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«GEORGE W. GIBBS, No. 12-16859 Petitioner-Appellant, D.C. No. v. 2:11-cv-00750- KJD-CWH ROBERT LEGRAND, Warden; ATTORNEY GENERAL FOR THE STATE OPINION ...»

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GEORGE W. GIBBS, No. 12-16859


D.C. No.

v. 2:11-cv-00750-






Appeal from the United States District Court for the District of Nevada Kent J. Dawson, Senior District Judge, Presiding Argued and Submitted March 13, 2014—San Francisco, California Filed September 17, 2014 Before: Sidney R. Thomas, Raymond C. Fisher, and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon 2 GIBBS V. LEGRAND SUMMARY* Habeas Corpus The panel reversed the district court’s order dismissing a habeas corpus petition as untimely, and remanded for consideration of the petition on the merits.

The panel held that the petitioner’s attorney’s misconduct was an extraordinary circumstance which directly caused the petitioner not to learn that the time for him to file his federal habeas petition had begun until the time was over – where counsel did not inform the petitioner that state post- conviction proceedings had ended, even though counsel had pledged to do so, even though the petitioner wrote to his counsel repeatedly for updates, and even though the time in which to file a federal habeas petition was swiftly winding down. The panel also held that the petitioner exercised reasonable diligence in pursuit of his post-conviction rights both before and after learning of the Nevada Supreme Court’s denial of the appeal of his state post-conviction petition.


Megan C. Hoffman (argued), Debra A. Bookout, and Ryan Norwood, Assistant Federal Public Defenders, Las Vegas, Nevada, for Petitioner-Appellant.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

GIBBS V. LEGRAND 3 Victor-Hugo Schulze, II (argued), Senior Deputy Attorney General, Las Vegas, Nevada, for Respondents-Appellees.


BERZON, Circuit Judge:

This case arises from a prisoner’s vigorous pursuit of post-conviction review in the face of egregious misconduct from his court-appointed lawyers. We focus here on one serious episode of attorney misconduct: The failure, despite prisoner-petitioner George Gibbs’s repeated inquiries, to inform Gibbs that the Nevada Supreme Court denied the appeal of his state post-conviction petition. By the time Gibbs learned the fate of his appeal, he had already missed the one-year deadline for filing a federal habeas corpus petition.

We hold that the attorney’s conduct amounted to client abandonment, and that the district court erred by not recognizing that such abandonment can, in certain circumstances, constitute an extraordinary circumstance warranting equitable tolling of the federal filing deadline.

Accordingly, we reverse the district court’s dismissal of Gibbs’s petition and remand for consideration of the petition on the merits.

–  –  –

Gibbs was convicted by a Nevada jury for crimes ranging from manufacture of a controlled substance to possession of child pornography and received a life sentence with the possibility of parole. The Nevada Supreme Court affirmed 4 GIBBS V. LEGRAND his conviction on June 3, 2003. Two instances of attorney misconduct, not directly relevant here, prevented Gibbs from properly filing his state petition for post-conviction relief (“PCR petition”) until 2007.1 That petition was rejected on the merits, and Gibbs appealed to the Nevada Supreme Court.

Dayvid Figler was appointed to represent Gibbs on the PCR appeal.

Relations between Gibbs and Figler quickly soured. In November and December of 2008, Gibbs sent a series of letters to Figler noting his frustration with Figler’s failure to communicate with him. Figler did not respond to Gibbs’s letters, and Gibbs lodged a complaint against Figler with the Nevada State Bar. The State Bar forwarded the complaint to Figler’s law firm, Bunin & Bunin, prompting Figler to reach out to Gibbs. Gibbs, in turn, alerted the State Bar that Figler was now “on board.” The Bar dismissed the complaint, informing Gibbs that the “matter has been resolved.” Figler filed Gibbs’s state PCR appeal with the Nevada Supreme Court on August 12, 2009. On May 25, 2010, he wrote to Gibbs on the letterhead of a new firm, Bailus, Cook & Kelesis, promising to forward him “any receipt of notice from [the] Supreme Court” (emphasis in original) and 1 First, Gibbs’s attorney on direct appeal refused to hand over Gibbs’s files. Then, new counsel agreed to file Gibbs’s PCR petition but never did so. Gibbs was not aware that PCR counsel did not file the promised petition until the state court ruled that any further petitions were barred as untimely because the first PCR petition was never filed. Gibbs appealed the state court’s untimeliness ruling pro se, arguing that his attorney’s misconduct constituted good cause to overcome the state procedural bar.

The Nevada Supreme Court agreed and, in November 2006, vacated the state court’s judgment and remanded for consideration of Gibbs’s petition on the merits.

GIBBS V. LEGRAND 5 inviting him to “send written correspondence to the above address if you have any questions or concerns.” The letter also stated, erroneously, that “the time for you to file postconviction relief has not yet started”; in fact, Gibbs was in the midst of pursuing post-conviction relief.

In June 2010, the Nevada Supreme Court affirmed the denial of Gibbs’s PCR petition. Despite his pledge to do so, Figler did not forward Gibbs the notice from the Nevada Supreme Court that the petition had been denied. In both June and October of 2010, unaware that the Nevada Supreme Court had issued its decision, Gibbs wrote to Figler expressing his renewed frustration with the attorney’s lack of communication and offering suggestions about how to present his case to the Nevada Supreme Court. “I have not heard from you in over 8 months,” Gibbs complained. “I never got a response from you, asking you to add the Melendez case to my opening brief. It was a big concern to me that you look it over and respond to your thoughts of all my effort.” Figler did not reply.

On December 3, Gibbs wrote to the Nevada Supreme Court requesting the docket sheet and explaining, “I can not find my attorney of record.” On December 11, he wrote to the Nevada State Bar in search of Figler’s address, phone number and bar number.2 Two days later, on December 13, he wrote a third letter to Figler, with suggestions for possible oral argument. The next day, December 14, Gibbs received the docket sheet from the court and discovered that his appeal had been rejected six months earlier.

2 The current record does not indicate whether or when the State Bar provided Gibbs Figler’s address, nor whether the December 13 letter was correctly addressed.

6 GIBBS V. LEGRAND Gibbs promptly took pen to paper to express his “amazement” at Figler’s unethical conduct. “I have done everything in my power to locate you to no avail. The concern [be]came very serious so I wrote the Supreme Court for a Docket Sheet.” He asked, “what do I do now[?]” and requested that Figler address his concerns “with simple communication.” Figler did not respond. On December 20, Gibbs wrote to the Supreme Court again, requesting copies of its order affirming the denial of his petition and the remittitur.

Finally, on February 7, 2011, Gibbs wrote to Figler terminating him as counsel and requesting that he return Gibbs’s documents within five days.3 “By failing to inform me you have put me in a terrible position,” Gibbs wrote.

“[U]nskilled in law” and with “little access to a full law library service,” he explained that he now faced the “daunting task” of preparing his own federal habeas petition. Three weeks later, on February 28, Gibbs’s sister acquired a “banker’s box” of files from Figler. Gibbs mailed his federal habeas petition on May 3, 2011, approximately sixty-five days after his sister procured his files from Figler.

The Warden moved to dismiss, arguing that Gibbs’s petition was untimely. Gibbs countered that his attorney’s misconduct entitled him to equitable tolling such that the petition was timely. The district court granted the motion to dismiss, ruling that equitable tolling was not merited because 3 The record does not indicate how Gibbs discovered that Figler had again switched law firms — he was now, apparently, at J.S.L. Law Firm.

Presumably by this point, the State Bar had provided the address in response to Gibbs’s request. In any case, the record suggests that Figler’s change of firms, without notice to Gibbs, made it particularly difficult for Gibbs to contact him.

GIBBS V. LEGRAND 7 Gibbs had “not demonstrated that his counsel was...

incompetent,” but only that “he had trouble communicating with the attorney and that he was not timely informed that his appeal had been decided.” After the district court issued a certificate of appealability on the equitable tolling question, Gibbs brought this appeal.


We review de novo the dismissal of a federal habeas petition as untimely. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). “If the facts underlying a claim for equitable tolling are undisputed, the question of whether the statute of limitations should be equitably tolled is also reviewed de novo. Otherwise, findings of fact made by the district court are to be reviewed for clear error.” Id. (citation omitted) (citing Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999)).

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a state prisoner ordinarily has one year from the date his state conviction becomes final to file a habeas corpus petition in federal court. 28 U.S.C.

§ 2244(d)(1)(A). By statute, the limitations period is tolled while a properly filed state post-conviction petition is pending. Id. § 2244(d)(2).

Excluding the statutorily tolled period when Gibbs’s postconviction petition was before the Nevada courts, both parties, and the district court, agree that Gibbs accrued 257 untolled days before the Nevada Supreme Court denied his PCR appeal. Absent equitable tolling, then, Gibbs had 108 days to file his federal habeas petition, with the limitations period expiring October 22, 2010. Gibbs did not file his federal petition until May 3, 2011, 193 days late.

8 GIBBS V. LEGRAND AEDPA’s one-year statute of limitations is subject to equitable tolling. Holland v. Florida, 560 U.S. 631, 649 (2010). A litigant seeking equitable tolling bears the burden of establishing two elements: (1) “‘that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented timely filing.” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

For Gibbs’s petition to be timely, he has to establish equitable tolling through at least January 15, 2011.4 In considering whether he had done so, we address the two Holland requirements for equitable tolling in reverse order, as the facts of this case lend themselves better to that treatment.

A. Extraordinary Circumstances

Courts take a flexible, fact-specific approach to equitable tolling. “[S]pecific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case.” Id. at 650; see also Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc).

Consistent with the flexible approach, attorney conduct compromising the filing of a timely federal habeas petition 4 At oral argument, the Warden objected for the first time to the district court’s finding that statutory tolling ceased when the Nevada Supreme Court’s remittitur issued on July 6, 2010, claiming instead that it ceased when the decision was reached, on June 9, 2010. If equitable tolling is warranted, it is warranted for the time period when, due to Figler’s abandonment, Gibbs was unaware that the Nevada Supreme Court had reached its decision. Thus, whether statutory tolling ended on June 9 or July 6 is irrelevant to our disposition of this appeal; either date would be within the equitable tolling period if one is warranted.

GIBBS V. LEGRAND 9 can constitute the requisite “extraordinary circumstance” in some circumstances but not others. Holland held that “garden variety claim[s] of excusable neglect” — such as “simple miscalculation” of time limits — do not constitute an extraordinary circumstance. 560 U.S. at 651–52 (internal quotation marks omitted). But attorney misconduct can be so egregious as to create an “extraordinary circumstance,” justifying equitable tolling. Id. at 652. In a concurring opinion, Justice Alito explained his understanding of the logic behind this framework, reasoning that, “the principal rationale for disallowing equitable tolling based on ordinary attorney miscalculation is that the error of an attorney is constructively attributable to the client and thus is not a circumstance beyond the litigant’s control.” Id. at 657 (Alito, J., concurring).

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