¶1dissenting:
¶2I respectfully dissent. I would hold that Young, a pro se litigant navigating the labyrinth of state and federal procedures, is entitled to an evidentiary hearing on his claim that he was denied access to his files and correspondence.
¶3As the majority recognizes, Young is entitled to tolling if he can justify the delay between the denial of his first state habeas petition and the subsequent filings of his second and third habeas petitions. See Evans v. Chavis, 546 U.S. 189, 192-93, 126 S.Ct. 846, 163 L.Ed.2d 684 (2006). Young’s second and third habeas petitions differ from his first in two significant respects: they include Young’s medical records, and they include the decision of the California Superior Court disposing of his first petition. Young’s first petition was denied by the Superior Court in part because he failed to prove he had been medicated at the time of his plea. Shortly after the denial of reconsideration of the Superi- or Court’s denial of his first petition, Young requested the necessary medical records. It is important to know exactly when he received these records, because the length of time for which his prison transfers deprived him of access to them is critical to determining whether he is entitled to tolling.
¶4Young did, in both the state court and district court proceedings, allude to the fact that constant transfers between facilities may have deprived him of access to his files and records. Although he did not raise this claim with a great deal of clarity or support, there is nothing to suggest that this was due to a “lack of diligence.” See Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (“[A] failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel”). Since Young appeared pro se both in state court and before the district court, his filings must be liberally construed. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).
¶5Because I would hold that Young is entitled to an evidentiary hearing on the issue of whether denial of access to his medical records excuses the delay between the filing of his first petition and the subsequent filings, I respectfully dissent.