FILED
NOT FOR PUBLICATION
JUN 05 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN VALENZUELA, No. 15-56971
Petitioner-Appellant, D.C. No.
2:10-cv-02428-DSF-DFM
v.
L. SMALL, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted May 8, 2017
Pasadena, California
Before: KOZINSKI and OWENS, Circuit Judges, and SETTLE,** District
Judge.
To justify equitable tolling, Valenzuela must show that he diligently pursued
his rights and that an extraordinary circumstance “stood in his way” and prevented
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
page 2
timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). “[S]erious instances
of attorney misconduct” can create an extraordinary circumstance sufficient to
justify equitable tolling. Id. at 652; Doe v. Busby, 661 F.3d 1001, 1012–14 (9th
Cir. 2011). We apply this standard leniently when a prisoner proceeds pro se. Fue
v. Biter, 842 F.3d 650, 657 (9th Cir. 2016) (en banc).
The effects of Melson’s undisputed misconduct, evidenced by professional
misconduct findings and an actual State Bar suspension, lingered beyond the
period of his formal representation. As a result of Melson’s misbehavior,
Valenzuela was left to personally draft and file his state habeas petition from
prison, a decade after his initial conviction, without a single exhausted claim. See
28 U.S.C. § 2254(b)(1)(A). Valenzuela was entitled to adequate time to exhaust
his claims in state court and prepare a federal habeas petition.
Melson’s conduct was sufficiently extraordinary to justify equitable tolling
not only for the period of his representation, but also for the period (from
November 6, 2008 to July 8, 2009) in which Valenzuela’s properly filed pro se
petitions were pending before the California Court of Appeal and the California
Supreme Court. Valenzuela’s federal filing was thus timely.
VACATED AND REMANDED.
FILED
Juan Valenzuela v L. Small 15-56971
JUN 05 2017
SETTLE, District Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the judgment reached by the court. In my view, the impediment
that stood in Valenzuela’s way from November 6, 2008 to July 8, 2009 was the
absence of an exhausted claim. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th
Cir. 2006) (“Once a district court determines that a habeas petition contains only
unexhausted claims, it need not inquire further as to the petitioner’s intentions.
Instead, it may simply dismiss the habeas petition for failure to exhaust.”).
Although this impediment stood in Valenzuela’s way, our circuit recently held that
district courts may accept petitions asserting only unexhausted claims. Mena v.
Long, 813 F.3d 907, 912 (9th Cir. 2016).