FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARGARET RUDIN, No. 12-15362
Petitioner-Appellant,
D.C. No.
v. 2:11-cv-00643-
RLH-GWF
CAROLYN MYLES; ATTORNEY
GENERAL OF THE STATE OF NEVADA, ORDER AND
Respondents-Appellees. OPINION
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Argued and Submitted
February 11, 2014—San Francisco, California
Filed September 10, 2014
Opinion Withdrawn and New Opinion Filed
March 10, 2015
Before: Diarmuid F. O’Scannlain and Mary H. Murguia,
Circuit Judges, and Lynn S. Adelman, District Judge.*
Order;
Opinion by Judge Murguia;
Concurrence by Judge Adelman;
Dissent by Judge O’Scannlain
*
The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
2 RUDIN V. MYLES
SUMMARY**
Habeas Corpus
The panel withdrew an opinion filed on September 10,
2014, and filed a new opinion reversing the district court’s
order dismissing as untimely Nevada state prisoner Margaret
Rudin’s 28 U.S.C. § 2254 habeas corpus petition challenging
her conviction of murder with the deadly use of a weapon and
unauthorized surreptitious intrusion of privacy by listening
device.
The panel held that because the Nevada State Supreme
Court concluded that Rudin’s state post-conviction petition
was untimely under state law, Rudin is not entitled to
statutory tolling under 18 U.S.C. § 2244(d)(2) for the duration
of her state post-conviction proceedings.
The panel held that extraordinary circumstances
prevented Rudin from filing her application for federal habeas
relief, and that she is therefore entitled to equitable tolling of
the AEDPA statute of limitations, between November 10,
2004, and August 22, 2007 – during which period the first
attorney appointed to represent Rudin in collateral review
proceedings abandoned her, and during which period she was
diligent in pursuing her rights.
The panel held that the state post-conviction court’s
finding – at an August 22, 2007, status conference,
immediately upon discovering counsel’s failure to file a
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
RUDIN V. MYLES 3
post-conviction petition in state court – of “extraordinary
circumstances” that would “extend the one year deadline,”
coupled with the state’s failure to brief the timeliness
question or move to dismiss Rudin’s petition, “affirmatively
misled” Rudin into believing that the state court had excused
her late filing and that her federal limitations period would be
statutorily tolled. The panel explained that until the state
court’s finding was challenged or reversed – that is, as long
as Rudin’s petition was deemed “properly filed” by the state
post-conviction court – Rudin remained entitled to statutory
tolling of the federal clock.
The panel held that Rudin satisfied her burden to show
that she is entitled to equitable tolling of the AEDPA
limitations period until January 20, 2011, when the
extraordinary circumstances making it impossible for her to
file her federal petition on time were removed, giving her
until September 9, 2011, to file her petition for federal habeas
relief in the district court. Because Rudin filed her petition
on April 25, 2011, the panel concluded that her petition was
timely filed.
The panel remanded for further proceedings and denied
the state’s motion to expand the record on appeal.
Concurring, District Judge Adelman wrote that a contrary
result would require the essentially pointless early filing of
federal petitions by prisoners who reasonably believe that
their claims are properly pending, unexhausted, in state
courts.
Dissenting, Judge O’Scannlain wrote that Rudin is not
entitled to equitable tolling beyond the August 22, 2007,
conference because she failed to act with reasonable diligence
4 RUDIN V. MYLES
to protect her rights for the duration of the relevant time
period.
COUNSEL
Christopher Oram, Las Vegas, Nevada, for Petitioner-
Appellant.
Jamie J. Resch (argued), Senior Deputy Attorney General,
and Catherine Cortez Masto, Attorney General, Office of the
Attorney General, Las Vegas, Nevada, for Respondents-
Appellees.
Rene L. Valladares, Federal Public Defender, Megan
Hoffman, Chief, Non-Capital Habeas Unit, Heather Fraley ,
Assistant Federal Public Defender, Las Vegas, Nevada, for
Amicus Curiae Federal Public Defender for the District of
Nevada.
ORDER
The opinion filed on September 10, 2014, and appearing
at 766 F.3d 1161, is withdrawn. The superseding opinion
will be filed concurrently with this order. The parties may
file additional petitions for rehearing or rehearing en banc.
RUDIN V. MYLES 5
OPINION
MURGUIA, Circuit Judge:
The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) establishes a one-year period of limitation
within which an individual seeking relief must file an
application for a writ of habeas corpus. See 28 U.S.C.
§ 2244(d)(1). Once that one-year period begins to run, it may
be tolled only in certain circumstances. See id. § 2244(d)(2)
(providing for statutory tolling); Holland v. Florida, 560 U.S.
631, 634 (2010) (providing for equitable tolling). The
question this case presents is whether Petitioner Margaret
Rudin is entitled to statutory or equitable tolling of the
AEDPA limitations period, excusing her six-year delay in
filing her application. We conclude that she is entitled to
equitable tolling sufficient to excuse her delay. We therefore
reverse the district court’s order dismissing Rudin’s
application as untimely.
I. FACTS
The facts giving rise to this appeal are essential to our
tolling analysis. We therefore describe those facts in more
detail than we otherwise might.
A. Rudin’s Criminal Trial and Direct Appeal Proceedings
In April 1997, Rudin was charged with murder with the
use of a deadly weapon and unauthorized surreptitious
intrusion of privacy by listening device, both in violation of
Nevada state law. See Nev. Rev. Stat. §§ 200.010; 193.165;
200.650. Those charges arose out of the death of Rudin’s
husband Ron, whose charred remains had been discovered in
6 RUDIN V. MYLES
Lake Mojave a few years earlier. See Rudin v. State, 86 P.3d
572, 577 (Nev. 2004). After pleading not guilty to both
charges, Rudin retained the services of a private attorney,
Michael Amador, to represent her at trial. Her trial began in
the Eighth Judicial District Court of the State of Nevada (the
“trial court” or the “court”) on March 2, 2001.
Two-and-a-half weeks before trial commenced, it became
clear to the court that Amador alone could not adequately
defend Rudin. After a series of pretrial delays, the court
appointed attorney Thomas Pitaro to assist Amador with
Rudin’s defense. Pitaro quickly realized that Amador had not
yet reviewed “thousands of pages of discovery,” and Pitaro
soon became “concerned about the preparation that had been
done for the trial.” Amador had not, for example,
interviewed critical witnesses. As a result, the defense team
would learn, for the first time at trial, the content of various
witnesses’ testimony. In at least one instance, when a witness
was called to the stand, Pitaro “went to get from Mr. Amador
the [witness’s] file and found nothing inside.” As Pitaro
would later describe, “the preparation that [one] would hope
normally would be done before trial starts was being done
during the trial.”
But even with Pitaro’s help, Rudin’s trial was replete with
alleged errors and professional misconduct on the part of the
defense team. Amador, for example, began with an opening
statement that had “no cohesive theme.” Over the course of
trial, Amador was accused of creating a prejudicial conflict of
interest by allegedly negotiating agreements for the literary
and media rights to his representation. Rudin, 86 P.3d at
587–88. His general lack of preparation prompted Rudin
twice to move for a mistrial, but both of her motions were
denied. Id. at 579–80, 585–86. Pitaro, who was appointed
RUDIN V. MYLES 7
after Amador’s opening statement, described the
representation as “ ‘a farce, and that disturbs me as an
attorney. . . . This has become a sham, a farce and a
mockery.’ ”1 Id. at 590 (Rose, J., dissenting).
A jury convicted Rudin on both charges. For her
conviction for murder with the use of a deadly weapon, the
trial court imposed a sentence of life imprisonment with a
possibility of parole after twenty years. For her conviction
for unauthorized surreptitious intrusion of privacy by a
listening device, the court imposed a one-year sentence, to
run concurrently with Rudin’s life sentence. Rudin’s
judgment of conviction was entered on September 17, 2001.
On April 1, 2004, the Nevada Supreme Court affirmed
both of Rudin’s convictions on direct appeal. See Rudin v.
State, 86 P.3d 572 (Nev. 2004). The court concluded that
Amador’s alleged conflict of interest and ineffectiveness,
while sufficient to cause “concern,” “must be examined in a
separate post-conviction proceeding at which time Rudin’s
post-conviction attorney will examine the entire record,
interview all relevant witnesses and present the matter to the
district court for a full and complete airing and decision.” Id.
at 588.2 The Nevada Supreme Court’s remittitur issued on
1
By the time Rudin’s trial ended, the court had actually appointed a
third attorney, John Momot, to assist with the defense. Rudin, 86 P.3d at
580.
2
Two of the six justices dissented. They concluded that
there is sufficient evidence in the record, without the
necessity of post-trial proceedings, to establish that the
defense was totally unprepared to try this case and that
Amador had a substantial conflict of interest with his
8 RUDIN V. MYLES
April 27, 2004, and Rudin did not seek a writ of certiorari
from the U.S. Supreme Court. The deadline for her to do so
was June 30, 2004.3
B. Rudin’s Petitions for Collateral Relief
Around the time that appellate review of Rudin’s
judgment of conviction concluded, two statutes of limitation
began to run, both relating to her ability to seek collateral
review of the errors that she alleged had affected her
underlying criminal trial. The first limitations period is
defined by state law and requires, except under certain
circumstances, that a state-court petition for post-conviction
relief be filed within one year of the Nevada Supreme Court
issuing its remittitur:
Unless there is good cause shown for delay, a
petition that challenges the validity of a
judgment or sentence must be filed within 1
year after entry of the judgment of conviction
or, if an appeal has been taken from the
judgment, within 1 year after the Supreme
Court issues its remittitur. For the purposes of
this subsection, good cause for delay exists if
the petitioner demonstrates to the satisfaction
of the court:
client. This was prejudicial to Rudin, and the result
reached was unreliable.
Rudin, 86 P.3d at 595 (Rose, J., dissenting).
3
Rudin had ninety days from the date of the Nevada Supreme Court’s
decision, which was issued on April 1, 2004, to petition for a writ of
certiorari. Sup. Ct. R. 13(3).
RUDIN V. MYLES 9
(a) That the delay is not the fault of the
petitioner; and
(b) That dismissal of the petition as untimely
will unduly prejudice the petitioner.
Nev. Rev. Stat. § 34.726(1). The second limitations period is
defined by AEDPA, and it also establishes a one-year
deadline for a state prisoner seeking a federal writ of habeas
corpus. 28 U.S.C. § 2244(d)(1). The AEDPA limitations
period runs from the latest of four specified dates:
(1) A 1-year period of limitation shall apply to
an application for a writ of habeas corpus by
a person in custody pursuant to the judgment
of a State court. The limitation period shall
run from the latest of—
(A) the date on which the judgment
became final by the conclusion of direct
review or the expiration of the time for
seeking such review;
(B) 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, if
the applicant was prevented from filing by
such State action;
(C) the date on which the constitutional
right asserted was initially recognized by
the Supreme Court, if the right has been
newly recognized by the Supreme Court
10 RUDIN V. MYLES
and made retroactively applicable to cases
on collateral review; or
(D) the date on which the factual predicate
of the claim or claims presented could
have been discovered through the exercise
of due diligence.
Id. The AEDPA limitations period may be tolled if a
petitioner “properly file[s]” a petition for post-conviction
relief in state court; where that occurs, the limitations period
will be tolled for the time during which the state-court
petition is pending. Id. § 2244(d)(2).
Thus, from the date on which the Nevada Supreme Court
issued its remittitur, which was April 27, 2004, Rudin had
one year, or until April 27, 2005, to file a petition for post-
conviction relief in state court. And from the date on which
the deadline passed for seeking a writ of certiorari from the
U.S. Supreme Court, which was June 30, 2004, she had one
year, or until June 30, 2005, to file an application for a writ of
habeas corpus in federal court. If Rudin were “properly” to
file her state post-conviction petition, the time for filing an
application for federal habeas relief would be statutorily
tolled.
With that statutory background in mind, we turn to the
series of events that occurred during each of those respective
one-year periods in this case.
1. Attorney Dayvid Figler’s Representation
On April 30, 2004, three days after the Nevada Supreme
Court issued its remittitur on direct appeal of Rudin’s
RUDIN V. MYLES 11
judgment of conviction, Rudin’s appellate counsel, Craig
Creel, moved to withdraw as counsel and asked the trial court
to appoint post-conviction counsel. The trial court granted
Creel’s motion on June 8, 2004. Rudin, proceeding pro per,
filed a similar motion on July 14, 2004, also seeking
appointment of post-conviction counsel.4 At a hearing on
November 10, 2004, after 197 days had passed since the state
supreme court issued its remittitur, the court granted Rudin’s
motion and appointed attorney Dayvid Figler to represent
her.5 Two weeks later, on November 24, 2004, the court
issued an order to that effect.6
At the November 2004 hearing at which the state court
appointed Figler to represent Rudin, Rudin attempted pro per
to file with the court a series of papers. In the district court
and on appeal, Rudin contends that those papers would have
4
We assume that the state court was required, under Nevada Rule of
Appellate Procedure 46(d)(3)(C), to wait to set a hearing date until after
Rudin had filed her pro per motion for appointment of post-conviction
counsel. Under that rule, in a post-conviction appeal, an attorney’s motion
to withdraw as counsel “shall be accompanied by . . . a motion by
defendant to proceed in proper person or with substitute counsel.”
5
The record is not clear as to the reason, if any, that the post-conviction
court delayed four months in hearing Rudin’s pro per motion for
appointment of post-conviction counsel. Cf. Nev. Rev. Stat. §§ 34.740
(requiring “expeditious judicial examination” of petitions for post-
conviction relief); 34.726 (limiting the period for filing a petition to one
year). In the district court, Rudin argued in passing that the state court’s
four-month delay was “unnecessarily long” and was a part of the
“extraordinary circumstances” that gave rise to her filing delay. She does
not renew that argument on appeal.
6
We take November 10, 2004, not November 24, 2004, as the date on
which Figler’s representation commenced.
12 RUDIN V. MYLES
constituted a “properly filed” post-conviction petition had the
court accepted them. See 28 U.S.C. § 2244(d)(2). Pursuant
to the applicable local rules, however, the court declined to
accept them and instead “turned [them] over to Mr. Figler.”7
But Figler never filed them with the court. One month later,
in December 2004, Judge Bonaventure, who had presided
over Rudin’s trial and post-conviction proceedings up until
that point, recused himself sua sponte, and Rudin’s case was
reassigned.8
When Rudin’s case was reassigned to another judge on
December 29, 2004, 246 days had passed since the Nevada
Supreme Court issued its remittitur. Rudin therefore had 119
days left to file a petition for post-conviction relief in state
court. With respect to AEDPA, 182 days had passed since
that limitations period had begun to run, leaving Rudin with
183 days to file an application for federal habeas relief.
Again, the deadlines for filing those petitions were April 27,
2005, and June 30, 2005, respectively. And although Rudin
had once tried to file a petition for relief in state court herself,
the post-conviction court rejected that effort because the local
7
Rule 3.70 of the Rules of Practice for the Eighth Judicial District Court
of the State of Nevada provides that papers “delivered to the clerk of the
court by a defendant who has counsel of record will not be filed [but will
be] forwarded to that attorney for such consideration as counsel deems
appropriate.”
8
Judge Bonaventure recused himself as a result of personal biases that
he had against Rudin’s previous appellate counsel, Craig Creel. See Matt
Pordum, Bonaventure Won’t Hear Rudin Appeal, Las Vegas Sun, Dec. 28,
2004, http://www.lasvegassun.com/news/2004/dec/28/bonaventure-wont-
hear-rudin-appeal/ (“ ‘My blood boils every time I hear the name Craig
Creel. . . . Whether I look at him or think of him, my blood boils. I’m
getting a headache thinking of him right now.’ ” (quoting Bonaventure,
J.)).
RUDIN V. MYLES 13
rules prohibited Rudin from doing so when she had “counsel
of record.”
* * * * *
The record suggests that, after Rudin’s case was
reassigned (and perhaps as a result of that reassignment),
substantial confusion arose between the parties and the court
about whether Rudin had already filed a petition for post-
conviction relief. On January 5, 2005, for example, the state
court held a status hearing on Rudin’s “opening brief.” The
court’s use of the term “opening brief” suggested that the
parties and the court believed that Rudin’s initial petition for
post-conviction relief had been filed but that Rudin had yet to
file a brief in support of that petition. See Nev. Rev. Stat.
§ 34.735 (establishing the form of a petition). At the same
status hearing, the court granted Figler a continuance,
extending his time to file the “brief” and setting a second
status hearing for July 13, 2005. At the July 13th status
hearing, Figler again requested “an additional 90 days to file
his brief,” which the court granted the following week. By
that date, both of Petitioner’s one-year limitations periods for
filing her requests for collateral relief had run. But nobody—
neither Figler, nor the State, nor the court—recognized that
to have occurred. On January 18, 2006, the post-conviction
court again granted Figler an additional “45 days in which to
file his opening brief due to the voluminous record in this
case.” The State would later confirm that, at that time, the
State and the court were “under the mistaken impression” that
a petition had already been filed.
Meanwhile, Rudin became concerned—and we believe
rightfully so—that Figler was not adequately representing her
in her collateral review proceedings. According to Rudin, at
14 RUDIN V. MYLES
some point in 2005, she requested that Figler provide her with
copies of her file. Figler did not immediately respond. Figler
visited Rudin only a handful of times that year, but he did not
interview the witnesses she identified, and he never informed
her that he had requested a series of continuances on the basis
of the “complexity” of her case. Figler last visited Rudin in
May 2006, which was the first time in almost a year that he
had done so.
In November 2005, Rudin began to gather information in
support of her soon-to-be-filed motion to substitute counsel.
First, she submitted an Inmate Request Form to the prison
staff asking for a summary of the attorney visits she had
received that past year. In a response dated a few weeks later,
the staff informed her that she had received four visits in
2005, occurring on January 4, February 7, February 25, and
June 17. In January 2006, after multiple failed attempts to
contact Figler, Rudin submitted a second Inmate Request
Form notifying prison staff that she had “not been able to call
[her] attorney since [December 15, 2005]” and requesting that
the staff fix the problem, which she was concerned was “at
this facility.” Three weeks later, the prison staff responded,
informing Rudin that Figler had a collect call block on his
office phone and that Rudin would need to send a letter to
Figler requesting that the block be removed. At the same
time, Rudin’s friend, who was not in prison, “repeatedly . . .
requested [that Figler] visit [Rudin]; have the telephone block
removed; not postpone [Rudin’s] post conviction brief filing;
and send her a copy of the opening brief,” all to no avail.
Figler never filed anything with the state post-conviction
court. On April 5, 2006, 511 days after Figler was appointed,
Rudin moved to substitute counsel. In her motion, she
described Figler’s inadequacies and expressed her “grea[t]
RUDIN V. MYLES 15
concer[n] that she [was] not receiving adequate representation
regarding her post conviction.” At a hearing on July 17,
2006, the court granted her motion and, at the same time,
appointed attorney Christopher Oram, who continues to
represent Rudin on appeal, to represent her.9 The court filed
an order to that effect on August 17, 2006.
To summarize the facts leading up to this point: By
August 17, 2006, the day that Figler was relieved from his
duties to represent Rudin, almost two years had passed since
the day he was appointed to represent her. Early on in the
course of Figler’s representation, Rudin’s case was reassigned
to a new judge, who granted at least three of Figler’s requests
for additional time to file an “opening brief.” At no point did
the court ever mention the one-year limitations period under
Nevada state law, and at no point did the State raise
timeliness concerns. And while Figler regularly attended the
court’s status hearings, he appears to have done nothing else
in support of his client’s request for post-conviction relief.
Indeed, after June 2005, Figler stopped communicating with
his client altogether, by declining to visit her in prison and by
placing a collect call block on his office telephone. When
Figler’s representation ended, 842 days had passed since the
day Rudin’s one-year state limitations period began to run,
and 778 days had passed since the day her one-year AEDPA
limitations period began to run. Of those days, 645 and 581,
respectively, had run under Figler’s watch. And during that
time, Figler had filed nothing in either state or federal court.
9
Attached to Petitioner’s motion to substitute counsel was what she
called a “brief opening supplement,” presumably to her petition for post-
conviction relief. When the post-conviction court ruled on her motion,
however, it appears to have construed the filing solely as a motion to
substitute counsel, not as a petition for post-conviction relief.
16 RUDIN V. MYLES
2. Attorney Christopher Oram’s Representation
Oram’s representation began on August 17, 2006,10 and
has continued through the course of this appeal. Oram finally
filed a post-conviction petition in state court on August 21,
2007. Prior submissions or references to Rudin’s “opening
brief” notwithstanding, Oram’s August 21, 2007, submission
appears to have been the first and only petition for post-
conviction relief filed in the state court. It was filed three
years and 116 days after the state-law statute of limitations
began to run—or 846 days too late.
A colloquy between Oram, the post-conviction court, and
the State at a status conference on August 22, 2007,
demonstrates that, even at that late date, the parties were still
confused as to whether a petition for post-conviction relief
had actually been filed. Oram initially raised the issue by
suggesting that he re-label his most recent filing as a petition
for “a writ of habeas corpus” as opposed to a “supplement.”
The post-conviction court agreed and proceeded to find
“extraordinary circumstances” to excuse the delay in filing:11
MR. ORAM: [M]y fear is, as I look at the
statute, that – um – the one year deadline to
file, I looked at it and it said that – uh – the
court can excuse it, and can delay the process,
10
We consider Figler’s representation to have extended until the date on
which the court entered its order substituting counsel, which was August
17, 2006.
11
We assume that the post-conviction court’s reference to “extraordinary
circumstances” is equivalent to, or was intended to mean, “good cause,”
which is the standard to excuse a filing delay under Nevada Revised
Statute section 34.726.
RUDIN V. MYLES 17
which I assume was going on while Mr. Figler
was going through this. But perhaps I should
relabel the petition for writ of habeas corpus.
I may need to amend it today, just to say
where she’s located, because that’s what the
statute requires.
THE COURT: Okay. I may say you
should probably do that. Just do that as like a
one page sheet, like an errata to your deal.
MR. ORAM: Yes.
THE COURT: And the court will find, as
a matter of finding today, that [your] filing of
the writ for post-conviction relief is timely,
based upon – um – the fact that – uh – Mr.
Figler had the case for so many years. I
believe it was years.
MR. ORAM: It was two years. Yes, it was
two years.
THE COURT: It was two years, and filed
nothing, even though we kept having status
checks. So – um – we’re going to find that it
was timely filed.
....
Um – and it was an extensive trial. Didn’t it
take several weeks?
MR. ORAM: Ten weeks.
18 RUDIN V. MYLES
....
THE COURT: Ten week trial. So that
would be the extraordinary circumstance that
we would find would allow the petition for
post-conviction relief be filed. That, plus the
fact that the first attorney didn’t do anything.
At that point, and for the very first time in two years, the
State became aware that no petition had been filed and
decided to speak up:
[THE STATE]: I think, Judge, that sets a
bad precedent, in light of the fact that we can
get multiple attorneys, and every attorney that
gets this says, well, he had it too long, he had
it too long. We’d like to at least address that,
before you make that finding.
The post-conviction court obliged, declining to make a
finding until the State had the opportunity to address the issue
in further briefing. It noted, however, that “I really think that
the court is going to find, not only this court, but the next
court, is going to find that there were extraordinary
circumstances in this case, which would allow the court to
extend the one year deadline.” The State never did brief the
timeliness question, nor did it ever move to dismiss Rudin’s
petition.
On December 19, 2008, the post-conviction court held a
hearing to consider the merits of Rudin’s petition for relief.
At that hearing, the court questioned whether “the defense . . .
start[ed] out so far behind the starting line of this trial that no
matter how much time the [c]ourt gave them during the trial
RUDIN V. MYLES 19
. . . it ultimately [was] an unfair trial.” The post-conviction
court went on to state,
And there’s two standards for Strickland:[12]
One is was counsel effective, and then the
second standard is even if counsel wasn’t
effective was the evidence so overwhelming
. . . against the defendant [that] it wouldn’t
make any difference who defended her and
how prepared they were and how many
experts they called because the decision
would always be guilty of murder.
In this case I can’t say that that is true. I
didn’t try the case, but in reviewing the writ
filed by Mr. Oram and reviewing the response
by the State, and I had commented on the
22nd of October that the case was full of a
cast of characters together with witnesses, and
the case had a lot of intrigue and spins and
loops, and there was a lot of ulterior motives
on people who testified.
....
The experts couldn’t agree on much of
anything in this case as I read the dry record.
The proof of guilt was not a slam dunk by any
stretch of the imagination for the State, so I
can’t say – I cannot say in this case that no
matter who had defended her that the verdict
would have been the same.
12
Strickland v. Washington, 466 U.S. 668 (1984).
20 RUDIN V. MYLES
After hearing testimony from defense attorneys Pitaro and
Momot, the court granted Rudin’s request for post-conviction
relief and ordered her a new trial. The post-conviction court
described Rudin’s prior trial as a “mockery of our promise to
people who are in the criminal justice system that they will
have an adequate defense.”
The State appealed, arguing for the first time on appeal
that Rudin’s petition was untimely. In its brief, the State
confirmed what we think is suggested by the record: that “the
prosecution and the judge were under the mistaken
impression that an initial petition had been timely filed.”
The Nevada Supreme Court reversed the post-conviction
court’s judgment. It concluded that neither of that court’s
stated reasons for excusing Rudin’s delay “affords a factual
or legal basis to find that Rudin’s claims were not reasonably
available to be raised in a timely manner.” Rudin sought en
banc reconsideration, which the Nevada Supreme Court
denied on January 20, 2011. It was only after the Nevada
Supreme Court denied en banc reconsideration of Rudin’s
state post-conviction appeal that Oram filed an application for
habeas relief in federal court.
* * * * *
On April 25, 2011, Rudin, still represented by Oram,
applied for habeas relief in federal court. By that time,
almost seven years had passed since the deadline for seeking
a writ of certiorari from the U.S. Supreme Court, see
28 U.S.C. § 2244(d)(1)(A), making her application almost six
years too late under AEDPA. In her application, Rudin
contended that the Nevada Supreme Court erred in finding
her state-court petition for post-conviction relief time-barred
RUDIN V. MYLES 21
because either (1) the petition was timely, or (2) the State had
waived any argument to the contrary when it failed to make
a timeliness argument before taking its appeal. For those
reasons, according to Rudin, the federal district court should
have considered her state-court petition to be “properly filed”
and given her the benefit of statutory tolling of the AEDPA
limitations period. See 28 U.S.C. § 2244(d)(2). In the
alternative, Rudin argued that equitable tolling pursuant to
Holland v. Florida, 560 U.S. 631 (2010), also applied to her
case. The district court granted the State’s motion to dismiss,
dismissed Rudin’s petition with prejudice, and denied the
certificate of appealability. On October 24, 2012, we granted
Rudin’s request for a certificate of appealability on the
question “whether the district court properly determined that
the petition was barred by the statute of limitations.” We turn
now to that question.
II. DISCUSSION
We review de novo the question whether a petitioner’s
application for federal habeas relief was timely filed. Noble
v. Adams, 676 F.3d 1180, 1181 (9th Cir. 2012). We also
review de novo the question whether AEDPA’s statute of
limitations should be tolled. See Spitsyn v. Moore, 345 F.3d
796, 799 (9th Cir. 2003). Unless the facts are undisputed, we
review the district court’s findings of fact underlying a claim
for equitable tolling for clear error. Stancle v. Clay, 692 F.3d
948, 953 (9th Cir. 2012). The petitioner bears the burden to
establish that she is entitled to tolling of the AEDPA
limitations period. Id.
22 RUDIN V. MYLES
A. Statutory Tolling
We begin with Rudin’s argument that she is entitled to
statutory tolling of the AEDPA limitations period. On this
point, Rudin appears to argue that the Nevada Supreme Court
erred when it found her state post-conviction petition
untimely, and that had it not so erred, her petition would be
considered “properly filed” under 28 U.S.C. § 2244(d)(2),
entitling her to statutory tolling of the AEDPA limitations
period.13
13
In Coleman v. Thompson, 501 U.S. 722, 755 (1991), the Court noted
that a habeas petitioner may have a constitutional right to the assistance
of effective counsel in collateral proceedings, where state collateral review
is the first place a prisoner can present an ineffective assistance claim. See
id.; see also Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012) (“Coleman
v. Thompson left open . . . a question of constitutional law: whether a
prisoner has a right to effective counsel in collateral proceedings which
provide the first occasion to raise a claim of ineffective assistance at
trial.”). But see Buenrostro v. United States, 697 F.3d 1137, 1139–40 (9th
Cir. 2012) (“Martinez did not decide a new rule of constitutional law.”).
Rudin does not explicitly articulate a claim for ineffective assistance of
her state post-conviction relief counsel, but we notice that this claim
nonetheless pervades her claim for equitable tolling. Assuming arguendo
that Rudin had stated such a claim, and that this Court were to recognize
the constitutional right left open by Coleman and acknowledged by
Martinez, Rudin may have qualified for statutory tolling under 28 U.S.C.
§ 2244(d)(1)(D).
To state a claim for ineffective assistance of counsel, a habeas
petitioner must show both (1) deficient performance, and (2) stemming
from that deficient performance. Strickland, 466 U.S. at 687. Here,
although Rudin learned of Figler’s deficient performance by August 22,
2007 at the latest, she was not prejudiced by his deficient performance
until January 20, 2011, when the Nevada Supreme Court declined to toll
the time of Figler’s abandonment and barred Rudin’s state petition as
untimely. Accordingly, “the factual predicate” of her claim for ineffective
assistance of post-conviction relief counsel could not have been
RUDIN V. MYLES 23
While we may not have made the same decision as the
Nevada Supreme Court, we are not at liberty to second guess
that court’s decision when it was acting on direct appeal of
the state post-conviction court’s judgment. The state supreme
court concluded that Rudin’s petition was untimely under
state law, and “[w]hen a postconviction petition is untimely
under state law, that [is] the end of the matter for purposes of
§ 2244(d)(2).” Pace v. DiGuglielmo, 544 U.S. 408, 414
(2005) (internal quotation marks omitted) (second alteration
in original); accord Zepeda v. Walker, 581 F.3d 1013, 1018
(9th Cir. 2009). In light of Pace, and because the Nevada
Supreme Court is the final arbiter of Nevada state law, that is
the end of the matter here. Rudin is not entitled to statutory
tolling under § 2244(d)(2) for the duration of her state post-
conviction proceedings.14
B. Equitable Tolling
We turn, therefore, to Rudin’s argument that she is
entitled to equitable tolling under Holland v. Florida. A
petitioner is entitled to equitable tolling if she can establish
that (1) she was pursuing her rights diligently, but (2) some
discovered until January 20, 2011, 28 U.S.C. § 2244(d)(1)(D), and the
statutory limitations period for that claim would not have begun to run
until that date. See Hasan v. Galaza, 254 F.3d 1150, 1154–55 (9th Cir.
2001).
14
We likewise reject Rudin’s argument that she can claim the benefit of
equitable tolling in state court, thereby entitling her to statutory tolling in
federal court. Equitable tolling under Holland v. Florida is a federal
doctrine entirely separate from state law. See 560 U.S. at 650 (“Equitable
tolling [is] an inquiry that does not implicate a state court’s interpretation
of state law.”); see also Coleman, 501 U.S. at 732 (applying the
independent and adequate state ground doctrine to the habeas context).
24 RUDIN V. MYLES
extraordinary circumstance stood in her way. Pace, 544 U.S.
at 418; Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013)
(“[E]quitable 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.’ ” (second
alteration in original) (quoting Bills v. Clark, 628 F.3d 1092,
1097 (9th Cir. 2010)). Rudin bears a heavy burden to show
that she is entitled to equitable tolling, “lest the exceptions
swallow the rule,” Bills, 628 F.3d at 1097 (internal quotation
marks omitted); however, the grounds for granting equitable
tolling are also highly fact-dependent, Sossa, 729 F.3d at
1229. At bottom, the purpose of equitable tolling is to
“soften the harsh impact of technical rules which might
otherwise prevent a good faith litigant from having [her] day
in court.” United States v. Buckles, 647 F.3d 883, 891 (9th
Cir. 2011) (internal quotation marks omitted); see also
Holland, 560 U.S. at 650 (“[W]e have followed a tradition in
which courts of equity have sought to ‘relieve hardships
which, from time to time, arise from a hard and fast
adherence’ to more absolute legal rules, which, if strictly
applied, threaten the ‘evils of archaic rigidity.’ ” (quoting
Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238,
248 (1944))).
In Holland, the Supreme Court held that AEDPA’s
limitations period may be tolled for equitable reasons.
560 U.S. at 649. In that case, the petitioner’s attorney had
failed to file a timely application despite the petitioner’s
repeated requests to do so, failed to inform the petitioner
about crucial facts related to his case, and failed to
communicate altogether with his client over a period of
several years. Id. at 2564. The Supreme Court found those
circumstances to constitute more than a “garden variety claim
RUDIN V. MYLES 25
of excusable neglect,” and instead concluded that the
attorney’s egregious misconduct amounted to, in essence,
abandonment. Id.; id. at 2568 (Alito, J., concurring); see also
Maples v. Thomas, 132 S. Ct. 912, 923–24 (2012) (adopting
Justice Alito’s reasoning in Holland addressing attorney
abandonment).15 Because of that abandonment, the
petitioner’s delay could be deemed to result from misconduct
that could not constructively be attributed to him, and
therefore the AEDPA limitations period could potentially be
tolled for the relevant period of time. Holland, 560 U.S. at
652–53.
To be entitled to equitable tolling of the AEDPA
limitations period, Rudin thus bears the burden to prove that
she has been pursuing her rights diligently but that
extraordinary circumstances made it impossible for her to file
her application on time. See Pace, 544 U.S. at 418. Under
Holland, attorney abandonment may give rise to such
extraordinary circumstances. 560 U.S. at 652–53. “The
diligence required for equitable tolling purposes is
‘reasonable diligence,’ not ‘maximum feasible diligence.’ ”
Id. at 2565 (citations and second and third internal quotation
marks omitted). We readily conclude that extraordinary
circumstances in part gave rise to Rudin’s delay in filing her
application for federal habeas relief.
15
Mere negligence on the part of a prisoner’s post-conviction counsel
does not warrant equitable tolling. Holland, 560 U.S. at 651–52. “That
is so . . . because the attorney is the prisoner’s agent, and under ‘well-
settled principles of agency law,’ the principal bears the risk of negligent
conduct on the part of his agent.” Maples, 132 S. Ct. at 922 (quoting
Coleman, 501 U.S. at 753–54). But when an attorney abandons his client,
the principal-agent relationship is severed, and the attorney’s “acts or
omissions therefore ‘cannot fairly be attributed to [the client].’ ” Id. at
923 (alteration in original) (quoting Coleman, 501 U.S. at 753).
26 RUDIN V. MYLES
1. July 1, 2004, Through November 10, 2004
Between July 1, 2004, the day the AEDPA limitation
period began to run, and November 10, 2004, the day that
Figler was appointed to represent Rudin, Rudin was not
represented by counsel. During that time, Rudin cannot
establish that “extraordinary circumstances” existed to
equitably toll the AEDPA limitation period. See Roy v.
Lampert, 465 F.3d 964, 970 (9th Cir. 2006) (“[P]ro se status,
on its own, is not enough to warrant equitable tolling.”).
Thus, during that time, 133 non-tolled days passed on
Rudin’s AEDPA clock.
2. November 10, 2004, Through August 22, 2007
On November 10, 2004, Figler was appointed to represent
Rudin in her collateral review proceedings.16 After Figler
was appointed, however, he abandoned her. Over the course
of his period of representation, Figler visited Rudin in prison
only a handful of times, and by mid-2005, those visits had
stopped. He had a collect call block placed on his office
phone, making him all but impossible to reach. And while
we acknowledge that Figler physically attended the post-
conviction court’s status hearings, the record makes clear that
he did so with seemingly no intention to actually represent his
client. All the while, Figler failed to inform Rudin of the
reasons for his delay, providing her no clue of “any need to
protect [herself] pro se.” See Maples, 132 S. Ct. at 917. On
the record before us, it does not appear that anyone was
16
It is significant that Figler’s representation commenced before June
30, 2005—the last day of Rudin’s AEDPA limitation period. That is so
because extraordinary circumstances cannot toll a statute of limitations
that has already run.
RUDIN V. MYLES 27
aware of Rudin’s need to protect herself until at least
August 22, 2007. We therefore conclude that extraordinary
circumstances prevented Rudin from filing her application
for federal habeas relief between November 10, 2004, and
August 22, 2007.
Rudin was also diligent in pursuing her rights during that
time, beginning with her attempt to file pro per a petition for
post-conviction relief on November 10, 2004. Over the
course of Figler’s representation, Rudin made repeated
attempts to contact him, provided him with witness
information relevant to her case, and requested that he
provide her with copies of her files so that she could take
additional steps on her own behalf. When Figler repeatedly
failed to respond, Rudin prepared and filed her own motion
to substitute counsel, which had a “brief opening supplement”
attached to it. Until she filed that motion, Rudin had done
everything short of filing her own “opening brief,” which, as
the state court had already made clear, the local rules
prohibited her from doing. We conclude that Rudin was
“reasonably diligent” during the period of Figler’s
representation, which is all that is required for equitable
tolling purposes. See Holland, 560 U.S. at 653–54.
Rudin is therefore entitled to equitable tolling of the
AEDPA statute of limitations during the time in which Figler
was representing her and up until the point at which Oram
became aware that Figler had never filed anything on Rudin’s
28 RUDIN V. MYLES
behalf.17 That period of time ran from November 10, 2004,
to August 22, 2007.
The State argues that Rudin cannot avail herself of the
benefit of equitable tolling during that time because Figler
represented Rudin only in state court, not in federal court. On
that point, the State contends that Figler’s inadequacies in
state court had no bearing on Rudin’s ability to file a timely
federal application for relief. It argues that, pursuant to Pace,
Rudin should have filed a “protective” application in federal
court and asked the court to stay and abey its habeas
proceedings while she exhausted her state-court remedies.
544 U.S. at 416 (“A prisoner seeking state postconviction
relief [may file] a ‘protective’ petition in federal court and
as[k] the federal court to stay and abey the federal habeas
proceedings until state remedies are exhausted.”). Under the
specific circumstances of this case, we are not persuaded by
the State’s argument. See Holland, 560 U.S. at 632
(“[S]pecific circumstances . . . could warrant special
treatment in an appropriate case.”).
For all Rudin knew—and, indeed, until August 22, 2007,
for all the State knew—Rudin’s state-court petition had
already been filed, making her eligible for statutory tolling
under § 2244(d)(2). During the period that Figler had
represented her, almost every reference to the pending filing
was to an “opening” or “supplemental brief,” suggesting that
the court had already received her initial petition. Even the
State concedes that it believed that to be the case. During the
17
Regrettably, this Court has become familiar with Figler’s repeated
abandonment of his habeas clients. See, e.g., Gibbs v. LeGrand, 767 F.3d
879, 888 n.7 (9th Cir. 2014) (“Figler’s abandonment of both Gibbs and
Rudin is deeply troubling, to say the least.”).
RUDIN V. MYLES 29
period in which Rudin “lacked a clue” of any need to protect
herself, we decline to impute to her knowledge that neither
the State nor the court possessed. See Lott v. Mueller,
304 F.3d 918, 923 (9th Cir. 2002) (declining to impute to a
petitioner knowledge that, “[e]ven with the benefit of legal
training, ready access to legal materials and the aid of four
years of additional case law, . . . evaded both [petitioner’s]
appointed counsel and the expertise of a federal magistrate
judge”).18
18
The State filed a motion in this court to expand the record on appeal
to include various state-court documents that it had not, for whatever
reason, made a part of the record in the district court. As a general rule,
documents not filed with the district court cannot be made part of the
record on appeal. See Fed. R. App. P. 10(a) (“[T]he original papers and
exhibits filed in the district court; the transcript of proceedings, if any; and
a certified copy of the docket entries prepared by the district clerk . . .
constitute the record on appeal.”); Kirschner v. Uniden Corp. of Am.,
842 F.2d 1074, 1077 (9th Cir. 1988). There are of course narrow
exceptions to that general rule, which we may, in our discretion and in
“unusual circumstances,” invoke. Lowry v. Barnhart, 329 F.3d 1019,
1024–25 (9th Cir. 2003) (listing exceptions).
The State offers no compelling reason for its failure to make these
documents part of the record in the district court. Ironically, the reasons
it offers for doing so are the same reasons to which it objected when the
state post-conviction court found that Rudin had established good cause
for her filing delay: that “this is not a typical case,” that “Rudin’s trial was
one of the longest in Nevada history,” and that, overall, the proceedings
below were complex.
We do not need the documents that the State seeks to make part of the
record on appeal in order to decide this case. Thus, we decline to depart
from our general rule. The State’s motion to expand the record on appeal
is DENIED.
30 RUDIN V. MYLES
3. August 23, 2007, Through January 20, 2011
On August 22, 2007, at the status conference in the state
post-conviction court, the parties first became aware of the
fact that Figler had never filed a post-conviction petition in
state court. From that point forward, Rudin was put on notice
of the fact that nothing had been “properly filed” in either
state or federal court on her behalf. However, immediately
upon discovering Figler’s failure to file, the post-conviction
court found “extraordinary circumstances” that would
“extend the one year deadline.”
This finding, coupled with the state’s failure to brief the
timeliness question or move to dismiss Rudin’s petition,
“affirmatively misled” Rudin into believing that the state
court had excused her late filing and that her federal
limitations period would be statutorily tolled. See Sossa,
729 F.3d at 1232 (citing Pliler v. Ford, 542 U.S. 225, 234
(2004)). In Sossa, we held that where a petitioner was
affirmatively misled to believe that her limitations period was
being tolled under the statute, this inaccuracy could entitle
her to equitable tolling. See id. at 1232–35. Similarly here,
the state court’s finding of “extraordinary circumstances” led
Rudin to believe that her limitations period would be
statutorily tolled. By excusing Rudin’s delay in state court,
the state post-conviction court conveyed that Rudin’s state
petition was “properly filed” and, by extension, that her time
to file a federal petition would be extended under the statute.
See id. as 1233.19 Until the state court’s finding was
19
Contrary to the dissent, that Sossa considered the inaccuracy of
a federal magistrate judge’s instructions, rather than a state court judge’s
instructions, is immaterial. Sossa does not limit its reasoning to actions
by federal forums. See id. at 1235 (reasoning that the state bears
RUDIN V. MYLES 31
challenged or reversed—that is, as long as Rudin’s petition
was deemed “properly filed” by the state post-conviction
court—Rudin remained entitled to statutory tolling of the
federal clock. See 28 U.S.C. § 2244(d)(2).
Under Sossa, therefore, the inaccuracy of a state post-
conviction court’s extension of time may constitute an
“extraordinary circumstance” making it “impossible” to file
a petition on time, see Gibbs, 767 F.3d at 888 n.8 (citation
omitted) (internal quotation marks omitted). Reasonable
diligence did not require Rudin to foresee the error in the
post-conviction court’s timeliness ruling—especially where,
as here, the state acquiesced in the extension of time. See
Gibbs, 767 F.3d at 890–91 (To expect a petitioner to file a
federal petition while her state proceedings are still pending
“improperly raises the standard from ‘reasonable’ to
‘maximum feasible’ diligence.” (quoting Holland, 560 U.S.
at 653)).
responsibility for objecting to extensions of time, lest it “lie in wait . . .
and only thereafter oppose a petition as untimely”); see also Pliler
542 U.S. at 235 (O’Connor, J., concurring) (providing the fifth vote for the
majority and stating that “if the petitioner is affirmatively misled, either
by the court or by the State, equitable tolling might well be appropriate”
(emphasis added)). Sossa’s reasoning is explicitly intended to protect
habeas petitioners who are “affirmatively misled,” by courts or
prosecutors, into believing their petitions have been timely filed.
Similarly, that Sossa dealt with the inaccurate extension of a federal
limitations period, rather than a state limitations period, is also immaterial.
Because the federal limitations period is automatically extended by a
“properly filed” state limitations period, 28 U.S.C. § 2244(d)(2), a federal
habeas petitioner may be entitled to equitable tolling where, as here, a
state court erroneously extends the state limitations period and, by
extension, the federal statutory limitations period.
32 RUDIN V. MYLES
The post-conviction court’s timeliness finding was
integrated into a final adjudication on December 31, 2008,
when the state post-conviction relief court issued an order
granting Rudin’s state habeas petition. Rudin therefore
continued to benefit from the post-conviction court’s finding
of “extraordinary circumstances” until the Nevada Supreme
Court reversed the grant of habeas relief on January 20, 2011.
Following the post-conviction court’s initial finding of
extraordinary circumstances, Rudin diligently pursued her
then-“properly filed” state petition, and pursued her rights in
federal court promptly after her state post-conviction
proceedings were no longer pending. See 28 U.S.C.
§ 2244(d)(2). Unlike the petitioner in Pace, 544 U.S. at
410–11, who waited over seven years after the first state court
decision found his petition untimely, Rudin waited only three
months after the Nevada Supreme Court denied her
relief—from January 20 to April 25, 2011—before filing her
federal petition. Rudin’s failure to file a protective petition
in federal court before her state petition was deemed
untimely, in reliance first on the state post-conviction court’s
timeliness finding and later on that court’s grant of relief, did
not undermine Rudin’s diligent pursuit of her rights. See
Sossa, 729 F.3d at 1229, 1237 (holding petitioner entitled to
equitable tolling where he reasonably relied on a magistrate
judge’s orders extending his habeas filing deadline).
To the contrary, once the state post-conviction relief court
excused Rudin’s delay and deemed her petition “properly
filed,” Rudin remained entitled to statutory tolling in federal
court. See Pace, 544 U.S. at 417. What’s more, once the
state post-conviction relief court granted Rudin’s petition for
habeas relief, Rudin could not have filed a protective federal
habeas petition that would have been ripe for review.
RUDIN V. MYLES 33
Because Rudin prevailed in the state post-conviction court,
she had no adverse ruling to challenge in a federal petition.
Until the Nevada Supreme Court ruled, Rudin could not have
known whether she would even need the intervention of the
federal courts. Further federal proceedings would have been
unnecessary unless and until the Nevada Supreme Court
reversed the grant of relief. Unlike Pace, where the state
courts repeatedly and consistently found petitioner’s filings
untimely, Pace, 544 U.S. at 410–11, no state court found
Rudin’s petition untimely until the Nevada Supreme Court
entered judgment in January 2011. To require Rudin to have
anticipated the Nevada Supreme Court’s reversal by filing a
protective petition in federal court would undermine the state
post-conviction relief court’s authority and would hold Rudin
to a standard higher than reasonable diligence. See Holland,
560 U.S. at 653; see also Gibbs, 767 F.3d at 890–91.
* * * * *
In sum, we conclude that Rudin has satisfied her burden
to show that she is entitled to equitable tolling of the AEDPA
limitations period until January 20, 2011, when the
extraordinary circumstances making it impossible for her to
file her federal petition on time were removed. See Sossa,
729 F.3d at 1229. After that date, AEDPA’s one-year
limitations period resumed, giving Rudin until September 9,
2011 to file her petition for federal habeas relief in the district
court. Because Rudin filed her petition on April 25, 2011,
within the tolled limitations period, we conclude that her
petition was timely filed.
34 RUDIN V. MYLES
III. CONCLUSION
We REVERSE the district court’s dismissal of Rudin’s
petition and REMAND for further proceedings consistent
with this opinion. For the reasons explained earlier, we
DENY the State’s motion to expand the record on appeal.
ADELMAN, District Judge, concurring:
I join the court’s opinion in full. I add only that a
contrary result would require “the essentially pointless early
filing of federal petitions,” Brooks v. Williams, No. 2:10-cv-
00045, 2011 WL 1457739, at *4 (D. Nev. Apr. 14, 2011), by
prisoners who reasonably believe that their claims are
properly pending, unexhausted, in state courts. See Gibbs v.
Legrand, 767 F.3d 879, 890–91 (9th Cir. 2014); see also Pace
v. DiGuglielmo, 544 U.S. 408, 416 (2005) (indicating that a
prisoner’s “reasonable confusion about whether a state filing
would be timely” will ordinarily constitute good cause for a
protective federal petition).
Requiring a protective filing would be particularly
pointless in this case. By August 2007, the federal habeas
statute of limitations had long since run. Unlike in Pace,
where the prisoner could have filed a protective petition
during the state post-conviction proceedings but before the
federal statute ran, in the present case any protective petition
Rudin might have filed after August 2007 would not have
protected anything. See, e.g., Urrizaga v. Attorney General
for Idaho, No. CV-07-434, 2008 WL 1701735, at *3 (D.
Idaho Apr. 9, 2008) (dismissing as untimely protective
RUDIN V. MYLES 35
petition filed after the statute of limitations had already
expired).
O’SCANNLAIN, Circuit Judge, dissenting:
I joined Judge Murguia’s original opinion for the Court,
Rudin v. Myles, 766 F.3d 1161 (9th Cir. 2014), and regret that
she has changed her view. She was right then, and I believe
her original view is still correct. We are all agreed that Rudin
is entitled to equitable tolling for the period between
November 10, 2004 and August 22, 2007. See Majority at
26–29. During that time period, Rudin faced the
extraordinary circumstance of being abandoned by her
lawyer, Dayvid Figler, and diligently pursued her rights. See
Holland v. Florida, 560 U.S. 631, 652–54 (2010). However,
I cannot join the Court’s new conclusion that Rudin is entitled
to equitable tolling after August 22, 2007. In my view, the
statute of limitations expired on April 11, 2008, over three
years before she filed the instant petition.1 Therefore, I
respectfully dissent.
I
Under AEDPA, “equitable tolling is available ‘only when
extraordinary circumstances beyond a prisoner’s control
1
As the majority points out, Rudin is not entitled to equitable tolling
between July 1, 2004—the date the AEDPA limitations period began to
run—and November 10, 2004—the date Figler was appointed. See
Majority at 26. Thus, as of August 23, 2007, Rudin had 232 days to file
her federal petition. When she failed to file by April 11, 2008, the statute
of limitations expired.
36 RUDIN V. MYLES
make it impossible to file a petition on time and the
extraordinary circumstances were the cause of [the
prisoner’s] untimeliness.’” Sossa v. Diaz, 729 F.3d 1225,
1229 (9th Cir. 2013) (emphasis in original) (quoting Bills v.
Clark, 628 F.3d 1092, 1097 (9th Cir. 2010)). And even if a
prisoner can show such extraordinary circumstances, she
must also demonstrate that she pursued her rights with
“reasonable diligence.” Holland, 560 U.S. at 653. Indeed,
“the threshold necessary to trigger equitable tolling [under
AEDPA] is very high, lest the exceptions swallow the rule.”
Bills, 628 F.3d at 1097. With these principles in mind, I turn
to the relevant facts of this case.
II
The majority asserts that the events of a state court status
conference, which took place on August 22, 2007,
“affirmatively misled” Rudin with respect to the deadlines for
her federal habeas petition, Majority at 30, and therefore
holds that Rudin’s failure to file a timely federal petition may
be excused. That conclusion, however, cannot be squared
with the record or our precedents.
Even if the status conference were an “extraordinary
circumstance” for AEDPA purposes, Rudin failed to act with
reasonable diligence to protect her rights.2 On August 22,
2007, Rudin, her attorney, the prosecution, and the state post-
conviction court first became aware that Figler had never
filed a post-conviction petition in state court. The court
2
The majority conflates the concepts of statutory tolling and equitable
tolling. Here, there is no dispute that Rudin is not entitled to statutory
tolling. Thus, the majority’s attempt to recast a losing statutory tolling
argument in terms of equitable tolling is unpersuasive.
RUDIN V. MYLES 37
informed the parties, however, that due to the “extraordinary
circumstances” of Figler’s failure to file, it would “extend the
one year deadline” to file a state habeas petition.3 Based on
3
The majority says that such a ruling, “coupled with the state’s failure
to brief the timeliness question or move to dismiss Rudin’s petition,
‘affirmatively misled’ Rudin.” Majority at 30 (emphasis added). It is
unclear, however, what authority supports the position that the state’s
failure to do something can amount to affirmative misleading. The
majority cites Sossa but Sossa actually suggests that a state, as an
opposing party, has no authority to extend the statutory deadline
established by Congress and therefore the state’s actions (or, in this case,
inactions) should not influence the petitioner. See Sossa, 729 F.3d at 1235
n.9 (citing Johnson v. Quarterman, 483 F.3d 278 (5th Cir. 2007)). In any
event, the state’s failure to object to the timeliness question applied to the
state petition and thus would not affect Rudin’s assessment of her federal
petition.
For that same reason, the majority is incorrect in relying on Sossa to
assert that the events of the August 22, 2007 conference were an
extraordinary circumstance under AEDPA. In Sossa, we held that when
a prisoner is “affirmatively misled” by a federal magistrate judge
regarding AEDPA’s deadlines, the petitioner may be entitled to equitable
tolling. 729 F.3d at 1232 (citing Pliler v. Ford, 542 U.S. 225, 235 (2004)
(O’Connor, J., concurring)). We determined that when a federal
magistrate judge granted multiple extensions for the prisoner to file his
federal habeas petition, such extensions effectively instructed the prisoner
that if he followed the court’s schedule, his federal filing would be
deemed timely. Id. at 1235.
In contrast, the majority here focuses on a state court’s instruction
regarding a state habeas petition. Unlike Sossa, neither the parties nor the
court discussed the federal petition. Thus, rather than “affirmatively
misle[ading]” Rudin in any way as to the AEDPA statute of limitations,
if anything the status conference made Rudin aware that her state petition
had not been properly filed and notified her that she should file a
protective federal petition. See Pace v. DiGuglielmo, 544 U.S. 408, 416
(2005).
38 RUDIN V. MYLES
these events, the majority makes the extraordinary leap that
Rudin was excused from doing anything with respect to her
federal petition for post-conviction relief for well over three
years. See Majority at 30–31.
In fact, however, Rudin was under a duty to pursue her
rights diligently. See Holland, 560 U.S. at 653. As the
majority recognizes, as of the August 22, 2007 conference,
Rudin and her new attorney, Christopher Oram, were “put on
notice of the fact that nothing had been ‘properly filed’ in
either state or federal court on her behalf.” Majority at 30.
With such knowledge, Rudin was not excused from taking
action. Rather, she needed to act—with “reasonable
diligence”—to preserve her right to challenge her conviction.
See Holland, 560 U.S. at 653. Indeed, the Supreme Court has
spelled out precisely what steps Rudin should have taken as
soon as she and Oram were aware that there were potential
timeliness issues with the state petition.
In Pace v. DiGuglielmo, the Court instructed that if a state
prisoner is faced with uncertainty about whether her state
post-conviction petition is timely, she should “fil[e] a
‘protective’ petition in federal court and ask[] the federal
court to stay and abey the federal habeas proceedings until
state remedies are exhausted.” 544 U.S. at 416; see also
Lakey v. Hickman, 633 F.3d 782, 787 (9th Cir. 2011) (“Pace
Moreover, the majority does not explain what inaccuracy actually
affirmatively misled Rudin. Sossa holds that “‘[i]n order to show that he
was affirmatively misled, [a habeas petitioner] need[s] to point to some
inaccuracy in the district court’s instructions’ to him, not merely to his
‘misunderstanding of accurate information.’” Sossa, 729 F.3d at 1233
(quoting Ford, 590 F.3d at 788). Whereas Sossa identified such an
inaccuracy, see id., Rudin—and the majority—cannot. Sossa, in short,
does not govern here.
RUDIN V. MYLES 39
also explicitly advised state prisoners . . . to file a protective
federal petition to avoid a possible timeliness bar.”). Rudin
not only failed to file such a protective petition, she failed to
file anything in federal court over the next three years.
The majority’s bare assertion that Rudin diligently
pursued her rights does not make it so. That “Rudin waited
only three months after the Nevada Supreme Court denied her
relief—from January 20[, 2011] to April 25, 2011—before
filing her federal petition” is completely beside the point.
Majority at 32. Indeed, even if the August 22, 2007
conference were an “extraordinary circumstance” that would
qualify for equitable tolling purposes, Rudin must still show
she acted with reasonable diligence between August 22, 2007
and April 25, 2011. See Pace, 544 U.S. at 418. The majority
fails to demonstrate—nor could it, in light of the
record—how Rudin acted with reasonable diligence for the
duration of the relevant time period.
The August 22, 2007 conference did not excuse Rudin
from acting, but rather armed her with knowledge that should
have spurred her to protect her rights. Rudin did not file
anything in federal court until April 25, 2011, over three
years and eight months later. “Such a delay does not
demonstrate the diligence required for application of
equitable tolling.” White v. Martel, 601 F.3d 882, 885 (9th
Cir. 2010). Thus, even if the status conference were an
extraordinary circumstance, as the majority asserts, Rudin is
not entitled to equitable tolling beyond that date.
III
For the foregoing reasons, I would affirm the judgment of
the district court.