Benito Luna v. Scott Kernan

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BENITO JULIAN LUNA, No. 12-17332
Petitioner-Appellant,
D.C. No.
v. 2:04-cv-00627-MCE-GGH
SCOTT KERNAN,
Respondent-Appellee. OPINION
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Argued and Submitted
November 19, 2014—San Francisco, California
Filed April 28, 2015
Before: Ronald M. Gould, Paul J. Watford,
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Watford
2 LUNA V. KERNAN
SUMMARY*
Habeas Corpus
The panel vacated the district court’s judgment dismissing
as time-barred a state prisoner’s federal habeas petition and
remanded in a case in which the prisoner contends that his
lawyer’s misconduct provides a basis for equitable tolling of
the statute of limitations.
The panel held that the prisoner’s counsel’s actions
represent egregious professional misconduct amounting to an
extraordinary circumstance that prevented the prisoner from
filing his federal habeas petition on time, where counsel
voluntarily dismissed for no good reason the prisoner’s pro
se habeas petition containing exhausted and unexhausted
claims, misled the prisoner to believe that a fully exhausted
federal petition would be filed “shortly,” missed the one-year
deadline for filing a new petition, and led the prisoner to
believe for another six-plus years that litigation of his federal
petition was moving toward a hearing on the merits. The
panel wrote that this court’s cases holding that egregious
attorney misconduct may serve as a basis for equitable
tolling, even if the misconduct falls short of abandonment,
remain good law.
The panel remanded for the district court to determine in
the first instance, after conducting an evidentiary hearing if
necessary, whether the prisoner diligently pursued his rights
through the date of filing.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
LUNA V. KERNAN 3
COUNSEL
Barry Morris (argued), Walnut Creek, California, for
Petitioner-Appellant.
Laura Wetzel Simpton (argued), Deputy State Attorney
General; Kamala D. Harris, Attorney General; Michael P.
Farrell, Senior Assistant Attorney General; Carlos A.
Martinez, Supervising Deputy Attorney General; Jamie A.
Scheidegger, Deputy Attorney General, California
Department of Justice, Sacramento, California, for
Respondent-Appellee.
OPINION
WATFORD, Circuit Judge:
Benito Luna is a California state prisoner serving a life
sentence for first-degree murder and attempted robbery. He
filed a petition for writ of habeas corpus in federal court more
than six years after the statutory filing deadline had passed.
To avoid the time bar, he invokes the doctrine of equitable
tolling, which allows a court to suspend the running of the
statute of limitations in certain circumstances. In this case,
Luna contends that his lawyer’s professional misconduct
provides a basis for equitable tolling. We are asked to decide
whether the district court correctly rejected that contention.
I
Because claims for equitable tolling are inherently fact-
intensive, we must begin with a fairly detailed description of
the facts underlying Luna’s claim.
4 LUNA V. KERNAN
Luna’s state-court convictions became final on December
30, 2003. Under the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), Luna had one year from that
date to file his federal habeas petition, subject to statutory
tolling for any period during which a “properly filed”
application for state post-conviction relief was pending.
28 U.S.C. § 2244(d)(2). Luna filed a pro se federal habeas
petition well ahead of time, on March 29, 2004. He filed the
petition pro se because the Constitution does not grant
prisoners a right to appointed counsel in post-conviction
proceedings, see Lawrence v. Florida, 549 U.S. 327, 336–37
(2007), and Luna could not afford to hire a lawyer on his
own. Magistrate judges have the discretion, however, to
appoint counsel for indigent state prisoners like Luna
whenever the judge “determines that the interests of justice so
require.” 18 U.S.C. § 3006A(a)(2)(B).
The magistrate judge assigned to Luna’s case determined
that, given the complexity of the legal issues involved, the
interests of justice required appointment of counsel.
Ordinarily, that’s a good thing for someone in Luna’s shoes.
“Sadly” though, as the magistrate judge later remarked, in
this case Luna “may have been better off without counsel.”
Luna’s appointed counsel, Joseph Wiseman, assumed his
duties on June 7, 2004. The representation began well
enough. At a status conference held on July 15, 2004, the
magistrate judge agreed to stay Luna’s federal habeas petition
and hold it in abeyance so that Luna could complete the
exhaustion process in state court. Only one of the claims
presented in Luna’s pro se petition had been fully exhausted,
which meant Luna would need to present the remaining
claims to the California courts before the district court could
consider them. This stay-and-abeyance procedure would
LUNA V. KERNAN 5
have allowed Luna to return to state court to complete the
exhaustion process while preserving the timely filing date of
his original pro se petition.
Luna had started the exhaustion process even before
Wiseman’s appointment. On April 1, 2004, he filed a pro se
habeas petition in the state trial court raising each of the
unexhausted claims. The state court denied that petition on
May 6, 2004. To complete the exhaustion process, Wiseman
needed to promptly file a habeas petition raising the same
claims in the California Court of Appeal and, if that court
denied relief, file essentially the same petition in the
California Supreme Court.
Rather than proceed immediately with those tasks,
Wiseman returned to federal court. On August 12, 2004,
despite the magistrate judge’s earlier agreement to stay
proceedings in federal court while Luna exhausted his claims
in state court, Wiseman filed a motion requesting voluntary
dismissal of Luna’s pro se federal habeas petition. Wiseman
sent Luna a copy of the motion the same day. Wiseman’s
motion stated that all of Luna’s claims remained
unexhausted, a fact that, if true, might have justified dismissal
of the petition and precluded a stay and abeyance. See Rhines
v. Weber, 544 U.S. 269, 275–77 (2005); Rasberry v. Garcia,
448 F.3d 1150, 1154 (9th Cir. 2006). But Wiseman was
wrong—one of the claims raised in Luna’s pro se petition had
been fully exhausted, so a stay was available. Nonetheless,
because motions for voluntary dismissal are automatically
granted, see Fed. R. Civ. P. 41(a), the magistrate judge
dismissed Luna’s pro se petition without prejudice and
directed the clerk of court to close the case. The clerk did so
on September 14, 2004.
6 LUNA V. KERNAN
On September 28, 2004, Wiseman took the next step
toward completing the exhaustion process by filing a habeas
petition in the California Court of Appeal. Why it took
Wiseman more than three months from the date of his
appointment to accomplish that task isn’t apparent, as
Wiseman did little more than retype, with minor edits, the
text of the pro se petition Luna had filed in the state trial
court. The Court of Appeal summarily denied the petition on
October 7, 2004.
To complete the exhaustion process, Wiseman’s next step
should have been to file, without delay, a habeas petition
raising the same claims in the California Supreme Court. For
reasons that are hard to discern, Wiseman failed to do that.
(He did not end up filing a petition in the California Supreme
Court until more than two years later.) Meanwhile, because
Wiseman did not timely file either the state Court of Appeal
petition or the California Supreme Court petition, AEDPA’s
statute of limitations continued to run, with the 1-year
deadline for filing Luna’s federal habeas petition set to expire
on February 14, 2005. (This is the date the parties and the
district court calculated, which we will adopt for purposes of
this decision.)
On January 25, 2005, approximately three weeks before
AEDPA’s 1-year statute of limitations expired, Wiseman
responded to a letter from Luna asking, “is there any response
from the federal courts based on my case?” Wiseman wrote
back: “Please note that my law clerk has recently finished a
draft of a fully exhausted federal Writ of habeas Corpus. We
intend to file it shortly, and, of course, I will send you a
copy.” Despite this assurance, Wiseman did not file Luna’s
federal habeas petition shortly afterward. He did not file it
for another six-plus years.
LUNA V. KERNAN 7
Wiseman continued to serve as Luna’s counsel
throughout that lengthy interval, patiently responding to
Luna’s inquiries about the status of the case and providing
updates on how the case was progressing. For example, in
August 2005, some six months after AEDPA’s statute of
limitations had already expired, Wiseman wrote to Luna “to
respond to your letters and to provide you with an update on
your case.” Wiseman began by stressing that they had a long
road ahead of them: “Habeas corpus litigation is very
complex, . . . and the process usually takes several years to
finish.” Wiseman then summarized where things stood:
The status of your case is as follows: I
moved to dismiss the original federal petition
that you filed because the claims were not
exhausted. That is, the state courts did not
have an opportunity to rule on the claims that
you raised in the federal petition. Exhaustion
is mandatory, and the federal court is not
allowed to rule on a claim that has not been
exhausted. Thereafter, I filed on your behalf
in the California Court of Appeal, Third
Appellate Division a state Petition for Writ of
Habeas Corpus. The Court of Appeal denied
the petition (this happens to most petitions
filed in that court) on October 7, 2004. In
order to fully exhaust your claims, however, I
must file on your behalf a Petition for Writ of
Habeas Corpus with the California Supreme
Court.
Wiseman closed by stating:
8 LUNA V. KERNAN
I will send you a Petition for Writ of
Habeas Corpus for your signature. After you
sign it, please return it to me. I will file it
with the California Supreme Court. In the
meantime, I hope this letter has answered
some of your questions. Please feel free to
call me collect or write if you have any
additional questions or comments.
Because Wiseman’s letter made no mention of a federal
habeas petition having been filed in late January, Luna could
have inferred that no such filing had occurred. However,
Wiseman continued to assure Luna that everything was on
track and that they would soon be returning to federal court.
A few months after sending the letter quoted above, Wiseman
responded in November 2005 to another letter from Luna.
Wiseman wrote:
This letter is in response to your letter to
me dated November 11, 2005. I will have
your Petition for Habeas Corpus that I will file
on your behalf in the California Supreme
Court finished soon. Once it is finished, I will
mail it to you for your signature. I anticipate
that the California Supreme Court will
summarily deny the petition—the Court does
this routinely.
After the Supreme Court acts on your
petition, we will be able to return to federal
court with a fully exhausted federal Petition
for Writ of Habeas Corpus. I intend to ask the
federal judge to review, among other things,
the legality of the “confessions.” However, as
LUNA V. KERNAN 9
I mentioned in an earlier letter, in most cases,
the federal judge defers to what was already
decided by the state court judges. There are
exceptions to this rule, which I do not want to
address in this letter. In any event, at the
appropriate time, I will ask the federal judge
to hold an evidentiary hearing on the matter.
For reasons that are unclear, despite promising in
November 2005 that he would have Luna’s California
Supreme Court petition finished “soon,” Wiseman did not file
it until February 28, 2007. The California Supreme Court
denied it as untimely on July 18, 2007.
Although all of Luna’s claims were fully exhausted at that
point, Wiseman did not promptly file a habeas petition on
Luna’s behalf in federal court, as one might have expected.
For reasons that once again are unclear, Wiseman did not file
Luna’s federal habeas petition until almost four years later, in
June 2011. Throughout that period, Luna remained in regular
contact with Wiseman. The two continued to correspond by
letter, as they had in the past, and it is clear that they spoke by
telephone as well, although the record as it stands now does
not tell us anything about the frequency or subject matter of
those calls. We do not know whether Luna ever inquired
about the reasons for the long delay, or whether he expressed
concern about the timeliness of his return to federal court.
We do know that Wiseman had previously assured Luna that
his claims would eventually be heard on the merits, with the
caveat that federal habeas litigation can take years to
complete.
Wiseman finally filed Luna’s federal habeas petition on
June 3, 2011. We cannot be sure why Wiseman believed he
10 LUNA V. KERNAN
could wait until 2011 to file the petition, but the limited
record before us sheds some light on the matter. Wiseman
apparently believed that by “amending” Luna’s 2004 pro se
petition he could avoid any potential time bar because the
“amended” petition would relate back to the timely filed pro
se petition. When Wiseman filed Luna’s federal habeas
petition in June 2011, he styled it as an “Amended Petition
for Habeas Corpus” and attempted to file it under the same
case number originally assigned to Luna’s pro se petition.
Because Wiseman had voluntarily dismissed Luna’s pro se
petition, however, that case had long since been closed. As
a result, there was no pending petition to which the
“amended” petition could relate back. See Henry v. Lungren,
164 F.3d 1240, 1241 (9th Cir. 1999).
The magistrate judge immediately spotted this problem
and issued an order to show cause why the newly filed
petition should not be dismissed as time-barred. Wiseman
responded by requesting that the court appoint new counsel
for Luna, candidly acknowledging that Luna might wish to
seek equitable tolling on the basis of Wiseman’s handling of
the case. The magistrate judge granted the motion and
appointed new counsel to represent Luna.
Luna’s new counsel argued that the 1-year statute of
limitations should be equitably tolled due to Wiseman’s
professional misconduct. In support of his motion, Luna’s
counsel submitted some of the letters exchanged between
Wiseman and Luna. The magistrate judge did not hold an
evidentiary hearing, but he did order Luna’s counsel to
submit, for the court’s in camera review, Wiseman’s entire
correspondence file with Luna. After reviewing those
materials, the magistrate judge concluded that the letters
originally submitted by counsel were the only ones relevant
LUNA V. KERNAN 11
to the equitable tolling analysis. The remaining letters were
not made part of the record and have not been reviewed by
counsel for the State.
The magistrate judge concluded that Luna had not met his
burden of proving entitlement to equitable tolling. The
district court adopted the magistrate judge’s findings and
conclusions without modification and granted the State’s
motion to dismiss Luna’s habeas petition as time-barred. The
court granted Luna a certificate of appealability on the issue
of whether Luna is entitled to equitable tolling.
II
A petitioner who seeks equitable tolling of AEDPA’s
1-year filing deadline must show that (1) some “extraordinary
circumstance” prevented him from filing on time, and (2) he
has diligently pursued his rights. Holland v. Florida, 560
U.S. 631, 649 (2010). The district court held that Luna had
not shown extraordinary circumstances and denied Luna’s
claim for equitable tolling on that basis. Whether
extraordinary circumstances exist on a given set of facts is a
question of law, so we review the district court’s ruling de
novo. Gibbs v. LeGrand, 767 F.3d 879, 884 (9th Cir. 2014);
Dillon v. Conway, 642 F.3d 358, 362 (2d Cir. 2011) (per
curiam). We conclude that Luna has shown extraordinary
circumstances, but we must remand for the district court to
address diligence in the first instance on a more fully
developed record.
A
Luna contends that Wiseman’s mistakes in the course of
representing him constitute extraordinary circumstances. Not
12 LUNA V. KERNAN
all attorney mistakes qualify as a basis for equitable tolling.
Courts have held that run-of-the-mill mistakes by one’s
lawyer that cause a filing deadline to be missed do not rise to
the level of extraordinary circumstances. See, e.g., Frye v.
Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001)
(miscalculating due date); Sandvik v. United States, 177 F.3d
1269, 1271–72 (11th Cir. 1999) (filing by ordinary mail
shortly before deadline expired). Mistakes of this sort, which
amount to nothing more than “garden variety” negligence, are
deemed too routine and unremarkable to warrant equity’s
intervention. Holland, 560 U.S. at 651–52. However, acts or
omissions that transcend garden variety negligence and enter
the realm of “professional misconduct” may give rise to
extraordinary circumstances if the misconduct is sufficiently
egregious. Id. at 651; Spitsyn v. Moore, 345 F.3d 796, 800
(9th Cir. 2003). The question here is whether Wiseman’s
actions represent egregious professional misconduct or mere
garden variety negligence.
Let’s begin with Wiseman’s decision to dismiss Luna’s
pro se petition. Before Wiseman’s appointment, through his
own diligent efforts, Luna had managed to protect himself
against the risk of missing AEDPA’s 1-year deadline by
filing a timely petition. True, a number of the claims Luna
alleged had not been exhausted, but Wiseman initially
avoided the need to dismiss the petition by securing a stay
and abeyance. At that point, Luna reasonably expected
Wiseman to help him complete the state-court exhaustion
process as expeditiously as possible so that Luna’s claims
could be heard on the merits in federal court.
Instead of advancing his client’s interests, Wiseman
affirmatively undermined them by voluntarily dismissing the
petition for no good reason. Dismissing the petition might
LUNA V. KERNAN 13
have made sense had Wiseman been planning to add entirely
new, unrelated claims, in order to avoid AEDPA’s strict
limitations on the filing of second or successive petitions.
See 28 U.S.C. § 2244(b). But as far as the record discloses,
Wiseman had no such plans; he dismissed the petition
because he believed (erroneously) that all of Luna’s claims
were unexhausted. If, as seems apparent, Wiseman planned
to do nothing more than amend the petition to add additional
facts and legal analysis in support of the claims already
alleged, there was no need to dismiss the petition outright.
Wiseman could have asked for leave to amend the petition
later, while preserving the timely filing date of Luna’s pro se
petition. See Nguyen v. Curry, 736 F.3d 1287, 1297 (9th Cir.
2013); Anthony v. Cambra, 236 F.3d 568, 576–77 (9th Cir.
2000). Dismissing Luna’s pro se petition thus offered no
strategic benefit and carried a monumental downside risk: If
for whatever reason Wiseman failed to file Luna’s federal
habeas petition within the time allowed, Luna would forfeit
his right to federal review altogether.
Voluntarily dismissing a timely federal habeas petition,
standing alone, is not necessarily egregious professional
misconduct. After all, so long as Wiseman had completed the
exhaustion process and refiled Luna’s federal petition before
AEDPA’s limitations period expired, probably the most one
could say is no harm, no foul. But the actions Wiseman took
following dismissal compounded the error he had already
made. Having exposed his client to the risk of default where
none existed before, Wiseman assumed a duty of the highest
order to ensure that he filed a fully exhausted petition on
Luna’s behalf within the time allowed. Failing to fulfill that
duty was bad enough. Worse still, in response to an inquiry
from Luna shortly before the statute of limitations expired,
Wiseman misled Luna to believe that a fully exhausted
14 LUNA V. KERNAN
federal habeas petition would be filed “shortly.” Had Luna
been informed of the truth—that the filing deadline was three
weeks away and that Wiseman would not be filing a petition
within that timeframe—Luna could have filed a pro se
petition on his own, as he had already done once before, prior
to Wiseman’s appointment.
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. Doe v. Busby, 661 F.3d
1001, 1012 (9th Cir. 2011); Dillon, 642 F.3d at 363–64;
Downs v. McNeil, 520 F.3d 1311, 1322–23 (11th Cir. 2008);
Fleming v. Evans, 481 F.3d 1249, 1256–57 (10th Cir. 2007);
United States v. Martin, 408 F.3d 1089, 1094–95 (8th Cir.
2005); United States v. Wynn, 292 F.3d 226, 230 (5th Cir.
2002). Wiseman engaged in precisely such misconduct here.
But the misconduct in this case extends beyond an isolated
misleading statement. Even after wrongfully dismissing
Luna’s original pro se petition and then missing the 1-year
deadline for filing a new petition, Wiseman led Luna to
believe for another six-plus years that litigation of his federal
habeas petition was moving forward, albeit slowly, toward a
hearing on the merits. In truth, however, nothing had been
filed in federal court and the statute of limitations had long
since expired.
Wiseman’s actions in this case, considered collectively,
go beyond mere garden variety negligence. Attorney
mistakes that warrant the label “garden variety”—like
miscalculating a filing deadline—are the sorts of mistakes
that, regrettably, lawyers make all the time. They are
mistakes made routinely enough that they’re regarded as one
of the risks petitioners typically assume when relying on
LUNA V. KERNAN 15
counsel to litigate a case, rather than as an extraordinary
circumstance warranting equitable intervention. Courts do
not recognize run-of-the-mill mistakes as grounds for
equitable tolling because doing so “would essentially
equitably toll limitations periods for every person whose
attorney missed a deadline.” Lawrence, 549 U.S. at 336. No
such concerns arise by granting equitable tolling on the basis
of Wiseman’s misconduct. His actions were “utterly
deficient and unprofessional,” Doe, 661 F.3d at 1012, and,
unlike run-of-the-mill mistakes, were “far enough outside the
range of behavior that reasonably could be expected” in the
typical case that they may be regarded as “extraordinary.”
Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir.
2003).
The State’s most forceful counter-argument is that, under
traditional agency principles, Luna should be bound by the
actions of his lawyer, however egregious they may have been.
According to the State, a claim for equitable tolling may be
predicated on an attorney’s misconduct only if the
misconduct severs the agency relationship, as in cases of
attorney abandonment. The State acknowledges that the
cases cited earlier foreclose this argument, as they authorize
equitable tolling based on a range of attorney misconduct not
limited to abandonment. However, the State contends that
those cases have been overruled by the Supreme Court’s
decision in Maples v. Thomas, 132 S. Ct. 912 (2012).
We do not share the State’s view, although at least one
other circuit does. See Cadet v. Florida Dep’t of Corrections,
742 F.3d 473, 477–82 (11th Cir. 2014). In Maples the Court
discussed the agency principles the State urges us to apply
here, but it did so in the context of applying the procedural
default doctrine, not the equitable tolling doctrine. The Court
16 LUNA V. KERNAN
reaffirmed the general rule established in Coleman v.
Thompson, 501 U.S. 722 (1991): If a lawyer’s actions during
the course of the agency relationship result in a state-court
procedural default, the petitioner is bound by those
actions—even if they are negligent—and cannot assert them
as “cause” to excuse the default. Maples, 132 S. Ct. at 922.
By the same token, the Court held, if the lawyer’s actions
occur after the agency relationship has been severed, as in
cases of attorney abandonment, the petitioner is not bound by
those actions and may assert them as cause to excuse a
default. Id. at 924. In a footnote on which the State places
heavy reliance, the Court appeared to suggest that the same
agency principles also apply in the equitable tolling context.1
That footnote could be read to suggest that, absent some
agency-severing event such as abandonment, a petitioner will
be bound by his lawyer’s acts or omissions in both the
procedural default and equitable tolling contexts.
In our view, it remains unclear whether the Court
intended to hold in Maples that attorney misconduct falling
short of abandonment may no longer serve as a basis for
equitable tolling. We would be surprised to find that holding
lurking in a footnote to an opinion addressing an entirely
different doctrine, particularly given what the Court had said
less than two years earlier in Holland. In that case, the Court
appeared to hold that professional misconduct falling short of
abandonment could support a claim of equitable tolling, as
1
The footnote reads: “Holland v. Florida, 560 U.S. — (2010), involved
tolling of a federal time bar, while Coleman v. Thompson, 501 U.S. 722(1991), concerned cause for excusing a procedural default in state court.
We see no reason, however, why the distinction between attorney
negligence and attorney abandonment should not hold in both contexts.”
Maples, 132 S. Ct. at 923 n.7 (citation omitted).
LUNA V. KERNAN 17
most circuits at the time, including ours, had also held. See
Holland, 560 U.S. at 651–52. The Court rejected as “too
rigid” the rule applied by the Eleventh Circuit, under which
“even attorney conduct that is ‘grossly negligent’ can never
warrant tolling absent ‘bad faith, dishonesty, divided loyalty,
mental impairment or so forth on the lawyer’s part.’” Id. at
649. The Court held that the Eleventh Circuit’s rule “fails to
recognize that, at least sometimes, professional misconduct
that fails to meet the Eleventh Circuit’s standard could
nonetheless amount to egregious behavior and create an
extraordinary circumstance that warrants equitable tolling.”
Id. at 651. The Court recognized that the rule it was adopting
for equitable tolling cases differed from the rule announced
in Coleman, but stated that the difference was justified
because the procedural default doctrine implicates federalism
concerns absent in the equitable tolling context. Id. at 650.
Maples did not explicitly overrule Holland, and we lack
the authority to hold that Maples did so implicitly. See
Agostini v. Felton, 521 U.S. 203, 237 (1997). As a three-
judge panel, we also lack the authority to declare that our own
precedent has been overruled by Maples, unless our cases are
“clearly irreconcilable” with Maples. See Miller v. Gammie,
335 F.3d 889, 893 (9th Cir. 2003) (en banc). That test has not
been met here. Our circuit’s equitable tolling precedent
tracks the standard the Court adopted in Holland. See Doe,
661 F.3d at 1011–12; Spitsyn, 345 F.3d at 800. And, as just
noted, it’s decidedly unclear to what extent, if any, Maples
abrogated Holland’s reasoning on the question whether
attorney misconduct falling short of abandonment may
qualify as an extraordinary circumstance for equitable tolling
purposes. For now, then, our cases holding that egregious
attorney misconduct of all stripes may serve as a basis for
equitable tolling remain good law.
18 LUNA V. KERNAN
Having concluded that Wiseman’s professional
misconduct constitutes an extraordinary circumstance, we
must next determine whether that misconduct prevented Luna
from filing his federal habeas petition on time (what we have
sometimes referred to as the “causation” requirement). See
Spitsyn, 345 F.3d at 799. That requirement is easily satisfied
here. But for Wiseman’s misconduct, Luna would have filed
his federal habeas petition on time. We know that to be true
because Luna had filed his petition on time before Wiseman
ever arrived on the scene. Wiseman’s misconduct consisted
of undoing Luna’s diligent work and then misleading Luna to
believe for six-plus years that everything was proceeding on
track in federal court when that was not the case. Nothing
more need be shown to demonstrate causation in this context.
B
The magistrate judge did not thoroughly analyze whether
Luna had diligently pursued his rights because the judge
concluded that Luna had not shown extraordinary
circumstances. With respect to diligence, the magistrate
judge stated only that Luna “could not have done more to
ensure a timely filing once his attorney was appointed.”
Because the magistrate judge focused on the period before
AEDPA’s 1-year statute of limitations expired in 2005, we
are unable to tell whether he also found that Luna had
diligently pursued his rights after that time. We cannot make
that determination in the first instance (a task we would be
reluctant to undertake in any event given the fact-intensive
nature of the inquiry) because the record is insufficiently
developed.
Luna contends that the current record establishes
reasonable diligence because it shows that, throughout the
LUNA V. KERNAN 19
relevant time period, he remained in regular contact with
Wiseman and asked for and received updates on the status of
his case. Under some circumstances, communicating with
one’s lawyer and relying on the lawyer’s assurances that
everything is proceeding apace can suffice to demonstrate
diligence. In Doe v. Busby, 661 F.3d 1001 (9th Cir. 2011),
for example, we held that Doe had shown reasonable
diligence by continuing to urge his attorney to file a federal
habeas petition over a period of three years, even after
learning that his attorney had blown the original filing
deadline. Throughout that period, the attorney told Doe that
a petition could not be filed until new evidence was
discovered but assured Doe that the search for such evidence
was ongoing. Id. at 1013–14. Nothing alerted Doe that he
needed to take further action to protect his rights until the
attorney abruptly resigned. “Untrained in the technicalities
of habeas law and incarcerated, Doe was in no position to
question a plausible explanation for the attorney’s delay or to
observe the thoroughness of the attorney’s supposedly
ongoing investigation for evidence.” Id. at 1014. We
concluded that a reasonable person in the petitioner’s shoes,
“if asked about the status of his or her lawsuit, would be
justified in replying, ‘My lawyer is handling it.’” Id. at 1015.
To establish diligence here, Luna must show not only that
he kept in touch with Wiseman, but also that it was
reasonable for him to continue relying on Wiseman’s
assurances about the progress of his case. See id. The record
before us contains only three letters from Wiseman to Luna
after the statute of limitations expired, and we do not have
declarations from Luna or Wiseman describing what
assurances Wiseman may have provided Luna during that
period, whether in writing or by telephone. We cannot say
whether Luna’s reliance on Wiseman was reasonable—or
20 LUNA V. KERNAN
whether circumstances should have alerted Luna earlier that
he needed to take additional action to protect his
rights—without knowing more about the nature of the
communications between Luna and Wiseman over the more
than six years in question.
Nor can we say, as the State urges, that the existing record
conclusively establishes that Luna was not diligent. We
acknowledge that the delay involved here—more than six
years—is considerable. The State contends that, given the
length of the delay, at some point Luna should have realized
that Wiseman was taking too long to file and that Luna
therefore needed to take action himself to protect his rights.
Other than the sheer length of the delay, however, we see
nothing in the existing record to indicate that Luna should
have become aware of the need to take action. There is no
indication, for example, that Luna ever learned that
Wiseman’s misconduct had allowed the AEDPA statute of
limitations to expire. For all we know, Wiseman may have
assured Luna that AEDPA’s time limitations were of no
concern, based on Wiseman’s erroneous understanding of
when an amended petition could relate back to an earlier-filed
petition. Relying on that advice from a trained lawyer would
be just as reasonable as relying on the advice the petitioner in
Doe received from his lawyer, who told Doe that even a
concededly blown filing deadline was of no concern because
a late petition could be filed once they discovered new
evidence. Doe, 661 F.3d at 1013–14. Thus, unless we were
prepared to say that six-plus years is simply too long of a
delay in these circumstances—no matter what the
reason—we could not rule in the State’s favor without first
remanding to the district court for further development of the
record. As we did in Doe, we decline to impose any such
LUNA V. KERNAN 21
rigid cut-off based on the “passage of time alone.” Id. at
1015.
III
We address one final issue to assist the district court on
remand, relating to the time period during which Luna must
show that he exercised reasonable diligence.
In Gibbs v. LeGrand, 767 F.3d 879 (9th Cir. 2014), we
adopted the “stop clock” approach to analyzing claims for
equitable tolling. Under that approach, the statute-of-
limitations clock stops running when extraordinary
circumstances first arise, but the clock resumes running once
the extraordinary circumstances have ended or when the
petitioner ceases to exercise reasonable diligence, whichever
occurs earlier. Id. at 891–92. In that sense, the stop-clock
approach to equitable tolling works in much the same way
statutory tolling does under 28 U.S.C. § 2244(d)(2): Any
period during which both extraordinary circumstances and
diligence are shown does not count toward the statute of
limitations, just as any period during which a properly filed
application for state post-conviction relief is pending does not
count toward the statute of limitations. See Wood v. Milyard,
132 S. Ct. 1826, 1831 & n.3 (2012). To determine whether
a petition is timely, we ask whether it was filed within the 1-
year limitations period after all periods of tolling are
subtracted from the count.
Under a pure stop-clock approach, a petitioner needs to
show diligence only during the period he seeks to have
tolled—i.e., the period during which the extraordinary
circumstances prevented timely filing. There is no need to
show diligence after the extraordinary circumstances have
22 LUNA V. KERNAN
ended. The clock remains stopped for the period during
which extraordinary circumstances existed and the petitioner
remained diligent, and the timeliness of the petition is
assessed accordingly. That is the rule followed in the Second
Circuit, which has adopted the stop-clock approach to
analyzing claims for equitable tolling. See Harper v. Ercole,
648 F.3d 132, 136–37 (2d Cir. 2011).
One of our earlier equitable tolling precedents, however,
requires a petitioner to show diligence through the time of
filing, even after the extraordinary circumstances have ended.
In Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003), we held
that the petitioner had shown extraordinary circumstances
where his attorney, although retained nearly a full year ahead
of AEDPA’s filing deadline, ignored all of Spitsyn’s phone
calls and letters, never filed a petition on Spitsyn’s behalf,
and then delayed returning Spitsyn’s files until after the
statute of limitations had expired. Id. at 798–99, 801. We
remanded for the district court to determine whether Spitsyn
had been reasonably diligent. In particular, we directed the
district court to determine whether Spitsyn had exercised
reasonable diligence during the 174 days that elapsed
between the time Spitsyn received his files back (the point at
which the extraordinary circumstances ended) and the date
Spitsyn filed his own pro se petition. Id. at 801–02. Under
the pure stop-clock approach, there would have been no need
for this post-extraordinary circumstances diligence inquiry:
Once Spitsyn received his files back and the clock began
ticking again, he would have been entitled to use whatever
time remained left on the clock before filing.
At some point, our circuit may need to decide whether it
makes sense to follow the stop-clock approach and at the
same time impose a diligence-through-filing requirement. If
LUNA V. KERNAN 23
the objective of the stop-clock approach is to give petitioners
one full year of unobstructed time to prepare a federal habeas
petition, a separate diligence-through-filing requirement
appears to thwart that objective. See Lott v. Mueller,
304 F.3d 918, 926–27 (9th Cir. 2002) (McKeown, J.,
concurring). However, under current circuit law, we must
apply both the diligence-through-filing requirement imposed
by Spitsyn and the stop-clock approach adopted in Gibbs.
To prevail on remand, then, Luna will need to show that
he remained diligent through filing—i.e., through June 3,
2011. If he makes that showing, his petition will also be
timely under the stop-clock approach. The extraordinary
circumstances spawned by Wiseman’s misconduct arose
before the statute of limitations expired, and they continued
uninterrupted through Wiseman’s filing of the petition on
June 3, 2011. If Luna shows reasonable diligence throughout
that period, the clock will remain stopped through the date of
filing, rendering his petition timely.
* * *
We vacate the district court’s judgment dismissing Luna’s
federal habeas petition and remand for the district court to
determine in the first instance, after conducting an evidentiary
hearing if necessary, whether Luna diligently pursued his
rights through the date of filing, June 3, 2011. See Sossa v.
Diaz, 729 F.3d 1225, 1237 & n.13 (9th Cir. 2013); Spitsyn,
345 F.3d at 802. That determination will dictate whether
Luna’s petition should be deemed timely.
Costs are awarded to the appellant.
VACATED AND REMANDED.