FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALBERT ROY, 

Petitioner-Appellant, No. 04-35514

v.  D.C. No.

ROBERT O. LAMPERT, CV-01-00861-CO

Respondent-Appellee. 

PHILLIP L. KEPHART,  No. 04-35626

Petitioner-Appellant, D.C. No.

v. CV-01-00690-CO

STAN CZERNIAK, Superintendent, ORDER

OSP, AMENDING

Respondent-Appellee. OPINION AND  DENYING

PETITION FOR

REHEARING/

REHEARING EN

BANC AND

AMENDED

OPINION 

Appeal from the United States District Court

for the District of Oregon

John P. Cooney, Magistrate Judge, Presiding

Argued and Submitted

December 5, 2005—Portland, Oregon

Filed July 12, 2006

Amended September 22, 2006

11859
Before: James R. Browning, Dorothy W. Nelson, and

Diarmuid F. O’Scannlain, Circuit Judges.

Opinion by Judge D.W. Nelson

11860 ROY v. LAMPERT
COUNSEL

Anthony D. Bernstein, Portland, Oregon, for the appellant. 

Erin C. Lagesen, Assistant Attorney General, Salem, Oregon,

for the appellee. 

ORDER

The opinion filed on July 12, 2006, slip opinion at 7625

and published at 455 F.3d 945 (9th Cir. 2006) is amended as

follows:

Page 7641 of the slip opinion, last words: 

replace “[other things]” with “[circumstances other

than petitioner’s lack of diligence]” 

Page 7643 of the slip opinion, last two sentences of the first

full paragraph: 

replace: “Kephart was in fact told by his attorney

that the statute of limitations did not expire until

December of 1997, eight months after the actual

expiration date. Kephart’s attorney told him of the

date he believed to be the expiration date for filing

his habeas claim after Kephart was already in Arizona, and therefore after the point at which he could

have confirmed or disproved what his attorney

informed him about AEDPA.” with “Likewise,

Kephart asserted that he had had “no . . . notice of

the AEDPA” either from the prison library or from

any other source, and that he “was not able to gain

knowledge of the one year limitation period for filing under [AEDPA]” until after he had filed his state

post-conviction petition and had been returned to

Oregon.” 

11864 ROY v. LAMPERT
With these amendments, the members of the panel that

decided this case voted unanimously to deny the petition for

rehearing. Judge O’Scannlain voted to deny the petition for

rehearing en banc. Judges Browning and Nelson recommended denial of the petition for rehearing en banc. 

The full court has been advised of the petition for rehearing

en banc and no judge of the court has requested a vote on

whether to rehear the matter en banc. 

The petition for rehearing and the petition for rehearing en

banc are denied. No further petitions for rehearing or rehearing en banc may be filed.

OPINION

D.W. NELSON, Senior Circuit Judge: 

Albert Roy and Phillip Kephart were both convicted of

crimes in Oregon state court. The federal district court dismissed both of their federal habeas petitions as untimely

because they were filed after the one-year statute of limitations period created by the Antiterrorism and Effective Death

Penalty Act (“AEDPA”). We consolidated their cases to

answer a single question: Are Roy and Kephart entitled to an

evidentiary hearing regarding their claim that the statute of

limitations should be equitably tolled because they were transferred to an Arizona prison facility that, they allege, had a

woefully deficient law library? 

Because we decide that Roy and Kephart made sufficient

allegations that they pursued their claims diligently and faced

extraordinary circumstances once they were transferred to the

Arizona prison facility, we remand this case to the district

court to hold an evidentiary hearing. 

ROY v. LAMPERT 11865
I

Albert Roy pleaded guilty to two counts of first-degree sodomy in Oregon state court and was convicted of those two

counts. Roy appealed this conviction to the Oregon Court of

Appeals, which affirmed his conviction on August 23, 1995.

Roy did not appeal either to the Oregon Supreme Court or the

United States Supreme Court. Accordingly, his direct appeal

became final on November 1, 1995. 

During this time, Roy was imprisoned in Oregon, but on

February 7, 1996, Roy was transferred to a private prison

facility in Florence, Arizona. Roy remained at this Arizona

facility until April 25, 1997, at which time he was returned to

the Oregon prison facility. On February 28, 1997, while he

was at the Arizona facility, Roy filed a petition for habeas

relief in the United States District Court for the District of

Arizona, complaining of his transfer to Arizona and the difficulties it presented for his efforts to continue to pursue a challenge to his conviction. The Arizona court transferred this

case to the Oregon district court on August 28, 1998, and the

Oregon district court eventually dismissed the case. 

On October 22, 1997, while his initial attempt to file a federal habeas petition was pending, and after Roy was transferred back to the Oregon prison facility, Roy filed a petition

for post-conviction relief in Oregon state court. This petition

was denied. The Oregon Court of Appeals affirmed this denial

without an opinion, and the Oregon Supreme Court denied

review. The decision of the Oregon Supreme Court became

final on December 5, 2000. On May 23, 2001, Roy filed the

federal habeas petition leading to this appeal.

Philip Kephart was also convicted in Oregon state court.

Kephart was convicted of four counts of second-degree

assault, one count of first-degree assault, one count of

attempted first-degree assault, and two counts of criminal

mistreatment. The Oregon Court of Appeals affirmed his con11866 ROY v. LAMPERT
victions on direct appeal. Kephart petitioned for review in the

Oregon Supreme Court, and the Oregon Supreme Court

remanded his case to the Oregon Court of Appeals, which

again affirmed his convictions. After the Oregon Court of

Appeals affirmed his convictions on remand, Kephart did not

appeal either to the Oregon Supreme Court or to the United

States Supreme Court, and therefore his direct appeal became

final on December 8, 1995. 

Like Roy, Kephart was initially imprisoned in Oregon, and

was later transferred to the correctional facility in Florence,

Arizona (on February 7, 1996). On May 6, 1997, Kephart

filed his petition for post-conviction relief in Oregon state

court, and shortly thereafter, on July 14, 1997, Kephart was

returned to an Oregon prison. Kephart’s petition for state

post-conviction relief was denied on July 17, 1997. The Oregon Court of Appeals affirmed this decision, and the Oregon

Supreme Court declined to review the case, a decision that

became final on October 23, 2000. Kephart then filed his federal habeas petition, the petition at issue in this appeal, on

May 14, 2001. 

In both Roy and Kephart’s cases, the district court adopted

the suggestions of the magistrate judge, and eventually dismissed the habeas petitions as untimely. This court granted a

certificate of appealability on the issue of “whether the district

court properly denied appellant’s federal habeas corpus petition as untimely and denied equitable tolling without an evidentiary hearing despite conflicting affidavits on a factual

issue.” 

II

This court reviews de novo the district court’s refusal to

consider a petition for habeas corpus on grounds of tardiness.

Herbst v. Cook, 260 F.3d 1039, 1042 (9th Cir. 2001). The

decision by the district court to decline to order an evidentiary

ROY v. LAMPERT 11867
hearing is reviewed for abuse of discretion. Tapia v. Roe, 189

F.3d 1052, 1056 (9th Cir. 1999). 

III

We first address whether the district court was correct to

consider Roy and Kephart’s federal petitions untimely, and

we conclude that it was correct that their petitions were

untimely. 

[1] Pursuant to AEDPA, a prisoner may only file a federal

habeas petition within one year from the conclusion of state

direct review. 28 U.S.C. § 2244(d). This limitations period is

tolled while a state prisoner is exhausting his claims in state

court, Nino v. Galaza, 183 F.3d 1003, 1005 (9th Cir. 1999),

and when a prisoner is trying to pursue state post-conviction

remedies. Id. at 1006. However, the statute of limitations is

not tolled “from the time a final decision is issued on direct

state appeal [to] the time the first state collateral challenge is

filed.” Id. The statute of limitations period is also not tolled

after state post-conviction proceedings are final and before

federal habeas proceedings are initiated. See 28 U.S.C.

§ 2244(d)(2) (stating that the limitations period does not run

while “a properly filed application for State post-conviction or

other collateral review with respect to the pertinent judgment

or claim is pending” (emphasis added)). 

While the AEDPA statute of limitations was running in this

case between the end of state direct proceedings and state

post-conviction proceedings, as well as between the time of

the end of their state post-conviction appeals and the filing of

their federal habeas petition, only the former time period was

longer than the one-year statute of limitations established by

AEDPA. In other words, if the time period while Roy and

Kephart were in Arizona is equitably tolled, then Roy and

Kephart will not have exceeded AEDPA’s one-year statute of

limitations. 

11868 ROY v. LAMPERT
[2] For both Roy and Kephart, the final dispositions of their

direct appeals occurred before the effective date of AEDPA,

and therefore they “were required to file any remaining federal petition for which they were otherwise eligible within one

year of AEDPA’s effective date, that is, by April 24, 1997.”

Laws v. LaMarque, 351 F.3d 919, 921 (9th Cir. 2003). Roy

filed his petition for state post-conviction relief on October

22, 1997, a full 551 days after April 24, 1996, well beyond the

one-year limitation mandated by AEDPA. 

But for this time period, when Roy filed his federal habeas

petition, he would have been within the statute of limitations

period provided by AEDPA. Roy’s state post-conviction

appeal became final on January 3, 2001, and Roy filed his

federal habeas petition on June 11, 2001, meaning that if the

time between his state direct and post-conviction appeals had

been equitably tolled, only the time between the termination

of his state post conviction appeals and his federal habeas

petition would have counted, and the clock would have run

for only 159 days of the one-year statute of limitations provided by AEDPA. 

The same is true of Kephart. Kephart’s direct appeal also

became final before the effective date of AEDPA, meaning

that he also was “required to file any remaining federal petition for which [he was] otherwise eligible within one year of

AEDPA’s effective date, that is, by April 24, 1997.” Id. at

921. Kephart filed his petition for state post-conviction relief

on May 6, 1997, twelve days after April 24, 1997, the latest

date he could have filed pursuant to AEDPA’s one-year statute of limitations. If that period of time had been equitably

tolled, Kephart also would have easily avoided AEDPA’s

one-year statute of limitations. Kephart’s state post-conviction

efforts became final on December 5, 2000, and on May 23,

2001, 169 days later and well within the one-year AEDPA

time frame, Kephart filed his federal habeas petition. 

[3] For these reasons, it is clear that, unless the time period

when Roy and Kephart were in Arizona is equitably tolled,

ROY v. LAMPERT 11869
Roy and Kephart filed their federal habeas petitions after the

one-year statute of limitations provided by AEDPA. It is also

clear that, if this time period is equitably tolled, Roy and

Kephart filed their federal habeas petitions within the oneyear statute of limitations provided by AEDPA. 

IV 

[4] This court has recognized that the AEDPA statute of

limitations provisions violated by Roy and Kephart can be

subject to equitable tolling. See Calderon v. United States

Dist. Court (Beeler), 128 F.3d 1283, 1288 (9th Cir. 1997),

overruled on other grounds by Calderon v. United States Dist.

Court (Kelly), 163 F.3d 530 (9th Cir. 1998) (en banc). Equitable tolling is applicable only “if extraordinary circumstances

beyond a prisoner’s control make it impossible to file a petition on time.” Beeler, 128 F.3d at 1288 (internal quotation

marks omitted). These extraordinary circumstances must be

“the cause of [the] untimelieness.” Spitsyn v. Moore, 345 F.3d

796, 799 (9th Cir. 2003). 

[5] A habeas petitioner like Roy or Kephart should receive

an evidentiary hearing when he makes “a good-faith allegation that would, if true, entitle him to equitable tolling.” Laws

v. LaMarque, 351 F.3d 919, 919 (9th Cir. 2003) (emphasis

added). Roy and Kephart must demonstrate that they have

“been pursuing [their] rights diligently . . . [and] that some

extraordinary circumstance stood in [their] way.” Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005). 

We therefore must first address whether Roy and Kephart

made sufficient allegations of diligence to be entitled to an

evidentiary hearing, and our precedents do not provide us

much guidance regarding what diligence might mean in the

AEDPA context.1 Because both Roy and Kephart filed their

1This court has found equitable tolling potentially warranted in several

AEDPA cases, but has focused almost exclusively on whether the relevant

11870 ROY v. LAMPERT
habeas petitions pro se, allege specific efforts they pursued in

order to file habeas petitions, and because both filed their

claims within a reasonable period of time after they were

transferred back to the Oregon facility and the extraordinary

circumstances were removed, we find that Roy and Kephart

presented sufficient evidence of their diligence to warrant an

evidentiary hearing. 

A

[6] As an initial matter, we consider it highly relevant that

Roy and Kephart were proceeding pro se until appointed

counsel by the district court. We must “construe pro se habeas

filings liberally.” Allen v. Calderon, 408 F.3d 1150, 1153 (9th

Cir. 2005); see also Belgarde v. State of Montana, 123 F.3d

1210, 1213 (9th Cir. 1997) (“We construe a pro se litigant’s

habeas petition with deference.”). Because Roy and Kephart

were proceeding pro se, we construe their allegations regarding diligence liberally. 

[7] It is clear that pro se status, on its own, is not enough

to warrant equitable tolling. See, e.g., Johnson v. United

States, 544 U.S. 295, 311 (2005) (“[W]e have never accepted

pro se representation alone or procedural ignorance as an

excuse for prolonged inattention when a statute’s clear policy

calls for promptness.”). But we also here reaffirm the clear

principle that, even though pro se status alone is not enough

to warrant equitable tolling, it informs and colors the lens

“extraordinary circumstances” were present rather than whether the habeas

petitioner had pursued their rights diligently. See Laws v. LaMarque, 351

F.3d 919, 919 (9th Cir. 2003); Spitsyn v. Moore, 345 F.3d 796 (9th Cir.

2003); Stillman v. LaMarque, 319 F.3d 1199 (9th Cir. 2003); Corjasso v.

Ayers, 278 F.3d 874 (9th Cir. 2002); Jorss v. Gomez, 311 F.3d 1189 (9th

Cir. 2001); Whalem/Hunt v. Early, 233 F.3d 1146 (9th Cir. 2000), Miles

v. Prunty, 187 F.3d 1104 (9th Cir. 1999); Calderon v. United States Dist.

Court (Beeler), 128 F.3d 1283 (9th Cir. 1997), overruled on other grounds

by Calderon v. United States Dist. Court (Kelly), 163 F.3d 530 (9th Cir.

1998) (en banc). 

ROY v. LAMPERT 11871
through which we view the filings, and whether these filings

made sufficient allegations of diligence. See Balistreri v.

Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)

(“This court recognizes that it has a duty to ensure that pro se

litigators do not lose their right to a hearing on the merits of

their claim due to ignorance of technical procedural requirements.”). 

B

Roy and Kephart made several allegations regarding their

efforts to pursue their appeals diligently. After beginning

efforts to file an appeal while in Arizona, Roy complained to

Sheila Reed, the State of Oregon Governor’s Advocate for

Public Safety and the Corrections Ombudsman, that the Arizona facility did not have sufficient legal resources to enable

Roy to pursue his claims. Roy in fact met with Reed in Arizona in person to complain about the law library. 

[8] Roy also filed a federal lawsuit while in Arizona challenging the acceptability of the law library. It is true that, after

this case was transferred to the district court in Oregon, that

court dismissed Roy’s lawsuit for lack of prosecution. This

dismissal, though, does not make his filing of the lawsuit any

less relevant in proving diligence. We are examining whether

Roy had been diligent in his efforts to pursue his appeal at the

time his efforts were being thwarted, namely while he was at

the prison facility in Arizona. Cf. Spitsyn, 345 F.3d at 802

(“ ‘[T]he person seeking equitable tolling [must demonstrate]

reasonable diligence in attempting to file . . . after the extraordinary circumstances began.” (emphasis added)). 

Roy was transferred to the Arizona facility on February 7,

1996; he was transferred back to the Oregon facility on April

25, 1997. The judgment of the Oregon district court, though,

was issued on September 2, 1998, well after the relevant

period we are examining to see if Roy was diligent in pursuing his appeal. Moreover, the judgment by the Oregon district

11872 ROY v. LAMPERT
court makes no reference to any specific time frame or actions

revealing Roy’s lack of diligence in pursuing his claims.

Indeed, that decision simply states that it was construing

Roy’s case as a 42 U.S.C. § 1983 case, rather than a habeas

case, and that therefore Roy had to provide an additional fee,

an application to proceed in forma pauperis, or dismiss that

case. 

[9] At the time that decision was issued, Roy was already

safely back in Oregon, and therefore the entire reason why

Roy filed the lawsuit—to complain of his move to Arizona—

was obviated. It is unsurprising, and not particularly relevant,

then, that Roy (voluntarily) dismissed his lawsuit. His failure

to pursue the lawsuit further does not demonstrate a lack of

diligence in protesting the conditions in Arizona; it demonstrates that the lawsuit was no longer necessary because Roy

was no longer in Arizona. 

[10] Kephart also presented evidence of his efforts to file

his claim while in Arizona. One of the affidavits in this case

indicates that “Kephart was trying to file his state post conviction” claim and thus was present in the law library trying to

do research. The fact that Kephart was able to discuss with

specificity what precisely was present in the Arizona library

also indicates he had visited the library at least on occasion.

Kephart stated that the Arizona library “consisted of only

three outdated legal books, which contained no information

about the AEDPA.” 

[11] Since we have no cases on point from this circuit, we

look to cases from other circuits for guidance. See United

States v. Tobeler, 311 F.3d 1201, 1203 (9th Cir. 2002) (noting

the “persuasive [value of] authority from other circuits”). In

cases finding the absence of diligence in an equitable tolling

context from our sister circuits, habeas petitioners demonstrated much less effort by the prisoners than Roy and

Kephart demonstrated in this case. 

ROY v. LAMPERT 11873
In Helton v. Sec’y for the Dept. of Corrections, 259 F.3d

1310 (11th Cir. 2001), the court found that the prisoner had

not exercised reasonable diligence because he never asserted

that he “asked for the amendments to the federal habeas corpus statutes,” id. at 1314, and was in fact not “even aware the

library did not have these materials at the time he filed his

section 2254 petition,” id. at 1313; see also id. at 1314

(“Helton fails to state any independent efforts he made to

determine whether the relevant limitations period began to

run.”) (emphasis added). 

[12] In this case, by contrast, Kephart stated with specificity that the Arizona library “consisted of only three outdated

legal books, which contained no information about AEDPA.”

Roy filed a federal lawsuit indicating that the Arizona library

did not have “an Oregon trained legal assistant and a current

adequate Oregon law library.”

2

Likewise, in Miller v. Marr, 141 F.3d 976 (10th Cir. 1998),

the habeas petitioner’s statements about law library inadequacies were less specific than those made here by Roy and

Kephart. Id. (“It is not enough to say that the Minnesota facility lacked all relevant statutes and case law or that the procedure to request specific materials was inadequate.”); see also

id. at 978 (“In the final analysis, however, Mr. Miller has provided no specificity regarding the alleged lack of access and

the steps he took to diligently pursue his federal claims.”). 

2Of course, we do not hold that a federal Arizona prison facility must

employ an Oregon-trained legal assistant, nor do we hold that the lack of

such a legal assistant could alone satisfy the “extraordinary circumstance”

requirement for equitable tolling. Nevertheless, the fact that Roy timely

filed a lawsuit alleging deficiencies in the Arizona facility is evidence of

his diligence in trying to secure his rights. We leave for the district court

to consider, after an evidentiary hearing, whether any lack of personnel or

materials in the Arizona facility constituted a sufficiently “extraordinary

circumstance” such that Roy and Kephart could not timely file their petitions. 

11874 ROY v. LAMPERT
C

[13] In addition to the specific efforts Roy and Kephart

allege that they made to pursue their claims, we also consider

it important that Roy and Kephart pursued their claims within

a reasonable period of time before the external impediment3

—in this case, the transfer to Arizona—came into existence.

See LaCava v. Kyler, 398 F.3d 271, 277 (3rd Cir. 2005)

(“This obligation [to act diligently] does not pertain solely to

the filing of the federal habeas petition, rather it is an obligation that exists during the period appellant is exhausting state

court remedies as well.”). 

In Miller, in a context similar to this case, one of our sister

circuits found that the habeas petitioner did not exercise reasonable diligence because, in addition to the absence of specific references to his efforts, the habeas petitioner waited a

long time before filing his petition, in that case more than a

year before the extraordinary circumstance being argued as

the cause of equitable tolling was created. Miller, 141 F.3d at

978. Similarly, in LaCava, twenty-one months elapsed before

the circumstances that the prisoner argued created equitable

tolling arose. LaCava, 398 F.3d at 272. 

[14] In this case, Roy’s direct appeal became final on January 30, 1996, and barely one week ensued before, on February

7, 1996, Roy was transferred to Arizona. Kephart’s direct

appeal became final on March 7, 1996, after he was trans3We note that AEDPA itself provides that the statute of limitations

“shall run from the . . . date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the

United States is removed[.]” 28 U.S.C. § 2244(d)(1)(B). Because we

address the conditions of the Arizona prison library as a possible “impediment” as part of our equitable tolling argument, we need not address the

identical statutory tolling arguments. See Gatson v. Palmer, 417 F.3d

1030, 1035 (9th Cir. 2005) (“[T]he district court’s rejection of equitable

tolling . . . constitutes an implicit rejection of [the] impediment argument.”). 

ROY v. LAMPERT 11875
ferred to Arizona on February 7, 1996.4

 Thus, Roy had just

three months in which to file a state post-conviction petition

after his direct appeal became final and before he was transferred to Arizona, and Kephart had no time at all.5

D

[15] We decline to adopt the district court’s test and require

that Roy and Kephart “indicate . . . when [they] asked for

assistance none was provided . . . [and] provide the dates on

which [they] attempted to obtain information from the Arizona facility.” The purpose of requiring habeas petitioners to

demonstrate diligence in order to be entitled to an evidentiary

hearing regarding equitable tolling is to ensure that the

extraordinary circumstances faced by petitioners like Roy and

Kephart—and not their lack of diligence—were the cause of

4The evidence supporting Roy and Kephart’s diligence is not affected

if we measure their diligence based not on when their direct appeals

became final but rather based on when the final decisions or dispositions

of a court occurred. Roy’s final effort at direct appeal was denied by the

Oregon Supreme Court on August 23, 1995, approximately five months

before he was transferred to Arizona, and Kephart’s last judicial decision

regarding his direct appeal was on October 11, 1995, less than four months

before he was transferred to Arizona. 

5

In Pace v. DiGuglielmo, 544 U.S. 408 (2005), the Supreme Court

decided that a habeas petitioner was not entitled to equitable tolling

because “not only did petitioner sit on his rights for years before he filed

his [state post-conviction] petition, but he also sat on them for five more

months after his [state post-conviction] proceedings became final before

deciding to seek relief in federal court.” Id. at 419 (emphasis and boldface

added). It is true that, in this case, after their state post-conviction appeals

were final and before they filed their federal habeas petitions, Roy waited

about six months and Kephart around five months. However, the Supreme

Court refused to recognize an equitable tolling claim in Pace not just

because of the delay between the state post-conviction and federal habeas

stages, but also because of the earlier, more egregious delays. Id.

(“[P]etitioner waited years, without any valid justification, to assert these

claims in his [post-conviction petition]. Had petitioner advanced his

claims within a reasonable time of their availability, he would not now be

facing any time problem.”) (footnote omitted). 

11876 ROY v. LAMPERT
the tardiness of their federal habeas petitions. Spitsyn v.

Moore, 345 F.3d 796, 802 (9th Cir. 2003) (“ ‘[I]f 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.’ ” (quoting

Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000))). 

[16] Since this is the reason for showing diligence, then

habeas petitioners should not have to allege specific dates and

times of library visits. Of course, the district court is correct

that specific dates may be highly probative when petitioners

attempt to show that they acted diligently in securing their

rights. However, if the petitioners can allege facts showing

that extraordinary circumstances—and not a lack of diligence

—caused the failure to file, there is no need to require specific

dates before holding an evidentiary hearing. 

[17] By alleging what they did to pursue their claims and

complain about their situations, and alleging that they did so

before AEDPA’s statute of limitations expired, Roy and

Kephart have done enough to demonstrate that they were not

the cause of their tardiness, and that they would have filed on

time but for their transfer to Arizona. This is particularly so

because we have earlier decided in the AEDPA equitable tolling context that “[o]ne event may have multiple causes. If

[petitioner’s] late filing was caused both by . . . [circumstances other than petitioner’s lack of diligence] and by prison

officials’ misconduct, [petitioner] still is entitled to equitable

tolling, since prison officials’ misconduct proximately caused

the late filing.” Stillman v. Lamarque, 319 F.3d 1199, 1203

(9th Cir. 2003).

IV

A

[18] Given that Roy and Kephart have made sufficient allegations regarding their diligence to entitle them to an evidenROY v. LAMPERT 11877
tiary hearing, they must next demonstrate that “extraordinary

circumstances beyond [their] control make it impossible to

file a petition on time.” Beeler, 128 F.3d at 1288. Whether

Roy and Kephart have demonstrated extraordinary circumstances is clearly governed by a decision from this court

directly on point, Whalem/Hunt v. Early, 233 F.3d at 1148,

which compels a finding that Roy and Kephart made sufficient allegations of extraordinary circumstances. 

[19] In Whalem/Hunt, the en banc court remanded to the

district court for an evidentiary hearing related to an equitable

tolling argument for two primary reasons, both of which apply

in this case. First of all, “the law library of the prison in which

[the prisoner] is incarcerated did not have legal materials

describing AEDPA until June 1998.” Id. at 1147. The absence

of AEDPA in the law library, when combined with the second

relevant fact that the prisoner in Whalem/Hunt “had no

knowledge of any limitations period,” id., led to the decision

by the en banc court to remand for an evidentiary hearing. 

[20] In this case, Roy and Kephart made similar “allegation[s] that would, if true, entitle [them] to equitable tolling.”

Laws, 351 F.3d at 919. First, both alleged that the Arizona

library did not have the requisite AEDPA materials. Roy

stated that at the prison facility in Arizona “there was no law

library available” and therefore he did not have access to

AEDPA. Kephart stated that the Arizona “library . . . contained no information about the AEDPA.” 

In Whalem/Hunt, besides the issue of AEDPA availability,

the court considered it important for the “extraordinary circumstances” determination that the prisoner stated that he

“had no knowledge of any limitations period prior to December 1998.” Whalem/Hunt, 233 F.3d at 1147 (internal quotation

marks omitted). In this case, Roy indicated that similarly he

was “not made aware of . . . the AEDPA.” Likewise, Kephart

asserted that he had had “no . . . notice of the AEDPA” either

from the prison library or from any other source, and that he

11878 ROY v. LAMPERT
“was not able to gain knowledge of the one year limitation

period for filing under [AEDPA]” until after he had filed his

state post-conviction petition and had been returned to Oregon. 

In addition to the two AEDPA-related reasons the Whalem/

Hunt court remanded for an evidentiary hearing there are also

other reasons present in Whalem/Hunt that suggest that Roy

and Kephart may have faced extraordinary circumstances.

While there was no evidence in Whalem/Hunt about the general condition of the library beyond the availability of

AEDPA materials, in this case there was evidence suggesting

that the problems related to AEDPA materials were part of a

series of problems with the Arizona law library.6 Kephart testified that he “had no access to current Oregon or federal law.

The CCA library consisted of only three outdated legal books,

which contained no information about the AEDPA . . . . At

no time during my imprisonment was there information provided . . . explaining any procedure to obtain legal information relevant to Oregon prisoners.” 

Other affidavits also suggest that Roy and Kephart did not

have access to much of a law library in Arizona. Douglas

Phaneuf, an inmate working as a law librarian in Arizona,

stated that “there was no Oregon case law.” Phaneuf also

stated that while “[i]t is possible that [correspondence with

lawyer] assistance was available . . . I was not aware of it.”

Thomas J. Jensen, another inmate working as a librarian at the

Arizona prison facility, stated that he did “not recall there

being any meaningful federal material in the Florence library

even after it had become established and obtained some

books.” 

6Of course, in order to assess whether Roy and Kephart have stated a

claim for an evidentiary hearing, we must consider their “good-faith allegation[s that] would, if true, entitle [them] to equitable tolling.” Laws, 351

F.3d at 919 (emphasis added). We recognize that there is a dispute about

the condition of the Arizona prison law library, which is why we believe

the district court should have ordered an evidentiary hearing. 

ROY v. LAMPERT 11879
B

While this evidence might suggest that this court could

simply find (on its own and without a remand) that Roy and

Kephart were entitled to equitable tolling, and that an evidentiary hearing is not necessary, we decline to follow that course

of action. There remain significant conflicts among the affidavits on material issues, and “[i]n a habeas case, when there

are only conflicting affidavits regarding the facts underlying

the issue of cause, the district court must hold an evidentiary

hearing.” Buffalo v. Sunn, 854 F.2d 1159, 1165 (9th Cir.

1988); see also id. (“A district court conducting federal

habeas review should not ordinarily attempt to resolve contested issues of fact based on affidavits alone unless there is

other evidence in the record dispositive of the issue or unless

the state court has made the relevant factual findings.”). 

For instance, regarding the question of the availability of

AEDPA in the Arizona prison law library, there were conflicting statements. Kephart stated that in Arizona there were “no

legal materials which described the AEDPA, and no other

notice of the AEDPA.” Phaneuf stated that he did “not know

if there was in fact federal material.” Jensen stated that there

were never “any meaningful federal materials in the Florence

library.” By contrast, Martinez, also a prison law-library

clerk, stated that AEDPA had “probably arrived” in 1996.

Martinez also testified that information about the AEDPA

statute of limitations had been posted, and the Federal Public

Defenders had provided prisoners with that information as

well. A representative from West Publishing indicated that the

relevant portions of AEDPA were in fact sent to the Arizona

prison facility. 

There is also much in dispute regarding other aspects of the

Arizona prison law library. While Trent Axen, the Library

Coordinator at the Oregon State Penitentiary, testified about

an elaborate series of materials available at the library in Arizona, and about a correspondence system permitting prisoners

11880 ROY v. LAMPERT
to request materials not in Arizona, the affidavits submitted

by the inmates in Arizona disagree with this on almost every

level.7

V

[21] Because we find that Roy and Kephart have made sufficient allegations regarding their diligence and the extraordinary circumstances they faced while at the Arizona prison, we

remand to the district court for an evidentiary hearing on their

equitable tolling claim.

PETITION GRANTED AND REMANDED. 

7Because we recognize that there are many conflicts among many of the

affidavits on many issues, we need not address Roy and Kephart’s claims

that we should disallow some of the affidavits because they are not based

on personal knowledge, pursuant to Federal Rule of Evidence 602. We

need not decide which specific affidavits satisfy that Rule’s requirements

because we decide that there are so many conflicts that the district court

should order an evidentiary hearing to gather new evidence and further

assess the comments made in the affidavits. 

ROY v. LAMPERT 11881