George Gibbs v. Robert Legrand
2014 U.S. App. LEXIS 17941
| 9th Cir. | 2014Background
- Gibbs, a Nevada prisoner serving life, pursued state post-conviction relief (PCR); counsel Dayvid Figler was appointed for the Nevada Supreme Court PCR appeal.
- Figler repeatedly failed to communicate with Gibbs, promised to forward any Supreme Court notices, but did not inform Gibbs that the Nevada Supreme Court denied his PCR appeal in June 2010.
- Gibbs only discovered the denial via the court docket on December 14, 2010; he terminated Figler in February 2011 after continued noncommunication and had his sister retrieve files on February 28, 2011.
- Excluding statutory tolling, Gibbs had 108 days remaining under AEDPA after the Nevada proceedings; his federal habeas petition was mailed May 3, 2011 (193 days late absent tolling).
- District court dismissed Gibbs’s petition as untimely, finding Figler’s conduct did not amount to incompetence warranting equitable tolling; Gibbs appealed.
- The Ninth Circuit held Figler’s conduct constituted client abandonment, that extraordinary circumstances justified equitable tolling through at least January 15, 2011, and reversed and remanded for merits consideration.
Issues
| Issue | Gibbs' Argument | Warden's Argument | Held |
|---|---|---|---|
| Whether attorney misconduct can be an "extraordinary circumstance" warranting equitable tolling of AEDPA limitations | Figler’s prolonged noncommunication and failure to notify Gibbs of the state-court denial amounted to abandonment that prevented timely filing | Figler’s failures were at most garden-variety negligence/communication problems not meeting Holland standard | Attorney abandonment can be an extraordinary circumstance; Figler’s conduct amounted to abandonment and satisfied the extraordinary-circumstance prong |
| Whether Gibbs acted with reasonable diligence in pursuing his federal habeas rights | Gibbs continuously attempted to contact counsel, the State Bar, and the Nevada Supreme Court, terminated counsel when nonresponsive, and filed pro se promptly after obtaining files | Gibbs could have contacted the court earlier, prepared a petition while represented, and acted faster after learning of denial | Gibbs acted with reasonable diligence before and after the abandonment; diligence prong satisfied |
| Whether Figler’s abandonment caused Gibbs to miss AEDPA deadline (causation/impossibility) | Lack of notice and lack of access to files made timely filing effectively impossible despite technical possibilities | Gibbs could have checked court status or prepared petition earlier and thus causation broken | Causation established: Figler’s abandonment and withholding of files prevented timely filing; equitable tolling is warranted through at least Jan 15, 2011 |
| Appropriate remedy for untimely dismissal | Equitable tolling should render the petition timely and permit merits review | Dismissal appropriate absent tolling | Reversed district court’s dismissal; remanded for merits consistent with opinion |
Key Cases Cited
- Holland v. Florida, 560 U.S. 631 (2010) (equitable tolling requires diligence and extraordinary circumstance; attorney misconduct can qualify)
- Maples v. Thomas, 565 U.S. 266 (2012) (attorney abandonment severs agency relationship and can relieve client from counsel’s errors)
- Pace v. DiGuglielmo, 544 U.S. 408 (2005) (factors for equitable tolling and interplay with statutory tolling)
- Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003) (standard of review and equitable tolling precedents)
- Doe v. Busby, 661 F.3d 1001 (9th Cir. 2011) (attorney promise and failure to file can support equitable tolling where petitioner reasonably relied)
- Ramirez v. Yates, 571 F.3d 993 (9th Cir. 2009) (lack of knowledge of final state resolution can justify tolling if petitioner acted diligently)
- Sossa v. Diaz, 729 F.3d 1225 (9th Cir. 2013) (impossibility standard for equitable tolling causation)
- Socop-Gonzalez v. INS, 272 F.3d 1176 (9th Cir. 2001) ("stop-clock" rule: tolling stops the limitations clock until the impediment is removed)
- Espinoza-Matthews v. California, 432 F.3d 1021 (9th Cir. 2005) (lack of access to legal file may constitute extraordinary circumstance justifying tolling)