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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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Maples v. Thomas clarified Holland’s distinction between “garden variety” attorney negligence and egregious attorney misconduct, drawing on Justice Alito’s Holland concurrence and casting the distinction in terms of agency principles.5 132 S. Ct. 912, 923–24 (2012). Maples explained that while agency law binds clients, including federal habeas petitioners, to their attorneys’ negligence, “a client cannot be charged with the acts or omissions of an attorney who has abandoned him.” Id. at 924. An attorney’s failure to communicate about 5 Maples involved cause for procedural default rather than entitlement to equitable tolling, but the Supreme Court saw “no reason” why the distinction between attorney negligence and attorney abandonment should not hold in both contexts. 132 S. Ct. at 924 n.7. Because we hold that Figler’s conduct amounted to abandonment of his client under the standard announced in Maples, we do not have occasion to consider whether attorney misconduct which stops short of effective abandonment could, in appropriate instances, constitute an extraordinary circumstance supporting equitable tolling.

10 GIBBS V. LEGRAND a key development in his client’s case can, therefore, amount to attorney abandonment and thereby constitute an extraordinary circumstance. Maples, 132 S. Ct. at 923–24;

see also Towery v. Ryan, 673 F.3d 933, 942–43 (9th Cir.

2012).

1.

So, contrary to the district court’s analysis of the circumstances here, it was absolutely critical that Gibbs “had trouble communicating with [his] attorney” and “was not timely informed that his appeal had been decided”: If Gibbs’s attorney effectively abandoned him, Gibbs cannot be charged with the knowledge that the Nevada Supreme Court had denied his appeal.

Failure to inform a client that his case has been decided, particularly where that decision implicates the client’s ability to bring further proceedings and the attorney has committed himself to informing his client of such a development, constitutes attorney abandonment. See Mackey v. Hoffman, 682 F.3d 1247, 1253 (9th Cir. 2012). Attorneys are generally required to “perform reasonably competent legal work, to communicate with their clients, to implement clients’ reasonable requests, [and] to keep their clients informed of key developments in their cases.” Holland, 560 U.S. at 652–53. Gibbs’s attorney failed on all but the first count.6 6 After reciting these general standards, Holland remanded as to whether there were extraordinary circumstances, because the district court had not reached the issue. But Holland identified as “serious instances of attorney misconduct” possibly constituting extraordinary circumstances, several factors: that Holland’s attorney “failed to file Holland’s federal petition on time”; did not “do the research necessary to find out the proper filing date”; “failed to inform Holland in a timely manner about the crucial fact GIBBS V. LEGRAND 11 Our case law confirms that Figler’s behavior in failing to notify Gibbs of the Nevada Supreme Court’s decision constituted abandonment, and thereby created extraordinary circumstances sufficient to justify equitable tolling. Busby, for example, held that extraordinary circumstances existed where counsel failed to timely file his client’s habeas petition despite having promised to do so, even though the petitioner hired him over a year before the AEDPA deadline, paid him $20,000, gave him his files and repeatedly inquired about his case. 661 F.3d at 1012. Likewise, Spitsyn held that an attorney’s failure to file a habeas petition at all, despite being hired almost a year before the AEDPA deadline, was sufficiently egregious to constitute extraordinary circumstances, where Spitsyn contacted him three times and filed two complaints with the state bar. 345 F.3d at 798, 801.

Relatedly, we recognized in Ramirez v. Yates that, “‘a prisoner’s lack of knowledge that the state courts have reached a final resolution of his case can provide grounds for equitable tolling if the prisoner has acted diligently in the matter.’” 571 F.3d 993, 997 (9th Cir. 2009) (quoting Woodward v. Williams, 263 F.3d 1135, 1143 (10th Cir.

2001)). Although that case dealt with a pro se petitioner who should have received notification directly from the court, it is instructive here. If Gibbs had been proceeding pro se, he would have been entitled to notification from the court, and the court’s failure to mail him notice of its denial of his PCR petition would have been an extraordinary circumstance justifying equitable relief. “Because [Figler] failed to notify that the Florida Supreme Court had decided his case”; and “failed to communicate with his client over a period of years,” despite Holland’s repeated communications and requests that his lawyer do all of these things. 560 U.S. at 652.

12 GIBBS V. LEGRAND the court of his intention to withdraw, [Gibbs] was deprived of the opportunity to proceed pro se and to personally receive docket notifications from the court.” Mackey, 682 F.3d at

1253. Here, Gibbs’s lack of actual notice was occasioned by the breach and abandonment of his attorney, but the result was the same: Gibbs did not know that the federal limitations clock had started ticking. Furthermore, as counsel had expressly promised Gibbs that he would forward him the court’s notice of decision, it is as true here as it was in Ramirez that the petitioner’s “ignorance of the limitations period was caused by circumstances beyond the party’s control.” Socop-Gonzalez v. INS, 272 F.3d 1176, 1193 (9th Cir. 2001) (en banc).





These cases stand in stark contrast to Towery, where the attorney’s alleged negligence did not rise to the level of abandonment or egregious misconduct because he actually represented his client and filed a habeas petition, albeit an imperfect one. See 673 F.3d at 936. We reasoned that Towery’s attorney “diligently pursued habeas relief on Towery’s behalf, although omitting a colorable constitutional claim from Towery’s amended petition.” Id. at 942. As the attorney continued as Towery’s legal representative, even if his performance was inadequate, his conduct did not constitute abandonment of his client and did not justify the conclusion that extraordinary circumstances existed. Id.

In contrast, here, Figler failed to communicate with Gibbs “over a period of years,” despite repeated efforts by Gibbs to engage him. Holland, 560 U.S. at 652. That Figler briefly reappeared after the Nevada State Bar forwarded him Gibbs’s formal complaint and did bring Gibbs’s PCR appeal does not excuse his prolonged absence and, most critically, his failure to inform Gibbs when the state PCR proceedings concluded.

GIBBS V. LEGRAND 13 Moreover, Figler went out of his way to guarantee Gibbs that he would update him about the case: “Upon any receipt of notice from Supreme Court on your case we will forward it to you by mail. Please send written correspondence to the above address if you have any questions or concerns.” (Emphasis in original). Gibbs had questions and concerns and wrote to Figler several times at the address provided. But Figler did not respond, nor did he alert Gibbs that the Nevada Supreme Court had denied his appeal. In fact, Figler had moved to a new firm; his failure to provide Gibbs with an updated address hampered Gibbs’s ability to communicate with him. Such egregious conduct is not analogous, as the Warden would have it, to the conduct in Towery, and is amenable to only one conclusion: Figler was not serving as Gibbs’s agent “in any meaningful sense of that word.” Maples, 132 S. Ct. at 923 (quoting Holland, 560 U.S. at 659 (Alito, J., concurring)) (internal quotation marks omitted).

The Warden contends that Gibbs “attempts... to lower the governing standard” because, overall, Gibbs’s attorney was less negligent than Holland’s. This argument misconstrues Holland. Nothing in that case suggests that the Court intended Holland’s attorney’s performance to serve as a floor for the extraordinary circumstances prong of equitable tolling. The only guidance the Court gave as to what would not satisfy that prong was that courts should exclude “garden variety claim[s] of excusable neglect” such as a “simple miscalculation.” Holland, 560 U.S. at 651 (internal quotation marks omitted). That Figler may have acted less egregiously than Holland’s counsel does not compel the conclusion that Figler’s behavior was not egregious, or that his negligence was “garden variety.” 14 GIBBS V. LEGRAND We therefore conclude that Figler’s egregious conduct amounted to client abandonment, such that Gibbs is not responsible for the fact that he did not learn of the Nevada Supreme Court’s decision until December 14, 2010. See Rudin v. Myles, No. 12-15362, slip op. at 25 (9th Cir. Sept.

10, 2014).7 We next consider whether Figler’s effective abandonment and Gibbs’s resulting lack of notice of the Nevada Supreme Court’s decision caused Gibbs to miss the federal filing deadline. See Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013).

2.

By the time Gibbs learned that his state post-conviction proceeding was complete, the federal deadline had passed.

Although it was technically possible for Gibbs to write to the Nevada Supreme Court daily to ask about the status of his state PCR petition, he had no obligation or reason to do so, given that he was represented and had, moreover, been specifically promised by his lawyer prompt notice of any decision. “[This court has] granted equitable tolling in circumstances where it would have technically been possible for a prisoner to file a petition, but a prisoner would have 7 We note a striking feature of Rudin: the very same attorney who abandoned Gibbs, Dayvid Figler, also abandoned Rudin. See Rudin, No.

12-15362, slip op. at 10, 24. The court in Rudin found equitable tolling warranted on that basis, just as we do. Id. at 25. Rudin’s ultimate holding, that even tolling the entire period of Figler’s involvement was not sufficient to render the federal habeas petition timely in that case, relied on its conclusion that Rudin was not diligent in pursuing her rights once counsel had been appointed to replace Figler. See id. at 27-28. Because Gibbs was diligent during and after Figler’s involvement in this case, our analysis is entirely consistent with Rudin. Figler’s abandonment of both Gibbs and Rudin is deeply troubling, to say the least.

GIBBS V. LEGRAND 15 likely been unable to do so.” Harris v. Carter, 515 F.3d 1051, 1054 n.5 (9th Cir. 2008).8 By failing to notify Gibbs of the Nevada Supreme Court’s decision, Figler created a situation in which Gibbs, despite his diligence in tracking down Figler, was extremely unlikely, acting perfectly reasonably, to meet the AEDPA deadline. Our case law requires nothing more to establish that the extraordinary circumstance caused the failure to meet the federal deadline.

See Sossa, 729 F.3d at 1236; Harris, 515 F.3d at 1054 n.5.

Thus, as a direct result of Figler’s abandonment, Gibbs did not learn that the state PCR process was over until after the federal statute of limitations expired. This effective abandonment, resulting in lack of actual notice, satisfies the “extraordinary circumstances” prong of equitable tolling at least through December 14, 2010, when Gibbs learned of the Nevada Supreme Court’s decision.

To establish that his petition was filed timely, Gibbs must demonstrate that Figler’s conduct continued to stand in his way and prevent timely filing for at least an additional month, through January 15, 2011. We conclude that he has done so.

8 “After Holland, we have continued to rely on our previous equitable tolling cases in which we held that equitable tolling is available only when extraordinary circumstances beyond a prisoner’s control make it impossible to file a petition on time and the extraordinary circumstances were the cause of the prisoner’s untimeliness.” Sossa, 729 F.3d at 1229 (alterations, emphasis and internal quotation marks omitted). Consistent with Holland, our cases have applied this ‘impossibility’ standard leniently, rejecting a literal interpretation. See id. at 1236; Harris, 515 F.3d at 1054 n.5; Lott v. Mueller, 304 F.3d 918, 924–25 (9th Cir. 2002);

see also Rudin, No. 12-15362, slip op. at 23 (applying impossibility standard to a circumstance in which timely filing was not literally impossible).

16 GIBBS V. LEGRAND First, until Gibbs definitively terminated the attorneyclient relationship in February 2011, Gibbs may reasonably have believed that Figler was going to assist him in federal court. Gibbs intended to file a federal habeas petition and relied on Figler for advice as to how to do so despite the timeliness bar he now faced, indicating that Figler may have given Gibbs reason to believe that Figler would represent him in federal proceedings. The same day Gibbs learned of the Nevada Supreme Court’s decision, he wrote to Figler, asking “what do I do now[?]” and requesting that Figler “please address [his] concerns with simple communication.” It was not until Figler again failed to respond that Gibbs sent Figler correspondence officially terminating Figler as his representative and demanding return of his legal files.

Second, even if Gibbs did not reasonably believe that Figler’s representation would continue, an attorney who ceases to represent a client has certain continuing obligations to his client, including taking “steps to the extent reasonably practicable to protect a client’s interests.” Nev. R. Prof.

Conduct 1.16(d).



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