Argued and Submitted, San Francisco, California
February 11, 2014
Appeal from the United States District Court for the District of Nevada. D.C. No. 2:11-cv-00643-RLH-GWF. Roger L. Hunt, Senior District Judge, Presiding.
The panel affirmed the district court's order dismissing as untimely Nevada state prisoner Margaret Rudin's 28 U.S.C. § 2254 habeas corpus petition challenging her conviction of murder with the deadly use of a weapon and unauthorized surreptitious intrusion of privacy by listening device.
The panel held that because the Nevada State Supreme Court concluded that Rudin's state post-conviction petition was untimely under state law, Rudin is not entitled to statutory tolling under 28 U.S.C. § 2244(d)(2) for the duration of her state post-conviction proceedings.
The panel held that extraordinary circumstances prevented Rudin from filing her application for federal habeas relief, and that she is therefore entitled to equitable tolling of the AEDPA statute of limitations, between November 10, 2004, and August 22, 2007--during which period the first attorney appointed to represent Rudin in collateral review proceedings abandoned her, and during which period she was diligent in pursuing her rights.
The panel held that Rudin is not entitled to equitable tolling after the point, August 22, 2007, at which the parties and her subsequent appointed counsel first became aware that prior counsel had never filed a post-conviction petition in state court, through April 25, 2011, when counsel applied for habeas relief in federal court, during which period Rudin failed to act diligently to protect her rights.
Dissenting, District Judge Adelman concluded that, on the egregious facts of this case, the doctrine of equitable tolling is sufficiently expansive to provide Rudin with access to the federal courts.
Christopher Oram, Las Vegas, Nevada, for Petitioner-Appellant.
Jamie J. Resch (argued), Senior Deputy Attorney General, and Catherine Cortez Masto, Attorney General, Office of the Attorney General, Las Vegas, Nevada, for Respondents-Appellees.
Before: Diarmuid F. O'Scannlain and Mary H. Murguia, Circuit Judges, and Lynn S. Adelman, District Judge.[*] Opinion by Judge Murguia; Dissent by Judge Adelman.
MURGUIA, Circuit Judge
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year period of limitation within which an individual seeking relief must file an application for a writ of habeas corpus. See 28 U.S.C. § 2244(d)(1). Once that one-year period begins to run, it may be tolled only in certain circumstances. See id. § 2244(d)(2) (providing for statutory tolling); Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 2554, 177 L.Ed.2d 130 (2010) (providing for equitable tolling). The question this case presents is whether Petitioner Margaret Rudin is entitled to statutory or equitable tolling of the AEDPA limitations period, excusing her six-year delay in filing her application. We conclude, albeit not without pause, that she is not entitled to statutory or equitable tolling sufficient to excuse her delay. We therefore affirm the district court's order dismissing Rudin's application as untimely.
The facts giving rise to this appeal are essential to our tolling analysis. We therefore describe those facts in more detail than we otherwise might.
A. Rudin's Criminal Trial and Direct Appeal Proceedings
In April 1997, Petitioner Margaret Rudin was charged with murder with the use of a deadly weapon and unauthorized surreptitious intrusion of privacy by listening device, both in violation of Nevada state law. See Nev. Rev. Stat. § § 200.010; 193.165; 200.650. Those charges arose out of the death of Rudin's husband Ron, whose charred remains had been discovered in Lake Mojave a few years earlier. See Rudin v. State, 120 Nev. 121, 86 P.3d 572, 577 (Nev. 2004). After pleading not guilty to both charges, Rudin retained the services of a private attorney, Michael Amador, to represent her at trial. Her trial began in the Eighth Judicial District Court of the State of Nevada (the " trial court" or the " court" ) on March 2, 2001.
Two-and-a-half weeks before trial commenced, it became clear to the court that Amador alone could not adequately defend Rudin. After a series of pretrial delays, the court appointed attorney Thomas Pitaro to assist Amador with Rudin's defense. Pitaro quickly realized that Amador had not yet reviewed " thousands of pages of discovery," and Pitaro soon became " concerned about the preparation that had been done for the trial." Amador had not, for example, interviewed critical witnesses. As a result, the defense team would learn, for the first time at trial, the content of various witnesses' testimony. In at least one instance, when a witness was called to the stand, Pitaro " went to get from Mr.
Amador the [witness's] file and found nothing inside." As Pitaro would later describe, " the preparation that [one] would hope normally would be done before trial starts was being done during the trial."
But even with Pitaro's help, Rudin's trial was replete with alleged errors and professional misconduct on the part of the defense team. Amador, for example, began with an opening statement that had " no cohesive theme." Over the course of trial, Amador was accused of creating a prejudicial conflict of interest by allegedly negotiating agreements for the literary and media rights to his representation. Rudin, 86 P.3d at 587-88. His general lack of preparation prompted Rudin twice to move for a mistrial, but both of her motions were denied. Id. at 579-80, 585-86. Pitaro, who was appointed after Amador's opening statement, described the representation as " 'a farce, and that disturbs me as an attorney. . . . This has become a sham, a farce and a mockery.'"  Id. at 590 (Rose, J., dissenting).
A jury convicted Rudin on both charges. For her conviction for murder with the use of a deadly weapon, the trial court imposed a sentence of life imprisonment with a possibility of parole after twenty years. For her conviction for unauthorized surreptitious intrusion of privacy by a listening device, the court imposed a one-year sentence, to run concurrently with Rudin's life sentence. Rudin's judgment of conviction was entered on September 17, 2001.
On April 1, 2004, the Nevada Supreme Court affirmed both of Rudin's convictions on direct appeal. See Rudin v. State, 120 Nev. 121, 86 P.3d 572 (Nev. 2004). The court concluded that Amador's alleged conflict of interest and ineffectiveness, while sufficient to cause " concern," " must be examined in a separate post-conviction proceeding at which time Rudin's post-conviction attorney will examine the entire record, interview all relevant witnesses and present the matter to the district court for a full and complete airing and decision." Id. at 588. The Nevada Supreme Court's remittitur issued on April 27, 2004, and Rudin did not seek a writ of certiorari from the U.S. Supreme Court. The deadline for her to do so was June 30, 2004.
B. Rudin's Petitions for Collateral Relief
Around the time that appellate review of Rudin's judgment of conviction concluded, two statutes of limitation began to run, both relating to her ability to seek collateral review of the errors that she alleged had affected her underlying criminal trial. The first limitations period is defined by state law and requires, except under certain circumstances, that a state-court petition for post-conviction relief be filed within one year of the Nevada Supreme Court issuing its remittitur:
Unless there is good cause shown for delay, a petition that challenges the validity of a judgment or sentence must be filed within 1 year after entry of the judgment of conviction or, if an appeal
has been taken from the judgment, within 1 year after the Supreme Court issues its remittitur. For the purposes of this subsection, good cause for delay exists if the petitioner demonstrates to the satisfaction of the court:
(a) That the delay is not the fault of the petitioner; and
(b) That dismissal of the petition as untimely will unduly prejudice the petitioner.
Nev. Rev. Stat. § 34.726(1). The second limitations period is defined by AEDPA, and it also establishes a one-year deadline for a state prisoner seeking a federal writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The AEDPA limitations period runs from the latest of four specified dates:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
Id. The AEDPA limitations period may be tolled if a petitioner " properly file[s]" a petition for post-conviction relief in state court; where that occurs, the limitations period will be tolled for the time during which the state-court petition is pending. Id. § 2244(d)(2).
Thus, from the date on which the Nevada Supreme Court issued its remittitur, which was April 27, 2004, Rudin had one year, or until April 27, 2005, to file a petition for post-conviction relief in state court. And from the date on which the deadline passed for seeking a writ of certiorari from the U.S. Supreme Court, which was June 30, 2004, she had one year, or until June 30, 2005, to file an application for a writ of habeas corpus in federal court. If Rudin were " properly" to file her state post-conviction petition, the time for filing an application for federal habeas relief would be statutorily tolled.
With that statutory background in mind, we turn to the series of events that occurred during each of those respective one-year periods in this case.
1. Attorney Dayvid Figler's Representation
On April 30, 2004, three days after the Nevada Supreme Court issued its remittitur on direct appeal of Rudin's judgment of conviction, Rudin's appellate counsel, Craig Creel, moved to withdraw as counsel and asked the trial court to appoint post-conviction counsel. The trial court granted Creel's motion on June 8, 2004. Rudin, proceeding pro per, filed a similar motion on July 14, 2004, also seeking appointment of post-conviction counsel. At a hearing
on November 10, 2004, after 197 days had passed since the state supreme court issued its remittitur, the court granted Rudin's motion and appointed attorney Dayvid Figler to represent her. Two weeks later, on November 24, 2004, the court issued an order to that effect.
At the November 2004 hearing at which the state court appointed Figler to represent Rudin, Rudin attempted pro per to file with the court a series of papers. In the district court and on appeal, Rudin contends that those papers would have constituted a " properly filed" post-conviction petition had the court accepted them. See 28 U.S.C. § 2244(d)(2). Pursuant to the applicable local rules, however, the court declined to accept them and instead " turned [them] over to Mr. Figler."  But Figler never filed them with the court. One month later, in December 2004, Judge Bonaventure, who had presided over Rudin's trial and post-conviction proceedings up until that point, recused himself sua sponte, and Rudin's case was reassigned.
When Rudin's case was reassigned to another judge on December 29, 2004, 246 days had passed since the Nevada Supreme Court issued its remittitur. Rudin therefore had 119 days left to file a petition for post-conviction relief in state court. With respect to AEDPA, 182 days had passed since that limitations period had begun to run, leaving Rudin with 183 days to file an application for federal habeas relief. Again, the deadlines for filing those petitions were April 27, 2005, and June 30, 2005, respectively. And although Rudin had once tried to file a petition for relief ...