Benito Luna v. Scott Kernan
2015 U.S. App. LEXIS 6979
| 9th Cir. | 2015Background
- Luna, a California prisoner convicted of first-degree murder, filed a timely pro se federal habeas petition in March 2004; some claims were unexhausted.
- A magistrate judge appointed counsel (Joseph Wiseman) in June 2004 and agreed to stay the federal petition to allow exhaustion in state court.
- Wiseman moved to voluntarily dismiss the timely pro se petition in August 2004 (erroneously asserting all claims were unexhausted); the petition was dismissed and the case closed.
- Wiseman delayed state filings (Court of Appeal petition filed Sept. 2004; California Supreme Court petition not filed until Feb. 2007 and denied as untimely), and repeatedly assured Luna that a fully exhausted federal petition would be filed soon.
- AEDPA’s one-year limitations period expired in Feb. 2005; Wiseman did not file the federal petition until June 3, 2011. Luna sought equitable tolling based on Wiseman’s professional misconduct; the district court denied relief and dismissed the petition as time-barred.
- The Ninth Circuit vacated and remanded, holding Wiseman’s conduct could constitute an extraordinary circumstance but remanding for a factbound diligence inquiry (including an evidentiary hearing if necessary).
Issues
| Issue | Plaintiff's Argument (Luna) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether attorney misconduct can constitute "extraordinary circumstances" for equitable tolling of AEDPA | Wiseman’s dismissal of the timely petition, delay in filing, and repeated misleading assurances were egregious professional misconduct that prevented timely filing | Luna is bound by his attorney’s actions under agency principles; equitable tolling should require attorney abandonment to sever agency | Court: Attorney misconduct beyond garden-variety negligence can be an extraordinary circumstance; Wiseman’s conduct met that threshold |
| Whether Wiseman’s misconduct caused Luna’s late filing (causation) | But for Wiseman’s dismissal and misleading assurances, Luna would have filed timely (he had previously filed timely pro se) | State argued agency principles and that conduct doesn’t excuse timeliness absent abandonment | Held: Causation satisfied — Wiseman’s conduct prevented timely filing |
| Whether Luna exercised reasonable diligence such that equitable tolling applies | Luna maintained regular contact and relied on Wiseman’s assurances; this can show diligence | State argued the six-year delay is so long that Luna should have been alerted and acted | Held: Remanded — diligence is fact-intensive; record insufficient; district court must determine diligence through filing (June 3, 2011) after evidentiary development |
| Proper temporal scope of diligence under circuit precedent (stop-clock vs diligence-through-filing) | Luna argued tolling should cover period while extraordinary circumstances existed | State urged stricter limitations based on some precedents | Held: Circuit applies both Gibbs stop-clock and Spitsyn diligence-through-filing rules; Luna must show diligence through date of filing to prevail |
Key Cases Cited
- Lawrence v. Florida, 549 U.S. 327 (2007) (no constitutional right to appointed counsel in post-conviction proceedings)
- Holland v. Florida, 560 U.S. 631 (2010) (equitable tolling requires extraordinary circumstances and diligence; professional misconduct can qualify if egregious)
- Rhines v. Weber, 544 U.S. 269 (2005) (stay-and-abeyance to allow exhaustion of mixed habeas claims)
- Rasberry v. Garcia, 448 F.3d 1150 (9th Cir. 2006) (stay/abeyance principles in habeas practice)
- Henry v. Lungren, 164 F.3d 1240 (9th Cir. 1999) (relation-back limits for amended habeas petitions)
- Doe v. Busby, 661 F.3d 1001 (9th Cir. 2011) (continuing reliance on attorney assurances can satisfy diligence)
- Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003) (extraordinary circumstances and requirement to show diligence; diligence-through-filing inquiry)
- Maples v. Thomas, 565 U.S. 266 (2012) (agency principles and distinction between negligence and abandonment in procedural-default context)
- Gibbs v. LeGrand, 767 F.3d 879 (9th Cir. 2014) (adopting stop-clock approach to equitable tolling)