent at 6250-51, is misplaced. In

Cobas, tolling was denied because the petitioner could communicate in

English. See Cobas, 306 F.3d at 444 (“As far back as 1993, Cobas wrote

a detailed letter to his appellate attorney in English in which he discussed

complex legal issues in detail.”). Here, in contrast and contrary to the dis-

sent’s insinuation, the record contains no indication that Mendoza could

communicate in English. The dissent further misreads Cobas when it

argues that “were Cobas the law of this circuit, a fortiori Mendoza would

lose on his tolling claim. . . .” Dissent at 6251. The dissent misses the dis-

tinction between a translator whose help is not obtained until after the run-

ning of AEDPA’s one-year time limit, as was the case here, and a

translator who is available during AEDPA’s one-year time period, as was

the case in Cobas. Cobas held that the existence of a translator who assists

the petitioner “during his appellate proceedings” negates a petitioner’s

claim that he had reasonable cause for remaining ignorant of AEDPA’s

requirements. 306 F.3d at 444. Cobas did not address the situation pres-

ented here in which the petitioner did not have any appellate assistance

and claims that he could not obtain the assistance of a translator until after

the time limitation had run.

5

Because we acknowledge the possibility, as Cobas recognized, that

inmates could use the services of translators not provided by the State, we

announce no rule affirmatively requiring that prisons provide legal materi-

als in Spanish.

6244 MENDOZA v. CAREY

tioner who demonstrates proficiency in English or who has

the assistance of a translator would be barred from equitable

relief. See id.; see also United States v. Sosa, 364 F.3d 507,

512-13 (4th Cir. 2004) (applying Cobas’ reasoning and con-

cluding that the petitioner’s “excellent” English skills and

ability to compose, without assistance, court filings in

English, foreclosed any contention that lack of English profi-

ciency justified equitable tolling).

[7] Our conclusion is completely consistent with the

Supreme Court’s recent decision addressing law library

access rights. Kane v. Garcia Espitia, 126 S. Ct. 407, 408

(2005) (per curiam), held that the denial of access to a law

library cannot provide a basis for a pro se petitioner’s habeas

relief because no Supreme Court case clearly establishes a pro

se petitioner’s constitutional right to law library access. The

case at bench, however, involves only the tolling of an

AEDPA deadline, not the actual grant of habeas relief, as was

sought in Kane. Relief for Mendoza turns on the existence of

an extraordinary circumstance that prevented timely filing,

which does not require proof of any constitutional violation,

much less a violation of a constitutional right that has been

clearly established by the Supreme Court. Cf. id. at 408; 28

U.S.C. § 2244(d)(1)(B); 28 U.S.C. § 2254(d)(1). Accordingly

Kane’s holding that the Supreme Court has not clearly estab-

lished a Sixth Amendment right to law library access has no

bearing on the inquiry before us.

[8] Because Mendoza alleged that he lacks English lan-

guage ability, was denied access to Spanish-language legal

materials, and could not procure the assistance of a translator

during the running of the AEDPA limitations period, he has

alleged facts that, if true, may entitle him to equitable tolling.6

6

The standard for equitable tolling requires both the presence of an

extraordinary circumstance and the inmate’s exercise of diligence. Pace,

125 S.Ct. at 1814. The question of Mendoza’s diligence is unclear from

the limited record before us. Mendoza’s declaration refers to his discour-

MENDOZA v. CAREY 6245

Therefore, there are “circumstances consistent with petition-

er’s petition and declaration under which he would be entitled

to . . . equitable tolling,” Whalem/Hunt, 233 F.3d at 1148, and

remand for factual development of the record is the appropri-

ate course of action. Mendoza has not yet been granted an evi-

dentiary hearing in which his factual allegations could be

established; nor has the State been provided with an opportu-

nity to rebut Mendoza’s allegations. We therefore reverse and

remand to the district court for appropriate development of

the record.

REVERSED and REMANDED.

KLEINFELD, Circuit Judge, dissenting:

I respectfully dissent.

Mendoza accepted a plea bargain and was sentenced in

state court to fourteen years for assault with a firearm on a

person. He contends in his federal petition for a writ of habeas

corpus that his sentence was illegal. This case involves, not

the merits, but the lateness of his petition. Here are the rele-

vant dates of filing and denial of all filings seeking post con-

viction relief:

Sentence pronounced: June 21, 2001

Conviction final (there was no appeal): August 21, 2001

agement at not finding Spanish-language assistance in the prison law

library, and refers to his “finally” obtaining the services of a bilingual

inmate. These statements, however, make no reference to the time period

in which these actions occurred. Therefore, it is impossible to ascertain on

this record whether, during the relevant time period, Mendoza exercised

the requisite diligence in his search for Spanish-language materials or a

willing translator. Upon remand, the district court will be able to clarify

these factual ambiguities.

6246 MENDOZA v. CAREY

Petition for writ of habeas corpus in California Superior Court

May 14, 2003, denied May 16, 2003

Petition for writ of habeas corpus in California Supreme

Court July 10, 2003, denied March 17, 2004

Petition for writ of habeas corpus in Los Angeles Superior

Court: July 18, 2003, denied July 31, 2003

Petition for writ of habeas corpus filed in United States Dis-

trict Court April 15, 2004 (this is the date it is stamped filed,

but the court throughout has given him the benefit of the

“mailbox rule” and considered it filed on April 3), denied

September 1, 2004

Unless equitably tolled, the AEDPA one-year statute of limi-

tations1 barred Mendoza’s federal habeas petition in August

2002, long before he filed anything in any court challenging

his conviction or sentence. He was silent during the year he

was given to challenge his conviction and sentence. The

majority concludes that the one-year statute of limitations

may not have run because Mendoza has made a sufficient

showing to get an evidentiary hearing on whether language

difficulties prevented him from filing a timely petition. The

evidence in the record undermines that conclusion.

Mendoza was born in the U.S.A. He says that his parents

were Spanish speaking. Though he complains of the lack of

Spanish legal materials in prison libraries, he does not claim

that he can read Spanish.2 Nor does he show that the neces-

1

28 U.S.C. § 2244(d)(1).

2

The majority says that any inference other than that Mendoza can read

Spanish “defies common sense.” Majority Opinion at 6237, n.1. I think

common sense suggests that a person born in the U.S.A. who grew up here

most likely does not read Spanish and that anyone who filed as many affi-

davits as Mendoza did would file one saying that he could read Spanish,

if he felt he could do so without exposing himself to a perjury prosecution.

The ability to read a language foreign to the country of one’s birth is not

transmitted through the blood.

MENDOZA v. CAREY 6247

sary legal materials, such as the federal statutes, rules, and

cases exist in Spanish text. We are evidently imposing an evi-

dentiary hearing on this old conviction on the theory that one

somehow becomes literate in an ancestral language by osmo-

sis and no declaration asserting this literacy is required. Were

that so, there would be a lot of subscriptions to Der Spiegel,

Le Monde, the Yiddish edition of The Forward, and all sorts

of other foreign language newspapers and magazines in the

United States. Most of us who are born in the United States,

as Mendoza was, are unfortunately illiterate in our ancestral

tongues. Mendoza evidently speaks Spanish, and does not

read English, but that does not imply that he reads Spanish at

a level such that he could understand legal texts if they were

available to him in Spanish. Those imprisoned for gang shoot-

ings on the streets of Los Angeles as Mendoza was may not

always have been the stars of their junior high school class.

He has not claimed that he can read Spanish.

Mendoza’s declaration says that the “reception center” to

which he was initially sent had no Spanish-language materials

and the librarian there told him that he would have to wait

until he got to his assigned prison. That could not have pre-

vented him from filing something within a year because he

says he was at the reception center for only about three

months before arriving at Solano State Prison. That left him

about nine months after he got to Solano State Prison to file

his petition.

Assuming that Mendoza spoke Spanish but not English, as

suggested by his declaration, what he would need is Spanish

speakers who could read English. So far as the declarations

show, he had them. He complains that at the prison library,

“most” of the inmates were not Spanish speakers, which

implies that some were, and he says that “all” spoke English.

He had nine months at the prison before limitations ran out,

so it is Mendoza’s burden to prove that, even with due dili-

gence, extraordinary circumstances prevented him from filing

6248 MENDOZA v. CAREY

before the deadline. That raises the question of why he did not

enlist any of the bilingual inmates to help him.

He says in his declaration that he “finally” learned of some-

one who could help him through prison yard conversations

and this prisoner wrote his unsuccessful May 2003 petition

for him. But, he does not establish that there were no bilingual

prisoners before that, and it is hard to believe there were not.

It is not as though he spoke some language rare in California

like Inupiat.

The 47 declarations by other prisoners that Mendoza filed

demonstrate not the absence of an ability to communicate

with the court, but its presence. The majority says that Men-

doza has shown that he “could not procure the assistance of

a translator” during his year, but his submissions show the

opposite. Many of his declarants say that they were at Solano

State Prison during the entire nine months Mendoza was there

before limitations barred Mendoza’s claim. All of the declara-

tions are in English, implying that the declarants speak and

read English. They nowhere suggest that they could not read

English. The inmate declarations Mendoza submitted all say:

“I am a Spanish speaking person and Spanish reading per-

son.” But Mendoza’s declaration does not say that he is a

“Spanish reading person.” He was born in the U.S.A., so it

does not go without saying.

Thus, what Mendoza has proved is that he speaks Spanish,

and he was surrounded by people who spoke and read English

and Spanish throughout the nine months that limitations were

running out. All of the declarations complain of the absence

of Spanish-language law books in the prison library, but in the

absence of evidence that the relevant law books exist or that

Mendoza could have read them if they were there, the com-

plaint does not establish even a colorable claim that the

absence of Spanish-language law books mattered to Mendoza.

He says he did not find any of his many fellow prisoners who

could have helped him during his first year of incarceration,

MENDOZA v. CAREY 6249

but that excuse is not a level of diligence justifying equitable

tolling. Mendoza says he was “very discouraged because of

the lack of ability to know anything about my sentence and

why I had received so much time,” but if he means to refer

to linguistic difficulty, as opposed to a broader difficulty in

understanding why shooting up a street in Compton got him

thrown in prison, discouragement does not excuse doing noth-

ing for a year.

Congress imposed a one year statute of limitations on fed-

eral habeas petitions.3 Equitable tolling is the exception, not

the rule.4 The test is whether “ ‘extraordinary circumstances’

beyond a prisoner’s control make it impossible to file a peti-

tion on time.”5 “Due diligence” is required of the prisoner to

merit tolling,6 and the prisoner has the burden of establishing

his entitlement to tolling.7

The majority opinion says Mendoza might be entitled to

equitable tolling if he “demonstrate[s] that during the running

of the AEDPA time limitation, he was unable, despite diligent

efforts, to procure either legal materials in his own language

or translation assistance from an inmate, library personnel, or

other source.” Our creation of a right to one or the other ought

to await a case where the facts show that it would have mat-

tered. Mendoza’s evidence shows that he had plenty of fellow

3

28 U.S.C. § 2244(d).

4

See Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002).

5

Calderon v. United States Dis. Ct. for the Centr. Dist. of Cal.(Beeler),

128 F.3d 1283, 1288 (9th Cir. 1997), overruled in part on other grounds,

Calderon v. United States Dis. Ct. for the Centr. Dist. of Cal.(Kelly), 163

F.3d 530 (9th Cir. 1998).

6

Allen v. Lewis, 255 F.3d 798 (9th Cir. 2001); see also Valverde v. Stin-

son, 224 F.3d 129, 133 (2nd Cir. 2000) (“If the person seeking equitable

tolling has not exercised reasonable diligence in attempting to file after the

extraordinary circumstances began, the link of causation between the

extraordinary circumstances and the failure to file is broken, and the

extraordinary circumstances therefore did not prevent filing.”).

7

Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir. 2002).

6250 MENDOZA v. CAREY

prisoners who could translate for him. He does not show that

relevant Spanish-language legal materials exist.

The authorities do not support the majority’s decision. The

Supreme Court recently held in Kane v. Espitia8 that there is

no right clearly established by a Supreme Court decision to

access to a law library at all, let alone one in Spanish. The

decision summarily and unanimously reverses a decision in

which we had granted a writ because a pro se defendant

claimed he had no access to a law library while in jail prepar-

ing for trial.9 In Whalem/Hunt v. Early,10 we held that a pris-

oner might be entitled to tolling where there was no way he

could even find out about the one year statute of limitations

in his prison library because it had not been kept up to date,

but there, unlike here, there was a record that demonstrated an

impediment that the prisoner could not surmount with due dil-

igence.

The majority’s reliance on Cobas v. Burgess is puzzling.11

In that case, the inmate argued for equitable tolling “because

he was born and raised in Cuba and is unable to understand,

read, or write the English language.”12 The Sixth Circuit held

against Cobas, not for him, denying him equitable tolling and

affirming the dismissal of his habeas petition because it was

time barred. “We hold that where a petitioner’s alleged lack

of proficiency in English has not prevented the petitioner

from accessing the courts, that lack of proficiency is insuffi-

cient to justify an equitable tolling of the statute of limitations.”13

The court noted that, although Cobas had had an interpreter

for his trial, he had sent letters in English, possibly with the

8

Kane v. Espitia, ___ U.S. ___, 126 S.Ct. 407 (2005).

9

Id.

10

Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000) (en banc).

11

Cobas v. Burgess, 306 F.3d 441 (6th Cir. 2002) cert. denied Cobas v.

Burgess, 538 U.S. 984 (2003).

12

Id. at 443.

13

Id. at 444.

MENDOZA v. CAREY 6251

assistance of a translator.14 The court held that “[i]n general,

the existence of a translator who can read and write English

and who assists a petitioner during his appellate proceedings

implies that a petitioner will not have a reasonable cause for

remaining ignorant of the legal requirements for filing his

claim.”15 Under Cobas “even his illiteracy does not give a

court reason to toll the statute of limitations,”16 and “we are

loath to impose any standards of competency on the English

language translator utilized by the non-English speaking

habeas petitioner.”17 Were Cobas the law of this circuit, a for-

tiori Mendoza would lose on his tolling claim, not win. And

the Eleventh Circuit followed the Sixth, in United States v.

Montano.18

There is a real problem, and also a fake one, underlying this

case. The real problem is that because inmates are not entitled

to appointed counsel for habeas petitions,19 they have little

hope of understanding the myriad subtleties and intricacies of

habeas law. It is a subject that challenges the most capable

lawyers and judges. The fake problem is the lack of a

Spanish-language library in Solano State Prison, where Men-

doza has been. This American-born prisoner does not show

that he needed a Spanish library, or that he could have read

the books in it if they were there, or that he lacked access to

fellow prisoners who could read what was there in English

and help him with his legal papers. This case appears to be an

effort by a jailhouse lawyer, who boasts in his declaration of

his own extensive experience in fourteen different prisons in

California and the lack of Spanish-language law books in any

14

Id.

15

Id. (internal citations omitted).

16

Id.

17

Id.

18

United States v. Montano, 398 F.3d 1276, 1280 n.5 (11th Cir. 2005).

19

See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“[T]he right to

appointed counsel extends to the first appeal of right, and no further.”);

Miranda v. Castro, 292 F.3d 1063, 1068 (9th Cir. 2002).

6252 MENDOZA v. CAREY

of their libraries. Maybe that is a real problem in some cases,

but it is a fake problem in this one because there is no show-

ing that it would have mattered. Mendoza’s many filings in

English show that he has been able to gain access to the

courts. The threshold for equitable tolling under AEDPA is

“very high, lest the exceptions swallow the rule.”20 This

American-born inmate has not demonstrated a barrier to

access to himself (as opposed to others who might, perhaps,

understand and read a more exotic language that no other pris-

oners spoke) that would, if true, entitle him to tolling.

20

Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir. 2002) (internal cita-

tions omitted).