Porter v. Ollison, No. 07-55305 (7-29-10) (Hart, D.J. N. Dist. Ill., with Gould and Bea). This is a post-Holland case regarding equitable tolling. The 9th considers whether there should be an evidentiary hearing to determine if counsel's actions were so egregious that the petitioner was prevented from timely filing. As the court states:
The only question is whether, on preliminary review, the federal habeas petition was properly dismissed as untimely without responsive briefing and an evidentiary hearing. The principal issue is the possible application of equitable tolling based on misconduct by an attorney who resigned from the State Bar of California (the "Bar") while facing disciplinary proceedings for running a habeas corpus "writ mill." On preliminary review, it cannot be conclusively determined that the federal petition was untimely. For the reasons that follow, we vacate the district court order denying Porter's habeas petition as untimely and remand on the ground further factual development will be necessary before a conclusion can be made with respect to the timeliness of Porter's petition.
Id. at *1. The lawyer was running a habeas mill, where he solicited clients, and then did no work -- hiring law students to write petitions without supervision, not paying attention to deadlines, abandoning clients, and so forth. The State, however, argues that petitioner had only asked for his files once, which did not show diligence. The 9th notes:
It is contended that Porter did not act diligently because the filing of the February 2005 California Supreme Court petition shows that he had the ability to file a habeas petition without the return of his files and without the assistance of Dangler. However, depending on further factual development, it would be possible to find, as in Holland and Spitsyn, that Porter acted diligently because he, his mother, and others continually contacted Dangler and Rector until it became apparent in February 2005 that neither would be providing further representation. In this case's present posture, it cannot be conclusively determined that Porter would not be able to show that the effects of Dangler's dishonest and bad faith representation carried over from when he was first retained in November 2001 until February 2005.
Id. at *8. A hearing will develop the necessary facts so as to rule on dilligence.
U.S. v. Gallegos, No. 07-30199 (7-30-10) (Mosman, D.J. D. Ore.), with W. Fletcher and Rawlison). The defendant plead guilty to illegal reentry, but before sentencing, attempted his own departure by escaping. He was soon caught and charged also with escape, to which he plead guilty. At sentencing, the court stripped him of acceptance of responsibility, and adjusted upwards for obstruction on the illegal reentry. The court then bemoaned defendant's long criminal history, and sentenced him to 40 months on the illegal reentry and then 40 months on the escape, with 20 months of the latter to run concurrent with the former. The defendant appealed, arguing that this partial concurrent/consecutive sentence violated 3584. The 9th analyzed 3584, and although the statute does not expressly permit such mix-and-match, the intent is there to allow a court to fashion an appropriate sentence with two offenses. It was not plain error. The court also did not plainly err in refusing acceptance and enhancing for obstruction. The two adjustments serve different purposes.