«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 ...»
After he learned of the state court decision, Gibbs immediately wrote to Figler. He promptly asked the Nevada Supreme Court for a copy of the order denying his PCR appeal. After he did not hear back from Figler, he fired him and demanded return of his files. And even without knowing GIBBS V. LEGRAND 25 anything about what went on during the three weeks it took Gibbs’s sister to retrieve the files from Figler, three weeks is a reasonable time in which to have contacted Figler, ascertained his availability, and arranged to pick up the files.
After terminating Figler and receiving his files, Gibbs filed a pro se habeas petition in sixty-five days’ time. In Espinoza-Matthews, we granted equitable tolling because the petitioner “had only slightly over a month with his legal file to try to prepare a proper petition.” 432 F.3d at 1028. That Gibbs took slightly more than two months to prepare his federal habeas petition — his “single opportunity for federal habeas review of the lawfulness of his imprisonment” — after diligently pursuing his rights for ten years, does not undercut his overall record of diligence. Holland, 560 U.S. at 653.
Taken as a whole, the record provides ample evidence of Gibbs’s persistent diligence over a period of ten years, often in the face of utter disregard by those charged with representing him. We therefore conclude that Gibbs acted with reasonable diligence both before and after learning of the Nevada Supreme Court’s decision, thereby satisfying the first prong of the Holland equitable tolling inquiry.
Gibbs’s counsel did not inform him that state postconviction proceedings had ended, even though counsel had pledged to do so, even though Gibbs wrote to his counsel repeatedly for updates, and even though time in which to file a federal habeas petition was swiftly winding down. As a direct result, Gibbs did not learn that the time for him to file his federal petition had begun until the time was over. We conclude that his attorney’s misconduct was an extraordinary 26 GIBBS V. LEGRAND circumstance which caused Gibbs’s inability to timely file his federal petition. We are also satisfied that Gibbs exercised reasonable diligence in pursuit of his post-conviction rights.
For these reasons, the judgment of the district court is REVERSED and the matter REMANDED for proceedings not inconsistent with this opinion.