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Luna v. Kernan

United States Court of Appeals, Ninth Circuit

April 28, 2015

BENITO JULIAN LUNA, Petitioner-Appellant,
SCOTT KERNAN, Respondent-Appellee

Argued and Submitted November 19, 2014, San Francisco, California

Page 641

Appeal from the United States District Court for the Eastern District of California. D.C. No. 2:04-cv-00627-MCE-GGH. Morrison C. England, Jr., Chief District Judge, Presiding.



Habeas Corpus

The panel vacated the district court's judgment dismissing as time-barred a state prisoner's federal habeas petition and remanded in a case in which the prisoner contends that his lawyer's misconduct provides a basis for equitable tolling of the statute of limitations.

The panel held that the prisoner's counsel's actions represent egregious professional misconduct amounting to an extraordinary circumstance that prevented the prisoner from filing his federal habeas petition on time, where counsel voluntarily dismissed for no good reason the prisoner's pro se habeas petition containing exhausted and unexhausted claims, misled the prisoner to believe that a fully exhausted federal petition would be filed " shortly," missed the one-year deadline for filing a new petition, and led the prisoner to believe for another six-plus years that litigation of his federal petition was moving toward a hearing on the merits. The panel wrote that this court's cases holding that egregious attorney misconduct may serve as a basis for equitable tolling, even if the misconduct falls short of abandonment, remain good law.

The panel remanded for the district court to determine in the first instance, after conducting an evidentiary hearing if necessary, whether the prisoner diligently pursued his rights through the date of filing.

Barry Morris (argued), Walnut Creek, California, for Petitioner-Appellant.

Laura Wetzel Simpton (argued), Deputy State Attorney General; Kamala D. Harris, Attorney General; Michael P. Farrell, Senior Assistant Attorney General; Carlos A. Martinez, Supervising Deputy Attorney General; Jamie A. Scheidegger, Deputy Attorney General, California Department of Justice, Sacramento, California, for Respondent-Appellee.

Before: Ronald M. Gould, Paul J. Watford, and Michelle T. Friedland, Circuit Judges.


Page 642

Paul J. Watford, Circuit Judge:

Benito Luna is a California state prisoner serving a life sentence for first-degree murder and attempted robbery. He filed a petition for writ of habeas corpus in federal court more than six years after the statutory filing deadline had passed. To avoid the time bar, he invokes the doctrine of equitable tolling, which allows a court to suspend the running of the statute of limitations in certain circumstances. In this case, Luna contends that his lawyer's professional misconduct provides a basis for equitable tolling. We are asked to decide whether the district court correctly rejected that contention.


Because claims for equitable tolling are inherently fact-intensive, we must begin with a fairly detailed description of the facts underlying Luna's claim.

Luna's state-court convictions became final on December 30, 2003. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Luna had one year from that date to file his federal habeas petition, subject to statutory tolling for any period during which a " properly filed" application for state post-conviction relief was pending. 28 U.S.C. § 2244(d)(2). Luna filed a pro se federal habeas petition well ahead of time, on March 29, 2004. He filed the petition pro se because the Constitution does not grant prisoners a right to appointed counsel in post-conviction proceedings, see Lawrence v. Florida, 549 U.S. 327, 336-37, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007), and Luna could not afford to hire a lawyer on his own. Magistrate judges have the discretion, however, to appoint counsel for indigent state prisoners like Luna whenever the judge " determines that the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B).

The magistrate judge assigned to Luna's case determined that, given the complexity of the legal issues involved, the interests of justice required appointment of counsel. Ordinarily, that's a good thing for someone in Luna's shoes. " Sadly" though, as the magistrate judge later remarked, in this

Page 643

case Luna " may have been better off without counsel."

Luna's appointed counsel, Joseph Wiseman, assumed his duties on June 7, 2004. The representation began well enough. At a status conference held on July 15, 2004, the magistrate judge agreed to stay Luna's federal habeas petition and hold it in abeyance so that Luna could complete the exhaustion process in state court. Only one of the claims presented in Luna's pro se petition had been fully exhausted, which meant Luna would need to present the remaining claims to the California courts before the district court could consider them. This stay-and-abeyance procedure would have allowed Luna to return to state court to complete the exhaustion process while preserving the timely filing date of his original pro se petition.

Luna had started the exhaustion process even before Wiseman's appointment. On April 1, 2004, he filed a pro se habeas petition in the state trial court raising each of the unexhausted claims. The state court denied that petition on May 6, 2004. To complete the exhaustion process, Wiseman needed to promptly file a habeas petition raising the same claims in the California Court of Appeal and, if that court denied relief, file essentially the same petition in the California Supreme Court.

Rather than proceed immediately with those tasks, Wiseman returned to federal court. On August 12, 2004, despite the magistrate judge's earlier agreement to stay proceedings in federal court while Luna exhausted his claims in state court, Wiseman filed a motion requesting voluntary dismissal of Luna's pro se federal habeas petition. Wiseman sent Luna a copy of the motion the same day. Wiseman's motion stated that all of Luna's claims remained unexhausted, a fact that, if true, might have justified dismissal of the petition and precluded a stay and abeyance. See Rhines v. Weber, 544 U.S. 269, 275-77, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005); Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006). But Wiseman was wrong--one of the claims raised in Luna's pro se petition had been fully exhausted, so a stay was available. Nonetheless, because motions for voluntary dismissal are automatically granted, see Fed.R.Civ.P. 41(a), the magistrate judge dismissed Luna's pro se petition without prejudice and directed the clerk of court to close the case. The clerk did so on September 14, 2004.

On September 28, 2004, Wiseman took the next step toward completing the exhaustion process by filing a habeas petition in the California Court of Appeal. Why it took Wiseman more than three months from the date of his appointment to accomplish that task isn't apparent, as Wiseman did little more than retype, with minor edits, the text of the pro se petition Luna had filed in the state trial court. The Court of Appeal summarily denied the petition on October 7, 2004.

To complete the exhaustion process, Wiseman's next step should have been to file, without delay, a habeas petition raising the same claims in the California Supreme Court. For reasons that are hard to discern, Wiseman failed to do that. (He did not end up filing a petition in the California Supreme Court until more than two years later.) Meanwhile, because Wiseman did not timely file either the state Court of Appeal petition or the California Supreme Court petition, AEDPA's statute of limitations continued to run, with the 1-year deadline for filing Luna's federal habeas petition ...

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