NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 10 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD F. WEAVER, Jr., No. 22-35182
Petitioner-Appellee, D.C. No. 2:16-cv-02226-MO
v.
MEMORANDUM *
BRIGITTE AMSBERRY,
Respondent-Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted April 20, 2023
Portland, Oregon
Before: RAWLINSON, BEA, and SUNG, Circuit Judges.
Concurrence by Judge RAWLINSON.
Brigitte Amsberry, the Superintendent of an Oregon prison, appeals the
district court’s judgment granting a writ of habeas corpus to Richard F. Weaver, Jr.,
an inmate in the custody of the State of Oregon. Amsberry argues that the district
court’s decisions which (1) granted equitable tolling of the statute of limitations for
Weaver’s claim, and (2) granted relief on Weaver’s claim of ineffective assistance
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
of counsel, were erroneous. The parties are familiar with the facts and procedural
history, so we do not recite them here. For the reasons stated below, we affirm.
1. We review the district court’s decision to grant equitable tolling de
novo. Fue v. Biter, 842 F.3d 650, 653 (9th Cir. 2016) (en banc). However, any
underlying determinations of fact are reviewed for clear error. Miles v. Prunty, 187
F.3d 1104, 1105 (9th Cir. 1999); see also United States v. Hinkson, 585 F.3d 1247,
1251 (9th Cir. 2009) (en banc) (“[W]e will affirm a district court’s factual finding
unless that finding is illogical, implausible, or without support in inferences that may
be drawn from the record.” (footnote omitted)). In the same way, the district court’s
decision to grant a writ of habeas corpus is reviewed de novo and any underlying
factual determinations are reviewed for clear error. Lambert v. Blodgett, 393 F.3d
943, 964 (9th Cir. 2004).
2. We affirm the district court’s grant of equitable tolling of the statute of
limitations. The diligence required for equitable tolling is “reasonable diligence, not
maximum feasible diligence.” Holland v. Florida, 560 U.S. 631, 653 (2010)
(quotation marks omitted) (citing Lonchar v. Thomas, 517 U.S. 314, 326 (1996)).
The court must assess “a petitioner’s diligence before, during, and after the
extraordinary circumstance existed.” Smith v. Davis, 953 F.3d 582, 589 (9th Cir.
2020) (en banc). We have said that “bright-lines” are generally not appropriate in
the equitable tolling inquiry, see Fue, 842 F.3d at 654 (quoting Doe v. Busby, 661
2
F.3d 1001, 1015 (9th Cir. 2011)), and that the equitable tolling analysis must be a
“fact-specific inquiry,” Smith v. Davis, 953 F.3d 582, 591 (9th Cir. 2020) (en banc).
Under most factual conditions, “reasonable diligence” will not require a
petitioner to expend significant effort to prepare a federal post-conviction petition
during the pendency of his state post-conviction proceeding. See Pace v.
DiGuglielmo, 544 U.S. 408, 419 (2005) (analyzing equitable tolling with an
assessment of the petitioner’s diligence before and after the state post-conviction
proceedings, but not during the proceedings); Gibbs v. Legrand, 767 F.3d 879, 890
(9th Cir. 2014) (holding that a petitioner should not be required to “proceed on a
dual track with his own petition” in both state and federal courts (quoting Busby, 661
F.3d at 1014)).
First, the district court did not clearly err in finding that “reasonable diligence”
does not require an inmate to begin preparation of a federal petition during the
pendency of state post-conviction proceedings because, if the state courts rule in the
inmate’s favor, the preparation of a federal petition would have been a waste of time
and effort. See Munoz v. Rowland, 104 F.3d 1096, 1098 (9th Cir. 1997) (release of
a prisoner moots a habeas corpus case).
Second, the district court did not clearly err in finding that “reasonable
diligence” does not require an inmate to begin preparation of a federal petition during
the pendency of state post-conviction proceedings because a federal petition must be
3
based on what happened in the state post-conviction proceedings. A federal
petitioner must allege in his petition that the state proceedings either (1) “resulted in
a decision that was contrary to, or involved an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United States,”
or (2) “resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.” 28 U.S.C.
§ 2254(d); see Brown v. Payton, 544 U.S. 133, 141 (2005). Thus, the basis of a
federal petition does not exist until the state proceedings reach their conclusion. It
would not be reasonable to require an inmate to predict the result of pending state
proceedings to prepare a federal petition.
We therefore find no clear error in the district court’s factual finding that
Weaver exercised reasonable diligence in the preparation and filing of his federal
petition, even though Weaver did not expend significant efforts to prepare his federal
petition during the pendency of his state post-conviction proceedings. We therefore
affirm the district court’s order granting equitable tolling of the statute of limitations.
3. We also affirm the district court on the merits of Weaver’s claim. The
state court found that “Obert did not talk to any of the fact witnesses, did not talk to
the State’s expert witnesses and did not talk directly to Dr. Gordon.” The state court
also found that “Obert did not subpoena nor make any other arrangements for Dr.
Gordon to testify.” The state court recognized that Obert rendered deficient
4
performance “in failing to subpoena or otherwise arrange for the testimony of Dr.
Gordon at trial.”1 However, the state court ruled against Weaver on the prejudice
prong of the ineffective assistance analysis set forth in Strickland v. Washington,
466 U.S. 668 (1984), holding that “there is no evidence that [Weaver] was aware
that Dr. Gordon was not available to testify at trial. Thus there is no evidence that
Dr. Gordon’s absence for trial had any impact on the guilty plea.” 2
However, the evidence clearly demonstrates that this conclusion is erroneous:
Obert’s lack of preparedness was, in fact, readily apparent to Weaver.
1
Weaver also alleges a second theory of deficient performance. According to
Weaver, Obert told Weaver that “the Judge and the DA weren’t going to allow
[Weaver’s diminished capacity defense] and didn’t want to hear it.” Because the
state courts refused to address this portion of Weaver’s claim, it was within the
district court’s province to conduct a de novo review. Porter, 558 U.S. at 39;
Rompilla, 545 U.S. at 390. The question would then turn to whether Weaver’s
allegations are credible. That credibility determination should generally be made in
the context of an evidentiary hearing in the district court. See Earp v. Ornoski, 431
F.3d 1158, 1170 (9th Cir. 2005). But we need not decide whether the district court
should have held an evidentiary hearing on this issue because habeas relief is merited
on other grounds, as explained above the line.
2
In assessing the prejudice to the defendant, the court asks whether the outcome of
the proceeding would have been different. “[W]here [the habeas petitioner] pleaded
guilty and no trial occurred, [the petitioner] is not required to show that he would
have fared better at trial to prove prejudice. Rather, [the petitioner] must
demonstrate that absent his attorney’s incompetence, [the petitioner] would
‘rationally’ have ‘rejected the plea bargain’ and would ‘either have gone to trial or
received a better plea bargain’ instead.” United States v. Rodriguez, 49 F.4th 1205,
1213 (9th Cir. 2022) (quoting United States v. Rodriguez-Vega, 797 F.3d 781, 788
(9th Cir. 2015)) (alterations adopted).
5
The record evidence shows that Weaver understood Obert’s lack of
preparedness through Weaver’s numerous unreturned phone calls to Obert’s office
and complaints to the trial judge regarding Obert’s lack of preparatory
communication; through Weaver’s repeated suggestions that Obert should be fired
for his lack of preparation; through his statements to his mother prior to trial, which
indicated that Weaver was “very worried because Mr. Obert never talked to him
about Dr. Gordon or anything Mr. Howell had prepared”; and through Weaver’s
testimony that Obert’s lack of preparedness had caused Weaver to feel “super-
stressed out and crazy” on the day of trial. Further, Howell had told Weaver that Dr.
Gordon would need to see Weaver again before trial, and even Obert had suggested
in his first meeting with Weaver that another meeting between Dr. Gordon and
Weaver would be necessary, but Weaver never saw Dr. Gordon again prior to trial
and never received any follow-up from Obert regarding the possibility of Dr. Gordon
testifying at trial.
The state court’s hyper-technical assessment of prejudice was an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding. Brown, 544 U.S. at 141. The record mandates a different conclusion:
Obert’s failure to conduct any preparation for trial was readily apparent to Weaver,
including Obert’s failure to prepare Dr. Gordon for trial and to secure Dr. Gordon’s
attendance at trial.
6
4. The question then turns to whether Weaver would have gone to trial in
the hypothetical scenario where Obert had properly prepared for trial. When we
conduct this analysis, “we are limited to evidence contemporaneous to the guilty
plea.” See United States v. Rodriguez, 49 F.4th 1205, 1214 (9th Cir. 2022). That is,
we cannot accept Weaver’s testimony in post-conviction proceedings regarding
what he would have done in that hypothetical scenario.
Nonetheless, Weaver’s intent to go to trial is obvious from the record.
Testimony from Obert, Weaver, Howell, and Weaver’s mother demonstrates that
Weaver was adamant on proceeding to trial. In fact, Weaver’s actions demonstrate
an enthusiasm for his diminished-capacity defense. When Obert presented the
possibility of a plea agreement for 180 months of incarceration, Weaver rejected this
option. Obert’s notes from the morning of trial indicate that Weaver was “prepared
for trial—w[ith]o[ut] ques[tion].” Obert relayed to Weaver a plea offer from the
prosecution which would result in Weaver being sentenced to 300 months of
incarceration, but Weaver rejected this offer and told Obert that he wanted to go to
trial.
On this record, it is clear that Obert’s performance was the difference between
Weaver pleading guilty and proceeding to trial. Thus, both the deficient
performance and prejudice prongs of Strickland are met, and Weaver is entitled to
7
relief on his claim of ineffective assistance of counsel. See Lee v. United States, 137
S. Ct. 1958 (2017).
AFFIRMED.
8
FILED
Weaver v. Amsberry, Case No. 22-35182
MAY 10 2023
Rawlinson, Circuit Judge, concurring in the result:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the result.
1
Richard Weaver, Jr. v. Brigitte Amsberry
Combined Opinion