Larissa Schuster v. Deborah Johnson

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LARISSA SCHUSTER, No. 16-15604
Petitioner-Appellant, D.C. No.
1:12-cv-01482-AWI-SAB-HC
v.
DEBORAH K. JOHNSON, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted May 15, 2017
San Francisco, California
Before: McKEOWN and MURGUIA, Circuit Judges, and RUFE,** District Judge.
Petitioner Larissa Schuster appeals the district court’s dismissal of her
habeas petition as untimely. The district court granted Schuster’s request for a
certificate of appealability on the following question: “whether some extraordinary
circumstance prevented Petitioner from timely filing her federal habeas petition
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Cynthia M. Rufe, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
such that equitable tolling is warranted.” ER 341. We have jurisdiction pursuant to
28 U.S.C. § 1291 and § 2253. For the reasons that follow, we reverse and remand.
1. We review de novo whether equitable tolling is warranted under the
Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Fue v. Biter,
842 F.3d 650, 653 (9th Cir. 2016) (en banc). To be entitled to equitable tolling of
AEDPA’s one-year limitations period, a habeas petitioner must show “‘(1) that
[she] has been pursuing [her] rights diligently, and (2) that some extraordinary
circumstance stood in [her] way’ and prevented timely filing.” Holland v. Florida,
560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)). While simple miscalculation of a filing deadline by counsel is not grounds
for equitable tolling, id. at 651-52, “egregious attorney misconduct of all stripes
may serve as a basis for equitable tolling,” Luna v. Kernan, 784 F.3d 640, 649 (9th
Cir. 2015). Furthermore, “[a] number of circuits, including ours, have held that
affirmatively misleading a petitioner to believe that a timely petition has been or
will soon be filed can constitute egregious professional misconduct.” Luna, 784
F.3d at 647.
2. The one-day-late filing in this case was due to case mismanagement
that “transcend[ed] garden variety negligence and enter[ed] the realm of
‘professional misconduct[.]’” Id. at 646. The conduct of the organization Petitioner
retained to handle her habeas petition was “‘far enough outside the range of
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behavior that reasonably could be expected’ in the typical case that [it] may be
regarded as ‘extraordinary.’” Id. at 648 (quoting Baldayaque v. United States, 338
F.3d 145, 152 (2d Cir. 2003)). The organization affirmatively misled Schuster to
believe that a licensed attorney would file her petition and do so on time. In reality,
the organization was grossly mismanaged and none of its attorneys ever filed her
petition. See ER 267. Instead, on the eve of the deadline, the organization recruited
Schuster’s trial counsel—whose alleged ineffective assistance was in part the
subject of the habeas petition—to finalize and file the petition. ER 80. Schuster
stated that, but for the organization’s continued false assurances, she would have
filed the petition herself. ER 267.
3. Considering collectively the actions of the organization handling
Schuster’s case, Luna, 784 F.3d at 647, Schuster has shown egregious conduct
constituting extraordinary circumstances that stood in her way and prevented
timely filing, Holland, 560 U.S. at 649. Because Schuster has also shown
reasonable diligence in pursuing her rights—she secured the services of the
organization eleven months before her deadline and repeatedly inquired into the
status of her petition—she is entitled to equitable tolling of the AEDPA deadline.
See Holland, 560 U.S. at 653.
REVERSED and REMANDED.
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