George Gibbs v. Robert Legrand , 767 F.3d 879 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE W. GIBBS, No. 12-16859
Petitioner-Appellant,
D.C. No.
v. 2:11-cv-00750-
KJD-CWH
ROBERT LEGRAND, Warden;
ATTORNEY GENERAL FOR THE STATE OPINION
OF NEVADA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, Senior District Judge, Presiding
Argued and Submitted
March 13, 2014—San Francisco, California
Filed September 17, 2014
Before: Sidney R. Thomas, Richard C. Tallman,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
2 GIBBS V. LEGRAND
SUMMARY*
Habeas Corpus
The panel reversed the district court’s order dismissing a
habeas corpus petition as untimely, and remanded for
consideration of the petition on the merits.
The panel held that the petitioner’s attorney’s misconduct
was an extraordinary circumstance which directly caused the
petitioner not to learn that the time for him to file his federal
habeas petition had begun until the time was over – where
counsel did not inform the petitioner that state post-
conviction proceedings had ended, even though counsel had
pledged to do so, even though the petitioner wrote to his
counsel repeatedly for updates, and even though the time in
which to file a federal habeas petition was swiftly winding
down. The panel also held that the petitioner exercised
reasonable diligence in pursuit of his post-conviction rights
both before and after learning of the Nevada Supreme Court’s
denial of the appeal of his state post-conviction petition.
COUNSEL
Megan C. Hoffman (argued), Debra A. Bookout, and Ryan
Norwood, Assistant Federal Public Defenders, Las Vegas,
Nevada, for Petitioner-Appellant.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GIBBS V. LEGRAND 3
Victor-Hugo Schulze, II (argued), Senior Deputy Attorney
General, Las Vegas, Nevada, for Respondents-Appellees.
OPINION
BERZON, Circuit Judge:
This case arises from a prisoner’s vigorous pursuit of
post-conviction review in the face of egregious misconduct
from his court-appointed lawyers. We focus here on one
serious episode of attorney misconduct: The failure, despite
prisoner-petitioner George Gibbs’s repeated inquiries, to
inform Gibbs that the Nevada Supreme Court denied the
appeal of his state post-conviction petition. By the time
Gibbs learned the fate of his appeal, he had already missed
the one-year deadline for filing a federal habeas corpus
petition.
We hold that the attorney’s conduct amounted to client
abandonment, and that the district court erred by not
recognizing that such abandonment can, in certain
circumstances, constitute an extraordinary circumstance
warranting equitable tolling of the federal filing deadline.
Accordingly, we reverse the district court’s dismissal of
Gibbs’s petition and remand for consideration of the petition
on the merits.
I.
Gibbs was convicted by a Nevada jury for crimes ranging
from manufacture of a controlled substance to possession of
child pornography and received a life sentence with the
possibility of parole. The Nevada Supreme Court affirmed
4 GIBBS V. LEGRAND
his conviction on June 3, 2003. Two instances of attorney
misconduct, not directly relevant here, prevented Gibbs from
properly filing his state petition for post-conviction relief
(“PCR petition”) until 2007.1 That petition was rejected on
the merits, and Gibbs appealed to the Nevada Supreme Court.
Dayvid Figler was appointed to represent Gibbs on the PCR
appeal.
Relations between Gibbs and Figler quickly soured. In
November and December of 2008, Gibbs sent a series of
letters to Figler noting his frustration with Figler’s failure to
communicate with him. Figler did not respond to Gibbs’s
letters, and Gibbs lodged a complaint against Figler with the
Nevada State Bar. The State Bar forwarded the complaint to
Figler’s law firm, Bunin & Bunin, prompting Figler to reach
out to Gibbs. Gibbs, in turn, alerted the State Bar that Figler
was now “on board.” The Bar dismissed the complaint,
informing Gibbs that the “matter has been resolved.”
Figler filed Gibbs’s state PCR appeal with the Nevada
Supreme Court on August 12, 2009. On May 25, 2010, he
wrote to Gibbs on the letterhead of a new firm, Bailus, Cook
& Kelesis, promising to forward him “any receipt of notice
from [the] Supreme Court” (emphasis in original) and
1
First, Gibbs’s attorney on direct appeal refused to hand over Gibbs’s
files. Then, new counsel agreed to file Gibbs’s PCR petition but never did
so. Gibbs was not aware that PCR counsel did not file the promised
petition until the state court ruled that any further petitions were barred as
untimely because the first PCR petition was never filed. Gibbs appealed
the state court’s untimeliness ruling pro se, arguing that his attorney’s
misconduct constituted good cause to overcome the state procedural bar.
The Nevada Supreme Court agreed and, in November 2006, vacated the
state court’s judgment and remanded for consideration of Gibbs’s petition
on the merits.
GIBBS V. LEGRAND 5
inviting him to “send written correspondence to the above
address if you have any questions or concerns.” The letter
also stated, erroneously, that “the time for you to file post-
conviction relief has not yet started”; in fact, Gibbs was in the
midst of pursuing post-conviction relief.
In June 2010, the Nevada Supreme Court affirmed the
denial of Gibbs’s PCR petition. Despite his pledge to do so,
Figler did not forward Gibbs the notice from the Nevada
Supreme Court that the petition had been denied. In both
June and October of 2010, unaware that the Nevada Supreme
Court had issued its decision, Gibbs wrote to Figler
expressing his renewed frustration with the attorney’s lack of
communication and offering suggestions about how to
present his case to the Nevada Supreme Court. “I have not
heard from you in over 8 months,” Gibbs complained. “I
never got a response from you, asking you to add the
Melendez case to my opening brief. It was a big concern to
me that you look it over and respond to your thoughts of all
my effort. Figler did not reply.
On December 3, Gibbs wrote to the Nevada Supreme
Court requesting the docket sheet and explaining, “I can not
find my attorney of record.” On December 11, he wrote to
the Nevada State Bar in search of Figler’s address, phone
number and bar number.2 Two days later, on December 13,
he wrote a third letter to Figler, with suggestions for possible
oral argument. The next day, December 14, Gibbs received
the docket sheet from the court and discovered that his appeal
had been rejected six months earlier.
2
The current record does not indicate whether or when the State Bar
provided Gibbs Figler’s address, nor whether the December 13 letter was
correctly addressed.
6 GIBBS V. LEGRAND
Gibbs promptly took pen to paper to express his
“amazement” at Figler’s unethical conduct. “I have done
everything in my power to locate you to no avail. The
concern [be]came very serious so I wrote the Supreme Court
for a Docket Sheet.” He asked, “what do I do now[?]” and
requested that Figler address his concerns “with simple
communication.” Figler did not respond. On December 20,
Gibbs wrote to the Supreme Court again, requesting copies of
its order affirming the denial of his petition and the remittitur.
Finally, on February 7, 2011, Gibbs wrote to Figler
terminating him as counsel and requesting that he return
Gibbs’s documents within five days.3 “By failing to inform
me you have put me in a terrible position,” Gibbs wrote.
“[U]nskilled in law” and with “little access to a full law
library service,” he explained that he now faced the “daunting
task” of preparing his own federal habeas petition. Three
weeks later, on February 28, Gibbs’s sister acquired a
“banker’s box” of files from Figler. Gibbs mailed his federal
habeas petition on May 3, 2011, approximately sixty-five
days after his sister procured his files from Figler.
The Warden moved to dismiss, arguing that Gibbs’s
petition was untimely. Gibbs countered that his attorney’s
misconduct entitled him to equitable tolling such that the
petition was timely. The district court granted the motion to
dismiss, ruling that equitable tolling was not merited because
3
The record does not indicate how Gibbs discovered that Figler had
again switched law firms — he was now, apparently, at J.S.L. Law Firm.
Presumably by this point, the State Bar had provided the address in
response to Gibbs’s request. In any case, the record suggests that Figler’s
change of firms, without notice to Gibbs, made it particularly difficult for
Gibbs to contact him.
GIBBS V. LEGRAND 7
Gibbs had “not demonstrated that his counsel was . . .
incompetent,” but only that “he had trouble communicating
with the attorney and that he was not timely informed that his
appeal had been decided.” After the district court issued a
certificate of appealability on the equitable tolling question,
Gibbs brought this appeal.
II.
We review de novo the dismissal of a federal habeas
petition as untimely. Spitsyn v. Moore, 345 F.3d 796, 799
(9th Cir. 2003). “If the facts underlying a claim for equitable
tolling are undisputed, the question of whether the statute of
limitations should be equitably tolled is also reviewed de
novo. Otherwise, findings of fact made by the district court
are to be reviewed for clear error.” Id. (citation omitted)
(citing Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999)).
Under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), a state prisoner ordinarily has one year
from the date his state conviction becomes final to file a
habeas corpus petition in federal court. 28 U.S.C.
§ 2244(d)(1)(A). By statute, the limitations period is tolled
while a properly filed state post-conviction petition is
pending. Id. § 2244(d)(2).
Excluding the statutorily tolled period when Gibbs’s post-
conviction petition was before the Nevada courts, both
parties, and the district court, agree that Gibbs accrued 257
untolled days before the Nevada Supreme Court denied his
PCR appeal. Absent equitable tolling, then, Gibbs had 108
days to file his federal habeas petition, with the limitations
period expiring October 22, 2010. Gibbs did not file his
federal petition until May 3, 2011, 193 days late.
8 GIBBS V. LEGRAND
AEDPA’s one-year statute of limitations is subject to
equitable tolling. Holland v. Florida, 560 U.S. 631, 649
(2010). A litigant seeking equitable tolling bears the burden
of establishing two elements: (1) “‘that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way’ and prevented timely filing.”
Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
For Gibbs’s petition to be timely, he has to establish
equitable tolling through at least January 15, 2011.4 In
considering whether he had done so, we address the two
Holland requirements for equitable tolling in reverse order,
as the facts of this case lend themselves better to that
treatment.
A. Extraordinary Circumstances
Courts take a flexible, fact-specific approach to equitable
tolling. “[S]pecific circumstances, often hard to predict in
advance, could warrant special treatment in an appropriate
case.” Id. at 650; see also Whalem/Hunt v. Early, 233 F.3d
1146, 1148 (9th Cir. 2000) (en banc).
Consistent with the flexible approach, attorney conduct
compromising the filing of a timely federal habeas petition
4
At oral argument, the Warden objected for the first time to the district
court’s finding that statutory tolling ceased when the Nevada Supreme
Court’s remittitur issued on July 6, 2010, claiming instead that it ceased
when the decision was reached, on June 9, 2010. If equitable tolling is
warranted, it is warranted for the time period when, due to Figler’s
abandonment, Gibbs was unaware that the Nevada Supreme Court had
reached its decision. Thus, whether statutory tolling ended on June 9 or
July 6 is irrelevant to our disposition of this appeal; either date would be
within the equitable tolling period if one is warranted.
GIBBS V. LEGRAND 9
can constitute the requisite “extraordinary circumstance” in
some circumstances but not others. Holland held that
“garden variety claim[s] of excusable neglect” — such as
“simple miscalculation” of time limits — do not constitute an
extraordinary circumstance. 560 U.S. at 651–52 (internal
quotation marks omitted). But attorney misconduct can be so
egregious as to create an “extraordinary circumstance,”
justifying equitable tolling. Id. at 652. In a concurring
opinion, Justice Alito explained his understanding of the logic
behind this framework, reasoning that, “the principal
rationale for disallowing equitable tolling based on ordinary
attorney miscalculation is that the error of an attorney is
constructively attributable to the client and thus is not a
circumstance beyond the litigant’s control.” Id. at 657 (Alito,
J., concurring).
Maples v. Thomas clarified Holland’s distinction between
“garden variety” attorney negligence and egregious attorney
misconduct, drawing on Justice Alito’s Holland concurrence
and casting the distinction in terms of agency principles.5
132 S. Ct. 912, 923–24 (2012). Maples explained that while
agency law binds clients, including federal habeas petitioners,
to their attorneys’ negligence, “a client cannot be charged
with the acts or omissions of an attorney who has abandoned
him.” Id. at 924. An attorney’s failure to communicate about
5
Maples involved cause for procedural default rather than entitlement
to equitable tolling, but the Supreme Court saw “no reason” why the
distinction between attorney negligence and attorney abandonment should
not hold in both contexts. 132 S. Ct. at 924 n.7. Because we hold that
Figler’s conduct amounted to abandonment of his client under the standard
announced in Maples, we do not have occasion to consider whether
attorney misconduct which stops short of effective abandonment could, in
appropriate instances, constitute an extraordinary circumstance supporting
equitable tolling.
10 GIBBS V. LEGRAND
a key development in his client’s case can, therefore, amount
to attorney abandonment and thereby constitute an
extraordinary circumstance. Maples, 132 S. Ct. at 923–24;
see also Towery v. Ryan, 673 F.3d 933, 942–43 (9th Cir.
2012).
1.
So, contrary to the district court’s analysis of the
circumstances here, it was absolutely critical that Gibbs “had
trouble communicating with [his] attorney” and “was not
timely informed that his appeal had been decided”: If Gibbs’s
attorney effectively abandoned him, Gibbs cannot be charged
with the knowledge that the Nevada Supreme Court had
denied his appeal.
Failure to inform a client that his case has been decided,
particularly where that decision implicates the client’s ability
to bring further proceedings and the attorney has committed
himself to informing his client of such a development,
constitutes attorney abandonment. See Mackey v. Hoffman,
682 F.3d 1247, 1253 (9th Cir. 2012). Attorneys are generally
required to “perform reasonably competent legal work, to
communicate with their clients, to implement clients’
reasonable requests, [and] to keep their clients informed of
key developments in their cases.” Holland, 560 U.S. at
652–53. Gibbs’s attorney failed on all but the first count.6
6
After reciting these general standards, Holland remanded as to whether
there were extraordinary circumstances, because the district court had not
reached the issue. But Holland identified as “serious instances of attorney
misconduct” possibly constituting extraordinary circumstances, several
factors: that Holland’s attorney “failed to file Holland’s federal petition on
time”; did not “do the research necessary to find out the proper filing
date”; “failed to inform Holland in a timely manner about the crucial fact
GIBBS V. LEGRAND 11
Our case law confirms that Figler’s behavior in failing to
notify Gibbs of the Nevada Supreme Court’s decision
constituted abandonment, and thereby created extraordinary
circumstances sufficient to justify equitable tolling. Busby,
for example, held that extraordinary circumstances existed
where counsel failed to timely file his client’s habeas petition
despite having promised to do so, even though the petitioner
hired him over a year before the AEDPA deadline, paid him
$20,000, gave him his files and repeatedly inquired about his
case. 661 F.3d at 1012. Likewise, Spitsyn held that an
attorney’s failure to file a habeas petition at all, despite being
hired almost a year before the AEDPA deadline, was
sufficiently egregious to constitute extraordinary
circumstances, where Spitsyn contacted him three times and
filed two complaints with the state bar. 345 F.3d at 798, 801.
Relatedly, we recognized in Ramirez v. Yates that, “‘a
prisoner’s lack of knowledge that the state courts have
reached a final resolution of his case can provide grounds for
equitable tolling if the prisoner has acted diligently in the
matter.’” 571 F.3d 993, 997 (9th Cir. 2009) (quoting
Woodward v. Williams, 263 F.3d 1135, 1143 (10th Cir.
2001)). Although that case dealt with a pro se petitioner who
should have received notification directly from the court, it is
instructive here. If Gibbs had been proceeding pro se, he
would have been entitled to notification from the court, and
the court’s failure to mail him notice of its denial of his PCR
petition would have been an extraordinary circumstance
justifying equitable relief. “Because [Figler] failed to notify
that the Florida Supreme Court had decided his case”; and “failed to
communicate with his client over a period of years,” despite Holland’s
repeated communications and requests that his lawyer do all of these
things. 560 U.S. at 652.
12 GIBBS V. LEGRAND
the court of his intention to withdraw, [Gibbs] was deprived
of the opportunity to proceed pro se and to personally receive
docket notifications from the court.” Mackey, 682 F.3d at
1253. Here, Gibbs’s lack of actual notice was occasioned by
the breach and abandonment of his attorney, but the result
was the same: Gibbs did not know that the federal limitations
clock had started ticking. Furthermore, as counsel had
expressly promised Gibbs that he would forward him the
court’s notice of decision, it is as true here as it was in
Ramirez that the petitioner’s “ignorance of the limitations
period was caused by circumstances beyond the party’s
control.” Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th
Cir. 2001) (en banc).
These cases stand in stark contrast to Towery, where the
attorney’s alleged negligence did not rise to the level of
abandonment or egregious misconduct because he actually
represented his client and filed a habeas petition, albeit an
imperfect one. See 673 F.3d at 936. We reasoned that
Towery’s attorney “diligently pursued habeas relief on
Towery’s behalf, although omitting a colorable constitutional
claim from Towery’s amended petition.” Id. at 942. As the
attorney continued as Towery’s legal representative, even if
his performance was inadequate, his conduct did not
constitute abandonment of his client and did not justify the
conclusion that extraordinary circumstances existed. Id.
In contrast, here, Figler failed to communicate with Gibbs
“over a period of years,” despite repeated efforts by Gibbs to
engage him. Holland, 560 U.S. at 652. That Figler briefly
reappeared after the Nevada State Bar forwarded him Gibbs’s
formal complaint and did bring Gibbs’s PCR appeal does not
excuse his prolonged absence and, most critically, his failure
to inform Gibbs when the state PCR proceedings concluded.
GIBBS V. LEGRAND 13
Moreover, Figler went out of his way to guarantee Gibbs
that he would update him about the case: “Upon any receipt
of notice from Supreme Court on your case we will forward
it to you by mail. Please send written correspondence to the
above address if you have any questions or concerns.”
(Emphasis in original). Gibbs had questions and concerns
and wrote to Figler several times at the address provided. But
Figler did not respond, nor did he alert Gibbs that the Nevada
Supreme Court had denied his appeal. In fact, Figler had
moved to a new firm; his failure to provide Gibbs with an
updated address hampered Gibbs’s ability to communicate
with him. Such egregious conduct is not analogous, as the
Warden would have it, to the conduct in Towery, and is
amenable to only one conclusion: Figler was not serving as
Gibbs’s agent “in any meaningful sense of that word.”
Maples, 132 S. Ct. at 923 (quoting Holland, 560 U.S. at 659
(Alito, J., concurring)) (internal quotation marks omitted).
The Warden contends that Gibbs “attempts . . . to lower
the governing standard” because, overall, Gibbs’s attorney
was less negligent than Holland’s. This argument
misconstrues Holland. Nothing in that case suggests that the
Court intended Holland’s attorney’s performance to serve as
a floor for the extraordinary circumstances prong of equitable
tolling. The only guidance the Court gave as to what would
not satisfy that prong was that courts should exclude “garden
variety claim[s] of excusable neglect” such as a “simple
miscalculation.” Holland, 560 U.S. at 651 (internal quotation
marks omitted). That Figler may have acted less egregiously
than Holland’s counsel does not compel the conclusion that
Figler’s behavior was not egregious, or that his negligence
was “garden variety.”
14 GIBBS V. LEGRAND
We therefore conclude that Figler’s egregious conduct
amounted to client abandonment, such that Gibbs is not
responsible for the fact that he did not learn of the Nevada
Supreme Court’s decision until December 14, 2010. See
Rudin v. Myles, No. 12-15362, slip op. at 25 (9th Cir. Sept.
10, 2014).7 We next consider whether Figler’s effective
abandonment and Gibbs’s resulting lack of notice of the
Nevada Supreme Court’s decision caused Gibbs to miss the
federal filing deadline. See Sossa v. Diaz, 729 F.3d 1225,
1229 (9th Cir. 2013).
2.
By the time Gibbs learned that his state post-conviction
proceeding was complete, the federal deadline had passed.
Although it was technically possible for Gibbs to write to the
Nevada Supreme Court daily to ask about the status of his
state PCR petition, he had no obligation or reason to do so,
given that he was represented and had, moreover, been
specifically promised by his lawyer prompt notice of any
decision. “[This court has] granted equitable tolling in
circumstances where it would have technically been possible
for a prisoner to file a petition, but a prisoner would have
7
We note a striking feature of Rudin: the very same attorney who
abandoned Gibbs, Dayvid Figler, also abandoned Rudin. See Rudin, No.
12-15362, slip op. at 10, 24. The court in Rudin found equitable tolling
warranted on that basis, just as we do. Id. at 25. Rudin’s ultimate holding,
that even tolling the entire period of Figler’s involvement was not
sufficient to render the federal habeas petition timely in that case, relied
on its conclusion that Rudin was not diligent in pursuing her rights once
counsel had been appointed to replace Figler. See id. at 27-28. Because
Gibbs was diligent during and after Figler’s involvement in this case, our
analysis is entirely consistent with Rudin. Figler’s abandonment of both
Gibbs and Rudin is deeply troubling, to say the least.
GIBBS V. LEGRAND 15
likely been unable to do so.” Harris v. Carter, 515 F.3d
1051, 1054 n.5 (9th Cir. 2008).8 By failing to notify Gibbs of
the Nevada Supreme Court’s decision, Figler created a
situation in which Gibbs, despite his diligence in tracking
down Figler, was extremely unlikely, acting perfectly
reasonably, to meet the AEDPA deadline. Our case law
requires nothing more to establish that the extraordinary
circumstance caused the failure to meet the federal deadline.
See Sossa, 729 F.3d at 1236; Harris, 515 F.3d at 1054 n.5.
Thus, as a direct result of Figler’s abandonment, Gibbs
did not learn that the state PCR process was over until after
the federal statute of limitations expired. This effective
abandonment, resulting in lack of actual notice, satisfies the
“extraordinary circumstances” prong of equitable tolling at
least through December 14, 2010, when Gibbs learned of the
Nevada Supreme Court’s decision.
To establish that his petition was filed timely, Gibbs must
demonstrate that Figler’s conduct continued to stand in his
way and prevent timely filing for at least an additional month,
through January 15, 2011. We conclude that he has done so.
8
“After Holland, we have continued to rely on our previous equitable
tolling cases in which we held that equitable tolling is available only when
extraordinary circumstances beyond a prisoner’s control make it
impossible to file a petition on time and the extraordinary circumstances
were the cause of the prisoner’s untimeliness.” Sossa, 729 F.3d at 1229
(alterations, emphasis and internal quotation marks omitted). Consistent
with Holland, our cases have applied this ‘impossibility’ standard
leniently, rejecting a literal interpretation. See id. at 1236; Harris, 515
F.3d at 1054 n.5; Lott v. Mueller, 304 F.3d 918, 924–25 (9th Cir. 2002);
see also Rudin, No. 12-15362, slip op. at 23 (applying impossibility
standard to a circumstance in which timely filing was not literally
impossible).
16 GIBBS V. LEGRAND
First, until Gibbs definitively terminated the attorney-
client relationship in February 2011, Gibbs may reasonably
have believed that Figler was going to assist him in federal
court. Gibbs intended to file a federal habeas petition and
relied on Figler for advice as to how to do so despite the
timeliness bar he now faced, indicating that Figler may have
given Gibbs reason to believe that Figler would represent him
in federal proceedings. The same day Gibbs learned of the
Nevada Supreme Court’s decision, he wrote to Figler, asking
“what do I do now[?]” and requesting that Figler “please
address [his] concerns with simple communication.” It was
not until Figler again failed to respond that Gibbs sent Figler
correspondence officially terminating Figler as his
representative and demanding return of his legal files.
Second, even if Gibbs did not reasonably believe that
Figler’s representation would continue, an attorney who
ceases to represent a client has certain continuing obligations
to his client, including taking “steps to the extent reasonably
practicable to protect a client’s interests.” Nev. R. Prof.
Conduct 1.16(d). Figler therefore should have been
protecting Gibbs’s interests, including preserving his right to
seek federal habeas review of his conviction. Not only did
Figler not protect Gibbs’s right to have his conviction
reviewed, Figler’s failure to notify Gibbs of his change in
firms, lack of response to Gibbs’s inquiries, and retention of
Gibbs’s legal files, obstructed Gibbs’s ability to timely file
his petition. As to the last factor, “we have previously held
that a complete lack of access to a legal file may constitute an
extraordinary circumstance, and that it is ‘unrealistic to
expect a habeas petitioner to prepare and file a meaningful
petition on his own within the limitations period without
access to his legal file.’” Ramirez, 571 F.3d at 998 (quoting
Espinoza-Matthews v. California, 432 F.3d 1021, 1027–28
GIBBS V. LEGRAND 17
(9th Cir. 2005)). And the Nevada professional rule which
required Figler to take “steps to the extent reasonably
practicable to protect a client’s interests,” indicates that one
such step may be “surrendering papers to which . . . the client
is entitled.” Nev. R. Prof. Conduct 1.16(d).
The Warden rejects the lack of files as a relevant
consideration, pointing to evidence that Figler sent Gibbs
copies of the state post-conviction briefs in May 2010. But,
as Gibbs’s federal habeas petition indicates, the claims in the
federal habeas petition are not identical to the post-conviction
claims Gibbs pursued in state court. For instance, the federal
petition includes a due process claim not present in the state
post-conviction petition.
Moreover, while Gibbs knew that the Nevada Supreme
Court had denied his petition, he did not know if they did so
in a reasoned decision. Promptly after receiving the docket
reflecting that his petition was denied, Gibbs wrote to the
Nevada Supreme Court to request copies of its order
affirming the denial of his petition. It is not clear from the
record when the Court responded by sending a copy of its
order to Gibbs. However, until it did so, Gibbs could not
realistically file a federal petition. Thus, Figler’s
abandonment continued to affect Gibbs for this reason, as
well.
For these reasons, we conclude that Gibbs has established
that Figler’s abandonment was an extraordinary circumstance
obstructing his ability to file his federal petition through at
least January 15, 2011. We next consider whether Gibbs has
acted with diligence in attempting to bring this habeas
petition to federal court.
18 GIBBS V. LEGRAND
B. Diligence
Holland reaffirmed that the standard of diligence required
of a petitioner seeking equitable tolling is “reasonable,” not
“maximum feasible” care. 560 U.S. at 653 (internal quotation
marks omitted). “[R]easonable diligence does not require an
overzealous or extreme pursuit of any and every avenue of
relief.” Doe v. Busby, 661 F.3d 1001, 1015 (9th Cir. 2011).
Rather, “[i]t requires the effort that a reasonable person might
be expected to deliver under his or her particular
circumstances.” Id.
The district court found that Gibbs was not sufficiently
diligent to merit equitable tolling, because Gibbs: (1) “could
have, but did not, contact” the Nevada Supreme Court
regarding his case between May and December of 2010;
(2) “could have, but apparently did not, begin to prepare his
federal habeas petition once he received copies of his post-
conviction appellate briefs” in May of 2010; (3) unnecessarily
“waited two months” after learning that his appeal had been
denied before requesting that Figler return his files;
(4) “could have, but apparently did not, have his sister pick
up his files from the attorney’s office” in less than three
weeks from his request; and (5) could have filed his habeas
petition sooner after learning of the state court decision. We
address each reason in turn.
1. As to the first point, Gibbs reasonably relied on his
attorney during this period, and so was adequately diligent.
Holland, Maples, Spitsyn and Busby all illustrate the basic
GIBBS V. LEGRAND 19
principle that a petitioner’s reasonable reliance on an attorney
should not prejudice his opportunity to file a habeas petition.9
In Busby, where the attorney promised — and then failed
— to file a habeas petition on his client’s behalf, and the
client relied on his absent attorney for four years before
eventually filing a late petition pro se, this court held the
petitioner’s reliance reasonable. 661 F.3d at 1009–10, 1015.
“Even had [the petitioner] known his attorney had not
handled a habeas petition before, his reliance would still have
been reasonable,” the court held. Id. at 1015. “[A]
reasonable litigant in [the petitioner’s] situation who is
represented by experienced counsel, if asked about the status
of his or her lawsuit, would be justified in replying, ‘My
lawyer is handling it.’” Id. So, too, here.
After Figler wrote to him in May 2010, Gibbs wrote to
Figler three times before contacting the Nevada Supreme
Court in December of that year. He had no reason to contact
the court earlier. Figler had assured him that he would
perform the simple task of forwarding the Nevada Supreme
Court’s notice upon receipt. And although Figler had
abandoned Gibbs for periods before, he had also stepped up
to the plate in time to fulfill his legal duties when contacted
by the State Bar. Moreover, it was Figler’s ethical duty to
take “steps to the extent reasonably practicable to protect
[Gibbs’s] interests” if he had ceased representing him, Nev.
R. Prof. Conduct 1.16(d), and, if so, to notify the court so that
the court would send its disposition to Gibbs rather than
Figler, Nev. R. App. P. 3C(b)(3). See Mackey, 682 F.3d at
1253. In light of these circumstances, we have no trouble
9
Of course, reliance on an attorney must be “reasonable.” See LaCava
v. Kyler, 398 F.3d 271, 277–78 (3d Cir. 2005).
20 GIBBS V. LEGRAND
concluding that Gibbs acted with reasonable diligence in
discovering, albeit after the untolled federal filing deadline
had run, the Nevada Supreme Court’s denial of his petition.
2. The notion that Gibbs should have prepared his own
habeas petition between June and December 2010, even while
he believed his Nevada Supreme Court case was still pending
and many of his federal claims therefore unexhausted, is no
stronger. To expect Gibbs to have done so improperly raises
the standard from “reasonable” to “maximum feasible”
diligence. Holland, 560 U.S. at 653 (internal quotation marks
and citations omitted).
Moreover, the Warden is mistaken that, “[i]t would have
been a ten-minute exercise” for Gibbs to simply slap a new
coversheet on either his own pro se brief from 2006 or
Figler’s brief to the Nevada Supreme Court “and submit it as
a § 2254 petition.” Even if Gibbs had access to these
materials and was “fully informed of the precise legal issues
to be raised in a 2254 petition,” as the Warden contends,
converting a state court brief to a federal habeas petition is
not an automatic undertaking. Besides the obvious necessity
of removing references to state case law and authority, and
the federal requirement of alleging exhaustion of state
remedies, it appears that local rules required Gibbs, now a pro
se litigant, to file his petition on a form provided by the
district court. D. Nev. LSR V.3-1, available at
www.nvd.uscourts.gov (last visited 7/30/2014). In light of
the changes of form and substance Gibbs had to make to
convert his state pleadings to a proper federal petition, the
Warden’s argument is inapt.
In sum, Busby specifically rejected the suggestion that a
“represented petitioner [should] proceed on a dual track with
GIBBS V. LEGRAND 21
his own petition.” 661 F.3d at 1014. The Warden offers no
good reason why this case compels a shift in course.
3. Nor, for reasons already discussed, was it unreasonable
for Gibbs to wait two months before demanding Figler return
his files. Gibbs wrote to Figler the day he learned his PCR
appeal had been denied, asking for counsel. Gibbs begged
Figler to respond and assist him; when Figler did not do so,
Gibbs terminated him and insisted on the return of his files.
4. & 5. Finally, the Warden contends that Gibbs is not
entitled to equitable tolling, because it took his sister three
weeks to pick up his files from Figler and because, by taking
so long to file his federal petition after learning of the Nevada
Supreme Court’s decision, he failed to act diligently. We
disagree with this assessment based on the undisputed facts
in the record, and also because of the outsized importance the
Warden attributes to Gibbs’s actions after the extraordinary
circumstance occasioned by Figler’s misconduct was lifted.
Holland did stress the petitioner’s remarkable diligence
in filing his habeas petition the day after he learned that he
had missed the AEDPA deadline. 560 U.S. at 639. Similarly,
in Busby, the court deemed the petitioner diligent where, after
four years of reliance on his attorney and a six-month delay
in recovering his files, he submitted his habeas petition in ten
days. 661 F.3d at 1015. In Spitsyn, the court remanded on
the question of diligence because it was not clear why the
petitioner waited over 170 days after receiving his files to
submit his petition. 345 F.3d at 802. And in Lott, the court
remanded on the extraordinary circumstances prong, but
noted that the petitioner might have been able to file within
the statute of limitations despite the obstacle to filing.
304 F.3d at 923. Finally, in Pace, the Supreme Court denied
22 GIBBS V. LEGRAND
the petitioner’s request for equitable tolling, in part on the
basis of a five-month delay in filing the federal petition after
the state post-conviction proceedings became final. 544 U.S.
at 419.
We note some tension between examining a petitioner’s
diligence after the lifting of an obstacle to timely filing, and
the stop-clock rule established by an en banc panel of this
Court in Socop-Gonzalez, 272 F.3d at 1195–96. Socop-
Gonzalez rejected the approach to equitable tolling wherein
courts consider whether a claimant should have been
expected to file his lawsuit within the amount of time left in
the statute of limitations, after an extraordinary circumstance
barring filing was lifted. Id. Instead, “the event that ‘tolls’
the statute simply stops the clock until the occurrence of a
later event that permits the statute to resume running.” Id. at
1195.
The Socop-Gonzalez rule is fully in line with AEDPA’s
aim of encouraging the exhaustion of state remedies without
eliminating federal habeas relief. See Holland, 560 U.S. at
648–49. Requiring a degree of diligence after an
extraordinary circumstance ceases when that degree of
diligence would not otherwise have been required risks
infringing the statutory right to habeas corpus review; it also
“arguably usurps congressional authority . . . by substituting
[the court’s] own subjective view of how much time a
plaintiff reasonably needed to file suit.” Socop-Gonzalez,
272 F.3d at 1196. Socop-Gonzalez’s “stop-clock” holding
remains the law in our circuit and applies here. That rule
prohibits courts from constraining litigants to a judicially
imposed filing window, and warns against imposing
additional diligence requirements on recipients of equitable
tolling.
GIBBS V. LEGRAND 23
Courts may, however, consider a petitioner’s diligence,
after an extraordinary circumstance has been lifted, as one
factor in a broader diligence assessment. See, e.g., Pace,
544 U.S. at 419. By requiring those seeking equitable tolling
to show they exercised reasonable diligence, we “ensure that
the extraordinary circumstances faced by petitioners . . . were
the cause of the tardiness of their federal habeas petitions.”
Lampert, 465 F.3d at 973. “‘[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.’” Spitsyn, 345 F.3d at 802 (alteration
in original) (quoting Valverde v. Stinson, 224 F.3d 129, 134
(2d Cir. 2000)).
Because it is most relevant to the causation question, we
are primarily concerned with whether a claimant was
“diligent in his efforts to pursue his appeal at the time his
efforts were being thwarted.” Lampert, 465 F.3d at 970–71
(emphasis in original). In other words, diligence during the
existence of an extraordinary circumstance is the key
consideration. Also relevant is whether petitioners “pursued
their claims within a reasonable period of time before the
external impediment . . . came into existence.” Id. at 972; see
also Pace, 544 U.S. at 419.
Diligence after an extraordinary circumstance is lifted
may be illuminating as to overall diligence, but is not alone
determinative. This conclusion draws not only on the
obvious inference that diligence after the fact is less likely to
be probative of the question of whether the extraordinary
circumstance caused the late filing, but also from Socop-
Gonzalez’s recognition that courts should not take it upon
24 GIBBS V. LEGRAND
themselves to decide how much time a claimant needs to file
a federal case.
Examining the record in view of the weight afforded these
considerations, we observe that Gibbs’s diligence dates back
for a decade. He sought out counsel, appealed pro se the
denial of his state PCR petition on timeliness grounds, wrote
to his attorneys frequently regarding his appeals, and when
necessary, wrote directly to the State Bar and the Nevada
Supreme Court. The Warden refers to Gibbs as “hysterical[]”
because, at one point in 2008, he sent four letters to Figler
over several weeks. Given the circumstances — Gibbs’s
awareness that he stood to lose his opportunity to challenge
a life sentence — this behavior is more aptly characterized as
“diligent.”
Most importantly, Gibbs was diligent during the time that
Figler’s abandonment and failure to inform him of a critical
development in his case created an extraordinary
circumstance keeping him from filing a timely federal
petition. One month after Figler wrote to assure Gibbs all
was well with his case, Gibbs wrote to Figler, asking him to
supplement the briefing with new case law and to stay in
touch. Several months later Gibbs wrote to Figler again,
asking why Figler did not respond to his last letter and
expressing a desire to discuss strategy for oral argument
before the Nevada Supreme Court. Gibbs also reached out to
both the State Bar and state Supreme Court.
After he learned of the state court decision, Gibbs
immediately wrote to Figler. He promptly asked the Nevada
Supreme Court for a copy of the order denying his PCR
appeal. After he did not hear back from Figler, he fired him
and demanded return of his files. And even without knowing
GIBBS V. LEGRAND 25
anything about what went on during the three weeks it took
Gibbs’s sister to retrieve the files from Figler, three weeks is
a reasonable time in which to have contacted Figler,
ascertained his availability, and arranged to pick up the files.
After terminating Figler and receiving his files, Gibbs
filed a pro se habeas petition in sixty-five days’ time. In
Espinoza-Matthews, we granted equitable tolling because the
petitioner “had only slightly over a month with his legal file
to try to prepare a proper petition.” 432 F.3d at 1028. That
Gibbs took slightly more than two months to prepare his
federal habeas petition — his “single opportunity for federal
habeas review of the lawfulness of his imprisonment” — after
diligently pursuing his rights for ten years, does not undercut
his overall record of diligence. Holland, 560 U.S. at 653.
Taken as a whole, the record provides ample evidence of
Gibbs’s persistent diligence over a period of ten years, often
in the face of utter disregard by those charged with
representing him. We therefore conclude that Gibbs acted
with reasonable diligence both before and after learning of
the Nevada Supreme Court’s decision, thereby satisfying the
first prong of the Holland equitable tolling inquiry.
III.
Gibbs’s counsel did not inform him that state post-
conviction proceedings had ended, even though counsel had
pledged to do so, even though Gibbs wrote to his counsel
repeatedly for updates, and even though time in which to file
a federal habeas petition was swiftly winding down. As a
direct result, Gibbs did not learn that the time for him to file
his federal petition had begun until the time was over. We
conclude that his attorney’s misconduct was an extraordinary
26 GIBBS V. LEGRAND
circumstance which caused Gibbs’s inability to timely file his
federal petition. We are also satisfied that Gibbs exercised
reasonable diligence in pursuit of his post-conviction rights.
For these reasons, the judgment of the district court is
REVERSED and the matter REMANDED for proceedings
not inconsistent with this opinion.