953 F.3d 1128
9th Cir.2020Background:
- Milam’s convictions became final July 29, 2008; state habeas counsel filed three petitions with long gaps between filings, leaving gaps in statutory tolling.
- First state petition filed Oct. 15, 2008 and denied Dec. 22, 2008; second filed Aug. 11, 2009 and denied Sept. 9, 2009; third filed Dec. 14, 2009 and denied June 23, 2010.
- Milam’s federal § 2254 petition was filed June 3, 2011 (1039 days after finality); district court dismissed it as time-barred.
- Milam sought equitable tolling based on severe mental impairment and alleged state habeas counsel misconduct; district court held mental impairment irrelevant because he had counsel and required counsel ‘‘abandonment’’ to toll for attorney misconduct.
- Ninth Circuit held the district court erred: representation by counsel does not categorically bar a mental-impairment tolling claim and attorney misconduct is not limited to ‘‘abandonment’’; vacated and remanded for factual application of proper legal standards.
- The court noted that if Milam obtained the tolling he seeks (statutory plus equitable), his petition would be timely, but it made no finding on entitlement.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether severe mental impairment while represented by counsel can justify equitable tolling | Milam: impairment prevented him from understanding, monitoring, or cooperating with counsel, and was a but‑for cause of delay | State: retention of counsel during period makes mental impairment irrelevant to tolling | Court: Representation does not categorically bar tolling; district must determine whether impairment was a but‑for cause of the untimely filing (remand) |
| Whether state habeas counsel’s misconduct can support equitable tolling or requires ‘‘abandonment’’ | Milam: counsel’s long delays and failures were extraordinary and prevented timely federal filing | District/State: only true attorney abandonment supports tolling; garden‑variety negligence does not | Court: Equitable tolling can rest on a range of attorney misconduct beyond abandonment; district misapplied the legal standard (remand) |
| Whether, if equitable tolling awarded, Milam’s petition would be timely | Milam: seeks at least 674 days of tolling (and in fact ~840 days if successful) to render petition timely | State: argues petition would remain untimely even with claimed tolling | Court: If Milam obtains the tolling he seeks, his petition would be timely; Court does not decide entitlement |
| Legal standard and review for equitable tolling claims (mental impairment and attorney misconduct) | Milam: courts should apply Bills/Holland standards and assess causation and diligence under the totality of circumstances | District: applied categorical rules (mental impairment irrelevant with counsel; abandonment required) | Court: Clarified governing standards (Bills, Holland); review de novo for legal questions and remand for factual application |
Key Cases Cited
- Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010) (test for equitable tolling based on mental impairment and role of assistance)
- Forbess v. Franke, 749 F.3d 837 (9th Cir. 2014) (mental impairment must be but‑for cause of delay)
- Holland v. Florida, 560 U.S. 631 (2010) (equitable tolling applies for extraordinary attorney misconduct; garden‑variety neglect insufficient)
- Miranda v. Castro, 292 F.3d 1063 (9th Cir. 2002) (ineffective assistance of state post‑conviction counsel does not automatically warrant tolling)
- Luna v. Kernan, 784 F.3d 640 (9th Cir. 2015) (equitable tolling can be based on a range of attorney misconduct)
- Riva v. Ficco, 615 F.3d 35 (1st Cir. 2010) (counseled filings require inquiry into petitioner’s effective participation when mental illness alleged)
- Stoll v. Runyon, 165 F.3d 1238 (9th Cir. 1999) (mental illness may preclude agency relationship with attorney and justify tolling)
- Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003) (standard of review for dismissal as time‑barred)