Mendoza v. Carey ( 2006 )

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).