Rudin v. Myles, No. 12-15362 (Murguia with Adelman (E.D. Wisc.); dissent by O'Scannlain) ---

 

Changing its prior ruling in this case, the Ninth Circuit reversed the district court's dismissal of this 28 U.S.C. § 2254 habeas petition as untimely, finding enough equitable tolling (for a variety of reasons) to render the petition timely filed. The panel remanded the case to the district court for a determination of the merits of the petitioner's claims.

The petitioner was convicted in a Nevada trial court of first-degree murder in connection with the death of her husband. Second-chair trial counsel, who was appointed to her case after the trial began, described lead counsel's representation as a sham, a farce, and a mockery. On direct appeal, the Nevada Supreme Court expressly deferred any ineffective-assistance claim to state habeas proceedings. But the petitioner's first appointed state habeas counsel abandoned representing the petitioner, and the state habeas court rejected the petitioner's attempt to submit a pro se petition. Eventually the state habeas court held a hearing at which it substituted counsel for the petitioner and discussed when an "opening brief" in the state habeas case would be filed -- indicating some confusion about whether a formal state habeas petition had been filed. Because of counsel's abandonment of the representation, the state habeas court indicated that it would find good cause to excuse the failure to comply with the state habeas limitations period. The state did not challenge this conclusion, and ultimately the state habeas court granted relief to the petitioner. The state appealed this conclusion to the Nevada Supreme Court, arguing for the first time on appeal that the state habeas petition was untimely. The Nevada Supreme Court agreed and reversed the grant of relief. Three months after this decision, the petitioner filed her § 2254 petition in federal district court. Finding no equitable tolling sufficient to cover the period of time that the state habeas proceedings were pending, the district court dismissed the petition as untimely.

In the panel's initial opinion in this case, the court ruled that the petitioner was entitled to equitable tolling for the period of time during which the petitioner's first state habeas counsel was on the case, because he abandoned the petitioner within the meaning of Holland v. Florida, 560 U.S. 631 (2010). State habeas counsel did not act on the petitioner's attempt to file a pro se state habeas petition, blocked collect calls from his office telephone, and did not meet with the petitioner at her place of incarceration in suburban Las Vegas. The panel continued to hold that the petitioner was entitled to equitable tolling for this period of time.

But after considering the petitioner's request for reheairng and the amicus curiae brief filed by the Nevada Federal Public Defender, Judge Murguia did change her view about equitable tolling during the remainder of state habeas proceedings. This reasssessment changed the outcome of the case. The state habeas court's finding of good cause to excuse the late filing of a state habeas petition under state law triggered statutory tolling of the federal habeas limtiations period under 28 U.S.C. § 2244(d)(2) and Pace v. DiGuglielmo, 544 U.S. 408 (2005). The Nevada Supreme Court's subsequent reversal of this decision -- in the face of an argument made by the state for the first time on appeal from the grant of state habeas relief -- affirmatively misled the petitioner into believing that she did not need to file a protective § 2254 petition in order to guard against the running of the federal habeas limitations period while state habeas proceedings were ongoing. "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 to the extension of time." Accordingly, the petitioner was entitled under Sossa v. Diaz, 729 F.3d 1225 (9th Cir. 2013), to equitable tolling of the period of time while she had appointed counsel to assist in state habeas proceedings, including the state's appeal from the grant of relief. This meant that her federal habeas petition was timely filed, and the district court's contrary conclusion was wrong.

District Judge Adelman, who had dissented from the panel's original opinion, concurred in the result, pointing out that the panel's original decision required prisoners in the Ninth Circuit to file pointless protective habeas petitions to guard against the possibility of appellate reversal of grants of state habeas relief.

Judge O'Scannlain now dissented from the panel's holding, arguing that the petitioner should have known at the time the state habeas court appointed new counsel for her that no state habeas petition had been filed, and acted then to preserve her right to federal habeas review by filing a protective petition. For Judge O'Scannlain, the fact that a state habeas court ruled that the petition was timely and the petitioner's adversary was not challenging that ruling gave rise to an "uncertainty" under Pace that required the petitioner to file a protective habeas petition in federal court.

This case is still ongoing, for the panel expressly said that it would entertain further petitions for rehearing based on the new opinion.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2015/03/10/12-15362.pdf