FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BENITO JULIAN LUNA,

Petitioner-Appellant,

v.

SCOTT KERNAN,

Respondent-Appellee.

No. 12-17332

D.C. No.

2:04-cv-00627-MCE-GGH

OPINION

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, Jr., Chief District Judge, Presiding

Argued and Submitted

November 19, 2014—San Francisco, California

Filed April 28, 2015

Before: Ronald M. Gould, Paul J. Watford,

and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Watford
2 LUNA V. KERNAN

SUMMARY*

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.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
LUNA V. KERNAN 3

COUNSEL

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.

OPINION

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.

I

Because claims for equitable tolling are inherently factintensive, we must begin with a fairly detailed description of

the facts underlying Luna’s claim.
4 LUNA V. KERNAN

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

(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 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 stayLuna’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
LUNA V. KERNAN 5

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 (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.
6 LUNA V. KERNAN

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 set to expire

on February 14, 2005. (This is the date the parties and the

district court calculated, which we will adopt for purposes of

this decision.)

On January 25, 2005, approximately three weeks before

AEDPA’s 1-year statute of limitations expired, Wiseman

responded to a letter from Luna asking, “is there any response

from the federal courts based on my case?” Wiseman wrote

back: “Please note that my law clerk has recently finished a

draft of a fully exhausted federal Writ of habeas Corpus. We

intend to file it shortly, and, of course, I will send you a

copy.” Despite this assurance, Wiseman did not file Luna’s

federal habeas petition shortly afterward. He did not file it

for another six-plus years.
LUNA V. KERNAN 7

Wiseman continued to serve as Luna’s counsel

throughout that lengthy interval, patiently responding to

Luna’s inquiries about the status of the case and providing

updates on how the case was progressing. For example, in

August 2005, some six months after AEDPA’s statute of

limitations had already expired, Wiseman wrote to Luna “to

respond to your letters and to provide you with an update on

your case.” Wiseman began by stressing that they had a long

road ahead of them: “Habeas corpus litigation is very

complex, . . . and the process usually takes several years to

finish.” Wiseman then summarized where things stood:

The status of your case is as follows: I

moved to dismiss the original federal petition

that you filed because the claims were not

exhausted. That is, the state courts did not

have an opportunity to rule on the claims that

you raised in the federal petition. Exhaustion

is mandatory, and the federal court is not

allowed to rule on a claim that has not been

exhausted. Thereafter, I filed on your behalf

in the California Court of Appeal, Third

Appellate Division a state Petition for Writ of

Habeas Corpus. The Court of Appeal denied

the petition (this happens to most petitions

filed in that court) on October 7, 2004. In

order to fully exhaust your claims, however, I

must file on your behalf a Petition for Writ of

Habeas Corpus with the California Supreme

Court.

Wiseman closed by stating:
8 LUNA V. KERNAN

I will send you a Petition for Writ of

Habeas Corpus for your signature. After you

sign it, please return it to me. I will file it

with the California Supreme Court. In the

meantime, I hope this letter has answered

some of your questions. Please feel free to

call me collect or write if you have any

additional questions or comments.

Because Wiseman’s letter made no mention of a federal

habeas petition having been filed in late January, Luna could

have inferred that no such filing had occurred. However,

Wiseman continued to assure Luna that everything was on

track and that they would soon be returning to federal court. 

A few months after sending the letter quoted above, Wiseman

responded in November 2005 to another letter from Luna. 

Wiseman wrote:

This letter is in response to your letter to

me dated November 11, 2005. I will have

your Petition for Habeas Corpus that I will file

on your behalf in the California Supreme

Court finished soon. Once it is finished, I will

mail it to you for your signature. I anticipate

that the California Supreme Court will

summarily deny the petition—the Court does

this routinely.

After the Supreme Court acts on your

petition, we will be able to return to federal

court with a fully exhausted federal Petition

for Writ of Habeas Corpus. I intend to ask the

federal judge to review, among other things,

the legality of the “confessions.” However, as
LUNA V. KERNAN 9

I mentioned in an earlier letter, in most cases,

the federal judge defers to what was already

decided by the state court judges. There are

exceptions to this rule, which I do not want to

address in this letter. In any event, at the

appropriate time, I will ask the federal judge

to hold an evidentiary hearing on the matter.

For reasons that are unclear, despite promising in

November 2005 that he would have Luna’s California

Supreme Court petition finished “soon,” Wiseman did not file

it until February 28, 2007. The California Supreme Court

denied it as untimely on July 18, 2007.

Although all of Luna’s claims were fully exhausted at that

point, Wiseman did not promptly file a habeas petition on

Luna’s behalf in federal court, as one might have expected. 

For reasons that once again are unclear, Wiseman did not file

Luna’s federal habeas petition until almost four years later, in

June 2011. Throughout that period, Luna remained in regular

contact with Wiseman. The two continued to correspond by

letter, as they had in the past, and it is clear that they spoke by

telephone as well, although the record as it stands now does

not tell us anything about the frequency or subject matter of

those calls. We do not know whether Luna ever inquired

about the reasons for the long delay, or whether he expressed

concern about the timeliness of his return to federal court. 

We do know that Wiseman had previously assured Luna that

his claims would eventually be heard on the merits, with the

caveat that federal habeas litigation can take years to

complete.

Wiseman finally filed Luna’s federal habeas petition on

June 3, 2011. We cannot be sure why Wiseman believed he
10 LUNA V. KERNAN

could wait until 2011 to file the petition, but the limited

record before us sheds some light on the matter. Wiseman

apparently believed that by “amending” Luna’s 2004 pro se

petition he could avoid any potential time bar because the

“amended” petition would relate back to the timely filed pro

se petition. When Wiseman filed Luna’s federal habeas

petition in June 2011, he styled it as an “Amended Petition

for Habeas Corpus” and attempted to file it under the same

case number originally assigned to Luna’s pro se petition. 

Because Wiseman had voluntarily dismissed Luna’s pro se

petition, however, that case had long since been closed. As

a result, there was no pending petition to which the

“amended” petition could relate back. See Henry v. Lungren,

164 F.3d 1240, 1241 (9th Cir. 1999).

The magistrate judge immediately spotted this problem

and issued an order to show cause why the newly filed

petition should not be dismissed as time-barred. Wiseman

responded by requesting that the court appoint new counsel

for Luna, candidly acknowledging that Luna might wish to

seek equitable tolling on the basis of Wiseman’s handling of

the case. The magistrate judge granted the motion and

appointed new counsel to represent Luna.

Luna’s new counsel argued that the 1-year statute of

limitations should be equitably tolled due to Wiseman’s

professional misconduct. In support of his motion, Luna’s

counsel submitted some of the letters exchanged between

Wiseman and Luna. The magistrate judge did not hold an

evidentiary hearing, but he did order Luna’s counsel to

submit, for the court’s in camera review, Wiseman’s entire

correspondence file with Luna. After reviewing those

materials, the magistrate judge concluded that the letters

originally submitted by counsel were the only ones relevant
LUNA V. KERNAN 11

to the equitable tolling analysis. The remaining letters were

not made part of the record and have not been reviewed by

counsel for the State.

The magistrate judge concluded that Luna had not met his

burden of proving entitlement to equitable tolling. The

district court adopted the magistrate judge’s findings and

conclusions without modification and granted the State’s

motion to dismiss Luna’s habeas petition as time-barred. The

court granted Luna a certificate of appealability on the issue

of whether Luna is entitled to equitable tolling.

II

A petitioner who seeks equitable tolling of AEDPA’s

1-year filing deadline must show that (1) some “extraordinary

circumstance” prevented him from filing on time, and (2) he

has diligently pursued his rights. Holland v. Florida, 560

U.S. 631, 649 (2010). The district court held that Luna had

not shown extraordinary circumstances and denied Luna’s

claim for equitable tolling on that basis. Whether

extraordinary circumstances exist on a given set of facts is a

question of law, so we review the district court’s ruling de

novo. Gibbs v. LeGrand, 767 F.3d 879, 884 (9th Cir. 2014);

Dillon v. Conway, 642 F.3d 358, 362 (2d Cir. 2011) (per

curiam). We conclude that Luna has shown extraordinary

circumstances, but we must remand for the district court to

address diligence in the first instance on a more fully

developed record.

A

Luna contends that Wiseman’s mistakes in the course of

representing him constitute extraordinarycircumstances. Not
12 LUNA V. KERNAN

all attorney mistakes qualify as a basis for equitable tolling. 

Courts have held that run-of-the-mill mistakes by one’s

lawyer that cause a filing deadline to be missed do not rise to

the level of extraordinary circumstances. See, e.g., Frye v.

Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001)

(miscalculating due date); Sandvik v. United States, 177 F.3d

1269, 1271–72 (11th Cir. 1999) (filing by ordinary mail

shortly before deadline expired). Mistakes of this sort, which

amount to nothingmore than “garden variety” negligence, are

deemed too routine and unremarkable to warrant equity’s

intervention. Holland, 560 U.S. at 651–52. However, acts or

omissions that transcend garden variety negligence and enter

the realm of “professional misconduct” may give rise to

extraordinary circumstances if the misconduct is sufficiently

egregious. Id. at 651; Spitsyn v. Moore, 345 F.3d 796, 800

(9th Cir. 2003). The question here is whether Wiseman’s

actions represent egregious professional misconduct or mere

garden variety negligence.

Let’s begin with Wiseman’s decision to dismiss Luna’s

pro se petition. Before Wiseman’s appointment, through his

own diligent efforts, Luna had managed to protect himself

against the risk of missing AEDPA’s 1-year deadline by

filing a timely petition. True, a number of the claims Luna

alleged had not been exhausted, but Wiseman initially

avoided the need to dismiss the petition by securing a stay

and abeyance. At that point, Luna reasonably expected

Wiseman to help him complete the state-court exhaustion

process as expeditiously as possible so that Luna’s claims

could be heard on the merits in federal court.

Instead of advancing his client’s interests, Wiseman

affirmatively undermined them by voluntarily dismissing the

petition for no good reason. Dismissing the petition might
LUNA V. KERNAN 13

have made sense had Wiseman been planning to add entirely

new, unrelated claims, in order to avoid AEDPA’s strict

limitations on the filing of second or successive petitions. 

See 28 U.S.C. § 2244(b). But as far as the record discloses,

Wiseman had no such plans; he dismissed the petition

because he believed (erroneously) that all of Luna’s claims

were unexhausted. If, as seems apparent, Wiseman planned

to do nothing more than amend the petition to add additional

facts and legal analysis in support of the claims already

alleged, there was no need to dismiss the petition outright. 

Wiseman could have asked for leave to amend the petition

later, while preserving the timely filing date of Luna’s pro se

petition. See Nguyen v. Curry, 736 F.3d 1287, 1297 (9th Cir.

2013); Anthony v. Cambra, 236 F.3d 568, 576–77 (9th Cir.

2000). Dismissing Luna’s pro se petition thus offered no

strategic benefit and carried a monumental downside risk: If

for whatever reason Wiseman failed to file Luna’s federal

habeas petition within the time allowed, Luna would forfeit

his right to federal review altogether.

Voluntarily dismissing a timely federal habeas petition,

standing alone, is not necessarily egregious professional

misconduct. After all, so long as Wiseman had completed the

exhaustion process and refiled Luna’s federal petition before

AEDPA’s limitations period expired, probably the most one

could say is no harm, no foul. But the actions Wiseman took

following dismissal compounded the error he had already

made. Having exposed his client to the risk of default where

none existed before, Wiseman assumed a duty of the highest

order to ensure that he filed a fully exhausted petition on

Luna’s behalf within the time allowed. Failing to fulfill that

duty was bad enough. Worse still, in response to an inquiry

from Luna shortly before the statute of limitations expired,

Wiseman misled Luna to believe that a fully exhausted
14 LUNA V. KERNAN

federal habeas petition would be filed “shortly.” Had Luna

been informed of the truth—that the filing deadline was three

weeks away and that Wiseman would not be filing a petition

within that timeframe—Luna could have filed a pro se

petition on his own, as he had already done once before, prior

to Wiseman’s appointment.

A number of circuits, including ours, have held that

affirmatively misleading a petitioner to believe that a timely

petition has been or will soon be filed can constitute

egregious professional misconduct. Doe v. Busby, 661 F.3d

1001, 1012 (9th Cir. 2011); Dillon, 642 F.3d at 363–64;

Downs v. McNeil, 520 F.3d 1311, 1322–23 (11th Cir. 2008);

Fleming v. Evans, 481 F.3d 1249, 1256–57 (10th Cir. 2007);

United States v. Martin, 408 F.3d 1089, 1094–95 (8th Cir.

2005); United States v. Wynn, 292 F.3d 226, 230 (5th Cir.

2002). Wiseman engaged in precisely such misconduct here. 

But the misconduct in this case extends beyond an isolated

misleading statement. Even after wrongfully dismissing

Luna’s original pro se petition and then missing the 1-year

deadline for filing a new petition, Wiseman led Luna to

believe for another six-plus years that litigation of his federal

habeas petition was moving forward, albeit slowly, toward a

hearing on the merits. In truth, however, nothing had been

filed in federal court and the statute of limitations had long

since expired.

Wiseman’s actions in this case, considered collectively,

go beyond mere garden variety negligence. Attorney

mistakes that warrant the label “garden variety”—like

miscalculating a filing deadline—are the sorts of mistakes

that, regrettably, lawyers make all the time. They are

mistakes made routinely enough that they’re regarded as one

of the risks petitioners typically assume when relying on
LUNA V. KERNAN 15

counsel to litigate a case, rather than as an extraordinary

circumstance warranting equitable intervention. Courts do

not recognize run-of-the-mill mistakes as grounds for

equitable tolling because doing so “would essentially

equitably toll limitations periods for every person whose

attorney missed a deadline.” Lawrence, 549 U.S. at 336. No

such concerns arise by granting equitable tolling on the basis

of Wiseman’s misconduct. His actions were “utterly

deficient and unprofessional,” Doe, 661 F.3d at 1012, and,

unlike run-of-the-mill mistakes, were “far enough outside the

range of behavior that reasonably could be expected” in the

typical case that they may be regarded as “extraordinary.” 

Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir.

2003).

The State’s most forceful counter-argument is that, under

traditional agency principles, Luna should be bound by the

actions of his lawyer, however egregious theymay have been. 

According to the State, a claim for equitable tolling may be

predicated on an attorney’s misconduct only if the

misconduct severs the agency relationship, as in cases of

attorney abandonment. The State acknowledges that the

cases cited earlier foreclose this argument, as they authorize

equitable tolling based on a range of attorney misconduct not

limited to abandonment. However, the State contends that

those cases have been overruled by the Supreme Court’s

decision in Maples v. Thomas, 132 S. Ct. 912 (2012).

We do not share the State’s view, although at least one

other circuit does. See Cadet v. Florida Dep’t of Corrections,

742 F.3d 473, 477–82 (11th Cir. 2014). In Maples the Court

discussed the agency principles the State urges us to apply

here, but it did so in the context of applying the procedural

default doctrine, not the equitable tolling doctrine. The Court
16 LUNA V. KERNAN

reaffirmed the general rule established in Coleman v.

Thompson, 501 U.S. 722 (1991): If a lawyer’s actions during

the course of the agency relationship result in a state-court

procedural default, the petitioner is bound by those

actions—even if they are negligent—and cannot assert them

as “cause” to excuse the default. Maples, 132 S. Ct. at 922. 

By the same token, the Court held, if the lawyer’s actions

occur after the agency relationship has been severed, as in

cases of attorney abandonment, the petitioner is not bound by

those actions and may assert them as cause to excuse a

default. Id. at 924. In a footnote on which the State places

heavy reliance, the Court appeared to suggest that the same

agency principles also apply in the equitable tolling context.1

That footnote could be read to suggest that, absent some

agency-severing event such as abandonment, a petitioner will

be bound by his lawyer’s acts or omissions in both the

procedural default and equitable tolling contexts.

In our view, it remains unclear whether the Court

intended to hold in Maples that attorney misconduct falling

short of abandonment may no longer serve as a basis for

equitable tolling. We would be surprised to find that holding

lurking in a footnote to an opinion addressing an entirely

different doctrine, particularly given what the Court had said

less than two years earlier in Holland. In that case, the Court

appeared to hold that professional misconduct falling short of

abandonment could support a claim of equitable tolling, as

1 The footnote reads: “Holland v. Florida, 560 U.S. — (2010), involved

tolling of a federal time bar, while Coleman v. Thompson, 501 U.S. 722

(1991), concerned cause for excusing a procedural default in state court. 

We see no reason, however, why the distinction between attorney

negligence and attorney abandonment should not hold in both contexts.” 

Maples, 132 S. Ct. at 923 n.7 (citation omitted).
LUNA V. KERNAN 17

most circuits at the time, including ours, had also held. See

Holland, 560 U.S. at 651–52. The Court rejected as “too

rigid” the rule applied by the Eleventh Circuit, under which

“even attorney conduct that is ‘grossly negligent’ can never

warrant tolling absent ‘bad faith, dishonesty, divided loyalty,

mental impairment or so forth on the lawyer’s part.’” Id. at

649. The Court held that the Eleventh Circuit’s rule “fails to

recognize that, at least sometimes, professional misconduct

that fails to meet the Eleventh Circuit’s standard could

nonetheless amount to egregious behavior and create an

extraordinary circumstance that warrants equitable tolling.” 

Id. at 651. The Court recognized that the rule it was adopting

for equitable tolling cases differed from the rule announced

in Coleman, but stated that the difference was justified

because the procedural default doctrine implicates federalism

concerns absent in the equitable tolling context. Id. at 650.

Maples did not explicitly overrule Holland, and we lack

the authority to hold that Maples did so implicitly. See

Agostini v. Felton, 521 U.S. 203, 237 (1997). As a threejudge panel, we also lack the authority to declare that our own

precedent has been overruled by Maples, unless our cases are

“clearly irreconcilable” with Maples. See Miller v. Gammie,

335 F.3d 889, 893 (9th Cir. 2003) (en banc). That test has not

been met here. Our circuit’s equitable tolling precedent

tracks the standard the Court adopted in Holland. See Doe,

661 F.3d at 1011–12; Spitsyn, 345 F.3d at 800. And, as just

noted, it’s decidedly unclear to what extent, if any, Maples

abrogated Holland’s reasoning on the question whether

attorney misconduct falling short of abandonment may

qualify as an extraordinary circumstance for equitable tolling

purposes. For now, then, our cases holding that egregious

attorney misconduct of all stripes may serve as a basis for

equitable tolling remain good law.
18 LUNA V. KERNAN

Having concluded that Wiseman’s professional

misconduct constitutes an extraordinary circumstance, we

must next determine whether that misconduct prevented Luna

from filing his federal habeas petition on time (what we have

sometimes referred to as the “causation” requirement). See

Spitsyn, 345 F.3d at 799. That requirement is easily satisfied

here. But for Wiseman’s misconduct, Luna would have filed

his federal habeas petition on time. We know that to be true

because Luna had filed his petition on time before Wiseman

ever arrived on the scene. Wiseman’s misconduct consisted

of undoing Luna’s diligent work and then misleading Luna to

believe for six-plus years that everything was proceeding on

track in federal court when that was not the case. Nothing

more need be shown to demonstrate causation in this context.

B

The magistrate judge did not thoroughly analyze whether

Luna had diligently pursued his rights because the judge

concluded that Luna had not shown extraordinary

circumstances. With respect to diligence, the magistrate

judge stated only that Luna “could not have done more to

ensure a timely filing once his attorney was appointed.” 

Because the magistrate judge focused on the period before

AEDPA’s 1-year statute of limitations expired in 2005, we

are unable to tell whether he also found that Luna had

diligently pursued his rights after that time. We cannot make

that determination in the first instance (a task we would be

reluctant to undertake in any event given the fact-intensive

nature of the inquiry) because the record is insufficiently

developed.

Luna contends that the current record establishes

reasonable diligence because it shows that, throughout the
LUNA V. KERNAN 19

relevant time period, he remained in regular contact with

Wiseman and asked for and received updates on the status of

his case. Under some circumstances, communicating with

one’s lawyer and relying on the lawyer’s assurances that

everything is proceeding apace can suffice to demonstrate

diligence. In Doe v. Busby, 661 F.3d 1001 (9th Cir. 2011),

for example, we held that Doe had shown reasonable

diligence by continuing to urge his attorney to file a federal

habeas petition over a period of three years, even after

learning that his attorney had blown the original filing

deadline. Throughout that period, the attorney told Doe that

a petition could not be filed until new evidence was

discovered but assured Doe that the search for such evidence

was ongoing. Id. at 1013–14. Nothing alerted Doe that he

needed to take further action to protect his rights until the

attorney abruptly resigned. “Untrained in the technicalities

of habeas law and incarcerated, Doe was in no position to

question a plausible explanation for the attorney’s delay or to

observe the thoroughness of the attorney’s supposedly

ongoing investigation for evidence.” Id. at 1014. We

concluded that a reasonable person in the petitioner’s shoes,

“if asked about the status of his or her lawsuit, would be

justified in replying, ‘My lawyer is handling it.’” Id. at 1015.

To establish diligence here, Luna must show not only that

he kept in touch with Wiseman, but also that it was

reasonable for him to continue relying on Wiseman’s

assurances about the progress of his case. See id. The record

before us contains only three letters from Wiseman to Luna

after the statute of limitations expired, and we do not have

declarations from Luna or Wiseman describing what

assurances Wiseman may have provided Luna during that

period, whether in writing or by telephone. We cannot say

whether Luna’s reliance on Wiseman was reasonable—or
20 LUNA V. KERNAN

whether circumstances should have alerted Luna earlier that

he needed to take additional action to protect his

rights—without knowing more about the nature of the

communications between Luna and Wiseman over the more

than six years in question.

Nor can we say, as the State urges, that the existing record

conclusively establishes that Luna was not diligent. We

acknowledge that the delay involved here—more than six

years—is considerable. The State contends that, given the

length of the delay, at some point Luna should have realized

that Wiseman was taking too long to file and that Luna

therefore needed to take action himself to protect his rights. 

Other than the sheer length of the delay, however, we see

nothing in the existing record to indicate that Luna should

have become aware of the need to take action. There is no

indication, for example, that Luna ever learned that

Wiseman’s misconduct had allowed the AEDPA statute of

limitations to expire. For all we know, Wiseman may have

assured Luna that AEDPA’s time limitations were of no

concern, based on Wiseman’s erroneous understanding of

when an amended petition could relate back to an earlier-filed

petition. Relying on that advice from a trained lawyer would

be just as reasonable as relying on the advice the petitioner in

Doe received from his lawyer, who told Doe that even a

concededly blown filing deadline was of no concern because

a late petition could be filed once they discovered new

evidence. Doe, 661 F.3d at 1013–14. Thus, unless we were

prepared to say that six-plus years is simply too long of a

delay in these circumstances—no matter what the

reason—we could not rule in the State’s favor without first

remanding to the district court for further development of the

record. As we did in Doe, we decline to impose any such
LUNA V. KERNAN 21

rigid cut-off based on the “passage of time alone.” Id. at

1015.

III

We address one final issue to assist the district court on

remand, relating to the time period during which Luna must

show that he exercised reasonable diligence.

In Gibbs v. LeGrand, 767 F.3d 879 (9th Cir. 2014), we

adopted the “stop clock” approach to analyzing claims for

equitable tolling. Under that approach, the statute-oflimitations clock stops running when extraordinary

circumstances first arise, but the clock resumes running once

the extraordinary circumstances have ended or when the

petitioner ceases to exercise reasonable diligence, whichever

occurs earlier. Id. at 891–92. In that sense, the stop-clock

approach to equitable tolling works in much the same way

statutory tolling does under 28 U.S.C. § 2244(d)(2): Any

period during which both extraordinary circumstances and

diligence are shown does not count toward the statute of

limitations, just as any period during which a properly filed

application for state post-conviction relief is pending does not

count toward the statute of limitations. See Wood v. Milyard,

132 S. Ct. 1826, 1831 & n.3 (2012). To determine whether

a petition is timely, we ask whether it was filed within the 1-

year limitations period after all periods of tolling are

subtracted from the count.

Under a pure stop-clock approach, a petitioner needs to

show diligence only during the period he seeks to have

tolled—i.e., the period during which the extraordinary

circumstances prevented timely filing. There is no need to

show diligence after the extraordinary circumstances have
22 LUNA V. KERNAN

ended. The clock remains stopped for the period during

which extraordinary circumstances existed and the petitioner

remained diligent, and the timeliness of the petition is

assessed accordingly. That is the rule followed in the Second

Circuit, which has adopted the stop-clock approach to

analyzing claims for equitable tolling. See Harper v. Ercole,

648 F.3d 132, 136–37 (2d Cir. 2011).

One of our earlier equitable tolling precedents, however,

requires a petitioner to show diligence through the time of

filing, even after the extraordinary circumstances have ended. 

In Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003), we held

that the petitioner had shown extraordinary circumstances

where his attorney, although retained nearly a full year ahead

of AEDPA’s filing deadline, ignored all of Spitsyn’s phone

calls and letters, never filed a petition on Spitsyn’s behalf,

and then delayed returning Spitsyn’s files until after the

statute of limitations had expired. Id. at 798–99, 801. We

remanded for the district court to determine whether Spitsyn

had been reasonably diligent. In particular, we directed the

district court to determine whether Spitsyn had exercised

reasonable diligence during the 174 days that elapsed

between the time Spitsyn received his files back (the point at

which the extraordinary circumstances ended) and the date

Spitsyn filed his own pro se petition. Id. at 801–02. Under

the pure stop-clock approach, there would have been no need

for this post-extraordinary circumstances diligence inquiry: 

Once Spitsyn received his files back and the clock began

ticking again, he would have been entitled to use whatever

time remained left on the clock before filing.

At some point, our circuit may need to decide whether it

makes sense to follow the stop-clock approach and at the

same time impose a diligence-through-filing requirement. If
LUNA V. KERNAN 23

the objective of the stop-clock approach is to give petitioners

one full year of unobstructed time to prepare a federal habeas

petition, a separate diligence-through-filing requirement

appears to thwart that objective. See Lott v. Mueller,

304 F.3d 918, 926–27 (9th Cir. 2002) (McKeown, J.,

concurring). However, under current circuit law, we must

apply both the diligence-through-filing requirement imposed

by Spitsyn and the stop-clock approach adopted in Gibbs.

To prevail on remand, then, Luna will need to show that

he remained diligent through filing—i.e., through June 3,

2011. If he makes that showing, his petition will also be

timely under the stop-clock approach. The extraordinary

circumstances spawned by Wiseman’s misconduct arose

before the statute of limitations expired, and they continued

uninterrupted through Wiseman’s filing of the petition on

June 3, 2011. If Luna shows reasonable diligence throughout

that period, the clock will remain stopped through the date of

filing, rendering his petition timely.

* * *

We vacate the district court’s judgment dismissingLuna’s

federal habeas petition and remand for the district court to

determine in the first instance, after conducting an evidentiary

hearing if necessary, whether Luna diligently pursued his

rights through the date of filing, June 3, 2011. See Sossa v.

Diaz, 729 F.3d 1225, 1237 & n.13 (9th Cir. 2013); Spitsyn,

345 F.3d at 802. That determination will dictate whether

Luna’s petition should be deemed timely.

Costs are awarded to the appellant.

VACATED AND REMANDED.