F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

B E N I T O J U L I A

N L U N A , Petitioner-Appellant

,

v.

S C O T T K E R

N A N , R espondent-Appellee

. No. 12-17332

D.C. No. 2:04-cv-00627-MCE-GGH

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California Morrison C. Eng land, J r., Chief District J u d g e, Presiding

Arg ued and Submitted November 19, 2014—San F rancisco, California

F iled April 28, 2015

B efore: Ronald M. Gould, Paul J . W atford, and Michelle T. F riedland, Circuit J udg es.

Opinion by

J u dg e W atfordL U N A V

. K E R

N A N 2

SUMMARY *

Habeas Corpus

T h e p a n e l v a c a ted the district court’s judg ment dismissing

as time-barred a state p r i s oner’s federal habeas petition a nd remanded in a case in which the prisoner contends that hi s lawy er’s misconduct provides a basis for equitable tolling o f the statute of limitations.

The panel held that the prisoner’s counsel’s a c t i ons represent eg reg ious professional misconduct a mounting to an

ex traordinary circumstance that prevented the prisoner from filing his federal habeas petition on tim e , where counsel

v oluntarily dismissed for no g ood reason the prisoner’s pr o

se habeas petition containing ex hausted a n d unex hausted claims, misled the prisoner to believe that a fully ex hausted federal petition would be filed “shortly ,” missed the o n e-y e ar deadline for filing a new petition, and led th e p r i soner to believe for another six

- plus y ears that litig ation of his federal
p e tition was moving toward a h earing on the merits. Th e panel w rote that this court’s cases holdin g t h a t eg reg ious attorney misconduct may serve as a b a sis for equitable tolling

, even if the misconduct f alls short of abandonment, remain g ood law.

The panel remanded f

or the district c ourt to determine in the first instance, after conducting an ev identiary hearing if
necessary , whether the prisoner dilig e ntly pursued h is rig hts throug h the date of filing

.

* T h is s u m

m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.L U N A V

. K E R

N A N 3

COUNSEL

B arry Morris (arg

ued), W alnut Creek, Califo rnia, for Petitioner-Appellant.

L aura W etz el Simpton (arg u ed), Deputy State Attorney General; Kamala D. Harris, Attorney G eneral; Michael P. F arrell, S e nior Assistant Attorney G eneral; Carlos A

. Martinez

, Supervising Deputy Attorney General; J a m ie A

. S c h e i d e g g e r , D e p u t y A t t o r n e y G e n e r a l

, C a l i f o r n i a Department of J us t i c e , Sacramento, California, for Respondent-Appellee.

OP INION

W A TF ORD, Circuit J udg e:

B e nito L una is a California state prisoner se r v i n g a life
sentence for first-deg ree murder and attempted robbery

. He filed a petition for writ o f habeas corpus in federal court more than six y e ars after the statutory filing d e adline had passed. To a void the time bar, h e invokes the doctrine of equitable tolling

, which allows a court to s u s pend the running o f the
statute of limi t a t i ons in certain circumstances. I n this c ase, L una contends that his lawy er ’ s professional misconduct provides a basis for equitable tolling

. W e are asked to decide whether the district court correctly rejected that contention.

I

B e cause claims f

or equitable tolling are inherently factintensive, we must b eg in with a fairly detailed description o f the facts underly

ing L una’s claim.L U N A V

. K E R

N A N 4

L una’s state-court convictions became final on December 30, 2003. Under the Antiterrorism a n d Effective Death Penalty Act of 1996 (AEDPA), L u na had one y ear from that date to file h i s federal habeas petition, subject to statutory tol ling for any period during which a “properly filed” application for state post-conviction relief was p ending

. 28 U.S.C. § 2244(d) ( 2 )

. L una f iled a pro se federal h abeas petition well ahead of time, on March 2 9, 2004. He filed the petition pro se because the Constitution does not g rant prisoners a rig ht to appointe d counsel in post-conviction proceeding s, see Lawrence v

. Florida

, 549 U.S. 3 27, 336–37 (2007), and L una could not afford to hire a lawy er on his

own. Mag istrate judge s h a ve the discretion, however, to appoint coun s el for indig ent state prisoners like L u na whenever the judg e “determines that the interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B ).

The mag istrate judg e assig ned to L una’s case determined that, g iven the complex ity of the leg al issues i n volved, the interests o f justice required appointment of counsel. Ordinarily

, that’s a g ood thing for someone in L una’s shoes. “Sadly ” thoug h, as the mag istrate judg e later remarked, in this case L

una “may have been better off without counsel.”

L una’s appointed counsel, J oseph W iseman, assumed his duties on J une 7, 2004. The representatio n b ega n w ell
enoug h. At a status conference held on J uly 15, 2004, the
mag istrate judg e ag reed to stay L una’s federal habeas petition and hold it in abey a

nce so that L una c o u l d complete the

ex h austion p rocess in state c o u r t

. Only one of the c laims presented in L u na’s pro se petition had been fully ex hausted,

w hich meant L una w ould need to present the remaini n g claims to the California courts before the district court could consider them. This stay -and-abey ance procedure wouldL U N A V

. K E R

N A N 5

h a v e allowed L una to return to state court to complete th e

ex h austion process while preserving the timely filing date o f his orig inal pro se petition.

L una h ad started the ex haustion p rocess e ven b e f ore W iseman’s appointment. On April 1
, 2004, he filed a pro se habeas petition in the state trial court raisin g e a c h of the

unex h a usted claims. The state c ourt denie d t h a t petition on May 6, 2 004. T o complete the ex haustion process, W iseman needed to promptly file a habeas petition r aising the same claims in the California Court o f Appeal and, if that court denied relief, fil e e ssentially the same petition in the California Supreme Court.

Rather than proceed immediately wi t h those tasks, W iseman returned to federal c o urt. On Aug ust 12, 2004, despite the mag istrate judg e’s ea r l i e r ag reement to stay proceeding s in federal court w hile L u na ex hausted his c laims in state court, W iseman filed a motion r eq uesting voluntary dismissal of L u na’s pro se f ederal habeas petition. W iseman

s e n t L una a copy o f the motion the same day

. W isema n ’s motion stated that a ll of L una’s claims remained

unex h a usted, a fact that, if true, mig ht have justified d ismissal of the petition and p recluded a stay and abey ance. See Rhines

v. W eber

, 544 U.S. 269, 275–77 (2005); Rasberry v. G arcia
, 448 F .3d 11 5 0
, 1 1 54 (9th Cir. 2006). B ut W iseman was wrong —one of the claims raised in L una’s pro se petition h ad be en f ully ex hausted, so a stay was available. Nonetheless, because motions for voluntary dismissal are auto m a tically
g ranted, see F ed

. R

. C i v. P. 41(a), the mag istrate judg e dismissed L una’s pro se p etition without p rejudice a nd directed the c lerk of court to close the case. The clerk did so on September 14, 2004.L U N A V

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N A N 6

On September 28, 2004, W iseman took the n e x t step toward completing the ex h a u stion process by filing a h abeas petition in the California Court of Appeal. W h y i t t o o k W iseman more than three months f rom the date of his appointment to accomplish that task isn’t apparent, a s W iseman did little more than rety pe, with minor e dit s , the
tex t of the pro s e p e t i t i on L una had filed in the state trial
court. The Court of Appeal summarily denied the petition on October 7, 2004.

To complete the ex h austion process, W iseman’s nex t step should have been to f

ile, without d elay

, a hab e a s petition raising the same claims in the California Supreme Court. F o r

reasons that a r e hard to discern, W iseman f ailed to do that. (He did not end up filing a p etition in the California Supreme Court until more than two y e ars later.) Meanwhile, because W iseman 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 , w i t h the 1-y e ar deadline for filing L una’s federal habeas petition set to ex pire

on F ebruary 14, 2005. (This is the d a te the parties and the district court calculated, w hich we will adopt for purposes o f this decision.)

On J a nuary 25, 2 0 05, approx imately three weeks before AEDPA’s 1-y ear statute of limitations ex pi r e d

, W iseman responded to a letter f

rom L una asking

, “is there a ny response from the federal courts based o n my case? ” W iseman wrote back: “Please note that my law clerk has recently finished a draft of a fully ex hausted federal W rit o f habeas Corpus. W e intend to file it shortly

, and, of course, I wi l l s end y ou a cop y .” Despite this assurance, W iseman did not f ile L una’s f e d e ral habeas petition shortly a fterward. H e did not f ile i t for another six -plus y ears.L U N A V

. K E R

N A N 7

W iseman continued to serve as L u n a ’s counsel throug hout that leng thy interval, p atiently responding to L una’s inquiries about the stat u s o f the case and providing updates on how the c ase w a s prog ressing

. F or ex ample, in Aug ust 2005, some six months after A E DPA’s statute o f limitations had already ex pired, W iseman wrote to L una “to respond to y our letters and to provide y ou with an update on
y our case.” W iseman b eg an by stressing that they h ad a long road a head of them: “Habeas co r p u s l itig ation is very complex

, . . . and the process usually takes several y e a r s to finish.” W iseman then summariz ed where thing s stood:

T he status of y our c ase is as follows : I moved to dismiss the orig inal f ederal petition that y ou filed because the claims were not

ex h au s t e d. That is, the state courts did not have an opportunity to rule on the claims that
y ou raised in the federal petition. Ex haustion is mandatory

, and t h e federal court is not allowe d t o r ule on a claim that has not been

e x h a usted. Thereafter, I filed on y our behal f in the Calif

ornia Court of Appeal, Third Appellate Division a state Petition for W rit o f Habeas Corpus. The Court of Appeal denied the petit i o n (this h appens to most petitions filed in that court) on October 7, 2 0 0 4

. I n order to fully e x haust y o ur claims, however, I
must file on y our behalf a Petition for W rit o f Habeas Corpus with the C alifornia Supreme Court.

W iseman closed by

stating :L U N A V

. K E R

N A N 8

I will send y ou a Petition for W rit o f Habeas Corpus for y

our sig nature. After y

ou sig n it, please ret u rn it to me. I will file it with the Calif

o r n ia Supreme Court. I n the meantime, I hope this letter has answered

some of y our questions. P l ea s e feel free to call me c ollect or write if y ou have any additional questions or comments.

B e cause W iseman’s letter m ade no mention o f a federal habeas petition having been filed in late J anuary , L una could have inferred that no such f ili n g h a d occurred. However, W iseman cont i n u ed to assure L una that every thing was on track and that they w ould soon be returning to federal court. A few months after sending the letter quoted a bove, W iseman responded in November 2005 t o a n o ther letter f rom L una. W iseman wrote:

This letter is in response to y our letter to

me dated November 11, 2 0 0 5

. I will have
y our Petition f

or H abeas Corpus that I w ill file

on y our beha l f i n the California Supreme Court finished soon. O nce it is finished, I will mail it to y ou for y our sig n ature. I anticipate that the California S u p r eme Court will summarily

deny the petition—the Court does this routinely

.

After the Supreme Court acts on y our petition, we will be a b l e to return to federal
court with a f

ull y e x hausted federal Petition for W rit of Habeas Corpus. I intend to ask the feder a l judg e to r eview, among other thing s, the leg ality of the “confessions.” However, a sL U N A V

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N A N 9

I mentioned in an earlier letter, in most cases, the fe d eral judg e defers to what was already decided b y the state court judg es. T h e r e a re

ex c eptions to this r

ule, which I do not want to

a d d ress in this letter. I n any e vent, at t h e appropriate time, I wi ll ask the federal judg e to hold an evidentiary

hearing on the matter.

F or reasons that are unclear, d espite p romising in No v e m b er 2005 that h e would h ave L una’s California Supreme Court petition finished “ soon,” W iseman did not file it until F ebruary 28, 2007. Th e C a lifornia Supreme Court denied it as untimely on J uly 18, 2007.

Althoug h all of L una’s c laims were fully ex hausted at that point, W iseman did not promptly fil e a habeas petition on L una’s b ehalf in federal court, as o ne mig h t hav e ex pected. F or reasons that once ag ain are unclear, W iseman did not file L una’s federal habeas p etition u ntil almost four y ears later, in J une 2011. Throug h out that period, L una remained in reg ular
contact with W iseman. The two continued to correspond b y letter, as they had in the past, and it is clear that they spoke b y telephone a s w ell, althoug h t he record a s it stands now does
not tell us any

thin g a b o ut the frequency or subject matter o f those calls. W e d o not know w hether L una ever inquired about the reasons for the long delay

, or whether he ex pressed

concern a b o u t the timeliness o f his return to federal court. W e do know that W iseman had previously assured L una that his claims would eventually be heard on the merits, with the
caveat that federal habeas litig ation can t a ke y ears to complete.

W iseman f

inally filed L una’s federal habeas petition on J une 3, 2011. W e cannot be sure why Wiseman believed heL U N A V

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N A N 10

could w ait until 2011 to file the pet i t i on, but the limited record before us shed s s o m e lig ht on the matter. W iseman apparently believed th at b y “ amending ” L una’s 2004 pro se p e t i tion h e could avoid any potential time bar because t h e “amended” petition w ould relate back to the timely f iled pro

se petitio n

. W hen W iseman filed L una’s federal h abeas petition in J une 2011, he sty led it as an “Amended Petition f or Habeas Corpus” and attempted to file it under t h e s a m e

case number orig inally a ssig ned to L una’s pro se p etition. B ecause W iseman had voluntarily dismissed L una’s pro se petition, however, that cas e h ad long since been c losed. A s

a result, there was n o p ending petitio n t o w h ich the “amended” petition could relate back. See Henry v. Lungren
, 164 F .3d 1240, 1241 (9th Cir. 1999).

The mag istrate judg e immedi at ely spotted this problem and issued a

n order to show c ause wh y t h e newly filed petition should not be dismissed as t i m e-barred. W iseman responded by r equesting that the c ourt a p p o i nt new counsel for L una, candidly acknowledg ing that L una m i gh t w ish to seek equitable tolling on the basis of W iseman’s handling o f the case. The mag istrate judg e g ranted the motion a nd appointed new counsel to represent L una.

L una’s n ew counsel arg ued t h at the 1-y ear statute o f limitations should be e q u i tably tolled due to W iseman’s professional misconduct. I n su p p o rt of his motion, L una’s counsel submitted some of the le t ters ex chang ed b etween W iseman and L una. T he mag istrate jud g e did not hold an evidentiary hearing

, but he did order L una ’ s c ounsel to submit, for the court’s in c a me ra review, W iseman’s entire corresponden c e file with L una. After reviewing those materials, the mag istrate j udg e concluded that the letters orig inally submitted by counsel were the only o n es relevantL U N A V

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to the e quitable tolling analy sis. The remaining letters were not made part of the r e cord a n d have not been reviewed b y counsel for the State.

The mag istrate judg e concluded that L una had not met his b u rden of proving e ntitlement to equitable tolling

. The district c ourt adopted the mag istrate judg e’s findi n gs and conclu s i o n s w ithout modification and g ranted the State’s motion to dismiss L una’s habeas petition as time-barred. The
court g ranted L una a certificate o f appealability on the issue of whether L

una is entitled to equitable tolling

.

I I

A p etitioner who seeks e q u itable tolling of AEDPA’s 1-y ear filing deadline must show that (1) some “ex traordinary circumstance” prevented him from f iling on time, and (2) he has dilig ently pursued his r ig hts. H olland v. Florida

, 560 U.S. 631, 6 49 (2010). The district court held t hat L una h ad
not shown ex traordinary circumstances and denie d L una’s claim for equitable tolling on that basis. W hether

ex traordinary

circumstances ex ist on a g iven set of facts is a question of law, so we revi e w the district court’s ruling de

novo

. Gibbs v. LeGrand

, 767 F .3d 879, 884 (9th Cir. 2 014); Dillon v. Conway
, 6 4 2 F. 3d 358, 3 62 (2d Cir. 2011) (per curiam). W e conclude t h a t L una has shown ex traordinary circumstances, but w e must remand for the district court to address dilig ence in the first instance on a more f ully developed record.

A

L una contends that W iseman’s mistakes in the course of representi n g him constitute ex traordinary circumstances. NotL U N A V

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N A N 12

all attorney mistake s q u a l i fy as a b asis f or equitable tolling

. Courts have h e l d that run-of-the-mill mistakes by one’s lawy er that cause a filing deadline to be missed do not rise to the level of ex traordinary c ircumstan c e s

. S e e, e.g. , Frye v

. Hickm a n , 2 7 3 F. 3 d 1144, 1 146 (9th Cir. 2 001) (miscalculating due date); S andvik v. United States
, 177 F .3d 1269, 1271–72 (11th Cir. 1999) ( filin g by ordinary mail shortly before deadline ex pired). Mistakes of this sort, which
amount to nothing more than “g arden variety ” neg lig e nce, a re d e e med too routine and unremarkable to warrant e quit y ’s intervention. Holland

, 560 U.S. at 651–52. However, acts o r omissions that transcend g arden v ariety neg lig ence and enter the realm o f “professional misconduct” may g ive rise to

ex traordinary circumstances if the misconduct is sufficiently

e gr eg ious. Id. at 651; Spitsyn v. Moore
, 345 F .3d 7 96
, 8 0 0 (9th Cir. 2003). The question h ere is whether W iseman’s actions represent eg reg ious p rofessional misconduct or mere g arden variety

neg lig ence.

L et’s beg i n with W iseman’s decision to dismiss L una’s
pro se petition. B efore W iseman’s appointment, throug h his

own dilig ent e fforts, L una had manag ed to p r o tect himself
ag ainst the risk of m issing AEDPA’s 1-y e ar deadline b y filing a timely petiti o n

. True, a number of the claims L u na alleg ed had not been e x hausted, but W iseman initially avoided the need to d ismiss the petition by securing a stay and abey ance. At that point, L una reasonably e x p e c t ed W iseman to help him c omplete the state-court e x haustion
process as e x peditiously a s p o s s i b l e so that L una’s c laims could be heard on the merits in federal court.

I nstead of advancing h is client’s interests, W isem an affirmatively undermined them by voluntarily d ismissing the
p etition f or no g ood reason. Dismissing the petition mi gh tL U N A V

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have made sense had W iseman been planning to add entirely
new, unrelat e d c l aims, in o rder to avoid AEDPA’s strict limitat i o ns on the f

iling of second or successive p etitions. See 28 U.S.C. § 2244(b). B u t as f ar a s t h e record discloses, W iseman had n o s u c h plans; he dismissed the petition because he believed ( e r r oneously ) that all of L u na’s c laims

were unex h austed. I f, as seems apparent, W iseman planned
to d o n othing more than a mend the petition to add additional facts and leg a l analy sis in s u p p o r t of the claims already alleg ed, there was n o need to di smiss the petition outrig ht. W iseman could h a v e a s k ed for leave to amend the petition later, while preserving the timely filing date o f L u na’s pro se petition. See Nguyen v. Curry
, 736 F .3d 1287, 1297 (9th Cir. 2013); Anthony v

. Cambra

, 2 36 F .3d 568, 576–77 (9th Cir. 2000). D ismissing L

una’s pro se p e tition thus offered no strateg ic benefit and carried a monumental downside risk: I f for whatever reason W iseman failed t o f ile L una’s federal habeas petition within the time allowed, L una would forfeit his rig ht to federal review altog ether.

Voluntarily dismissing a timely federal habea s petition, standing alone, is n ot necessarily eg reg ious professional misconduct. After all, so long a s W iseman had completed the

ex h austion process and refiled L una’s federal petition before AEDPA’s limitations p eriod ex p ired, probably the most one could say is n o harm, no f oul. B ut the actions W iseman took following dismissal compounded the e rror he had already made. Having ex posed his client to the risk of default where

none e x isted before, Wiseman assumed a duty of the hig hest order to e n s u r e t hat he filed a fully ex hausted p etition on L una’s behalf within the time allowed. F ailing to fulfill that duty was bad enoug h. W orse still, in r esponse to an inquiry from L una shortly b efore the statute o f l i mitations ex pired, W iseman misled L una to b elieve t h a t a fully ex haustedL U N A V

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federal habeas petition w ould be file d “shortly .” Had L u na been informed of the truth—that the filing deadline w as three weeks away and that W iseman would not be filing a petition wi t h i n that timeframe—L una could have filed a pro se petition o n his own, as he h a d already done once before, prior to W iseman’s appointment.

A nu mber of circuits, including ours, have h el d that affirmatively misleading a petitioner to believe that a timely petition h as been o r will soon be f ile d can constitute
eg reg ious professional misconduct. Doe v. Busby

, 661 F .3d 1001, 1 0 12 (9th Cir. 2011); Dillon

, 642 F .3d at 363–64; Downs v. McNeil

, 520 F .3d 1311, 1322–23 (11th Cir. 2 008); Fleming v. E

vans , 481 F .3d 1249, 1256–57 (10th Cir. 2 007); United States v. Martin
, 4 0 8 F .3d 1089, 1094–95 (8th Cir. 2005); United States v. W y n n , 292 F .3d 226, 2 3 0 (5th Cir. 2002). Wiseman eng ag ed in precisely such misconduct h ere. B ut the misconduct in this case ex tends b e y o n d an isolated misleading statement. Even after wrong ful l y d ismissing L una’s orig inal pro se petition and the n m i s s i ng the 1-y e ar deadline for filing a n ew petition, W iseman led L u n a t o believe for another six

- plus y ears that litig ation of his federal habeas petition was moving forward, a lbeit slowly

, toward a hearing on the merits. I n t r u t h, however, nothing had been filed in fe d e ra l court and the statute of limitations had long since ex pired.

W iseman’s a c t ions in this case, considered collectively

, go b ey ond mere g arden variety neg lig ence. Attorney mistakes that warrant the label “g arden variety ”—like miscalculating a filing dea d l ine—are the sorts of mistakes
t h a t, reg rettably

, lawy ers make all the time. They a r e mistakes made routinely e n oug h that they ’re reg a rded as o ne

o f the risks petitioners ty pically assume when rely in g o nL U N A V

. K E R

N A N 15

counsel to litig ate a case, rather th a n a s an ex traordinary

c i rcumstance warranting equitable intervention. Courts d o not recog niz e r

u n -of-the-mill mistakes a s g r ounds for equitable tolling because d o ing so “would essentially equitably toll limitatio n s periods for e very person whose attorney missed a d eadline.” Lawrence
, 549 U.S. at 336. No such concerns arise by g r anting equitable tolling on the basis of W iseman’s misconduct. H is act i ons were “utterly deficient and u nprofessional,” Doe
, 661 F .3d at 1 0 1 2
, a nd, unlike run-of-the-mill mistakes, w ere “ far enoug h outside the
rang e o f behavior that reasonably could be ex pected” in the ty pical case that they may be reg arded as “ex t r a o rdinary

. ” Baldayaque v

. U

n i t e d States
, 338 F .3d 145, 152 (2d Cir. 2003).

The State’s most forceful counter-arg ument is that, under traditional ag ency p rinciples, L una shoul d be bound by the actions of his lawy e r, however eg reg ious they may have been. According to the State, a claim for equitable t o l ling may be
pr e dicated on an attorney ’s misconduct only if the misconduct severs the ag e ncy r elationshi p , as in cases o f attorney abandonment. The State acknowledg es that the

cases cited earlier foreclose this arg ument, as they authoriz e equitable tolling based on a rang e of attorney misconduct not limited to abandonment. H owever, the State c ontends that those cases have been o verruled by the Sup r e me Court’s decision in Maples v. Thomas , 132 S. Ct. 912 (2012).

W e d o not share the State’s view, a lt h oug h at least o ne other c ircuit d o es. See Cadet v. Florida D ep’t of Corrections
, 742 F .3d 473, 477–82 (11th Cir. 2014). I n Maples the Court dis c u ssed the ag ency principles the State urg es us to a pply here, but it d id so in the contex t of apply ing the procedural default doctrine, not the equitable tolling doctrine. The CourtL U N A V

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r e affirmed the g eneral rule established in Coleman v. Thompson

, 501 U.S. 7 22 (1991): I f a lawy er’s actions during the course o f the ag ency relationship result in a state-court pr o c edural default, the petitioner is bound by those actions—even if they

are neg lig e nt—and cannot assert them

as “cause” to ex cuse th e d e fault. M aples

, 132 S. Ct. at 922. B y the same token, the Court held, if the lawy er’s actions

occur after the a ge n cy relationship has been severed, a s in

cases o f a ttorney abandonment, the petitioner is not bound b y those a ctions and may assert them as c a u s e t o ex cuse a default. I d

. a t 924. I n a footnote on w hich the State places heav y reliance, the Court appeared to sug g est that the same ag ency principles a lso apply in the equitable tolling contex t. 1 That footnote could be r ead to sug g est that, a bsent some ag ency -severing event such as abandonment, a petitioner will be b ound by his lawy er’s a c t s o r o missions in both the procedural default and equitable tolling contex ts.

I n o ur view, it remains unclear whether the Court intended to hold in Maples that attorne y misconduct falling short of abandonment may no long er serve as a b asis f o r equitable tolling

. W e would be surprised to f ind that holding lurking in a footnote to an opinion ad d r essing an entirely different doctrine, particularly g iven what the Court had said less than two y ears earlier in Holland

. I n that case, the Court appeared to hold that professional misconduct falling short o f abandonment c ould support a claim of equitable tolling

, a s

1 T h e f oo tn o t e read s: “

Ho lla n d v. Flo r id

a , 5 6 0 U.S. — (2 0 1 0 ), in v o lv ed
to llin g o f a f

ed eral tim e bar, w

h i le Co lema n v. Th o mp so n , 50 1 U.S. 7 2 2 (1 9 9 1), co n cern ed

cau se f o r ex cu sin g a p ro ced u ral d ef au lt in state co u rt. W e see n o reaso n , h o w ev er, w h y th e d istin c tio n b etw een atto rn ey

n eg lig en ce an d atto rn ey ab an d o n m en t sh o u ld n ot h o ld in b o th co n tex ts.” Ma p les , 1 3 2 S. Ct. at 9 23 n .7 (citatio n o m itted ).L U N A V

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N A N 17

most c ircuits at the time, including ou r s , had also held. See Holland

, 560 U.S. at 651–52. The Court reje c t e d as “ too rig id” t h e rule applied by the Eleventh Circuit, under which “e v e n a t torney conduct that is ‘g rossly neg lig ent’ c an never warrant tolling absent ‘ bad faith, dishonesty

, divided loy a lty

, mental impairment or so fo r th on the lawy er’s part.’” Id. at 649. The Court held that the Eleventh Circuit’s rule “fails to recog niz e that, at least sometimes, p rofessional misconduct that fail s to meet the Eleventh Circuit’s standard could nonetheless amount to eg reg ious b ehavi o r and create an

ex traordinary circumstance that warrants equitable tolling

. ” Id. at 651. The Court recog niz e d that the rule it was adopting for equitable tol l i n g cases differed from the rule announced in Coleman

, but stated t hat the difference was justified because the p rocedural default doctrine implicates f ederalism concerns absent in the equitable tolling contex t. I

d

. at 650.

Maples d id not ex plicitly overrule Ho l l a n d

, and w e lack the authority to hold that Maples did s o implicitly

. See Agostini v. Felton

, 521 U.S. 203, 237 ( 1 9 9 7 ). As a threejudg e panel, we also lack the authority to declare that our o wn precedent h as been overruled by Maples

, unless our cases a re “clearly irreconcilable” with Maples

. See Miller v. Gammie
, 335 F

. 3d 8 89, 893 ( 9th Cir. 2003) (en banc). That test has not been met here. Our circuit’s equitable toll i n g p recedent tracks the standard t h e C o u rt a dopted in Holland

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

no t e d

, it’s d ecidedly unclear to what ex tent, if any , M aples abrog ated H

olland ’s reasoning on the q u e stion whether attorney misconduct falling s h o r t of abandonment may qualify as an e x traordinary circumstance for equitable tolling
purposes. F or now, then, o u r c a ses holding that eg reg ious

a t t o rn e y misconduct of a ll stripes may serve as a basis for equitable tolling remain g ood law.L U N A V

. K E R

N A N 18

Having c oncluded that W iseman ’ s professional misconduct constitutes an ex traordinary circumstance, we must nex t determine whether that misconduct prevented L u na from f iling 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. B ut for W iseman’s misconduct, L una would have filed his federal h abeas petition on time. W e know that to be true because L una had filed his petition on time before W iseman ever arrived on the scene. W iseman’s misconduct consisted of undoing L

una’s dilig ent work a

n d then misleading L una to believe for six -plus y ears that every thing was proceeding

on t r a c k i n federal c ourt w hen that was n ot the case. Nothing

more need be shown to demonstrate causation in this contex t.

B

The mag istrate judg e did not thoroug hly a naly z e whether L una had dilig ently pursued his rig hts b e cause the judg e concluded that L u n a h a d not shown ex traordinary circumstances. W ith respect to dilig e nce, the mag istrate j udg e stated only that L una “could not have done m o r e t o

ensure a timely filing once h is attorney was appoin t e d

. ” B ecause the mag istrate judg e focused o n the p e r i o d before AEDPA’s 1-y ear statute of limitations ex pire d i n 2005, we

are unable to tell whether he also found t h at L una h ad dilig ently pursued his rig hts after that time. W e cannot make th a t d e t e r mination in the f irst instance (a task w e would be reluctant to undertake in any event g iven the fact-intens i v e nature o f t h e inquiry) because the r ecord is insufficiently developed.

L una contends that the current record e stablis hes reasonable dilig ence bec ause it shows that, throug h out theL U N A V

. K E R

N A N 19

relevant time period

, he remained in r eg ular contact with W iseman and asked for and received updates on the status o f his case. Under some circumstances, communicating with one’s lawy er and rely ing on the lawy er’s assurance s that
every thing is proceeding apace can suffice to demonstrate dilig ence. I n Doe v

. B u s by

, 661 F .3d 1001 (9th Cir. 2011), for e x a m p l e , we held that Doe had shown reasonable dilig ence by continuing to urg e h is a t t o r n ey to file a federal habeas pe t i t ion over a period of three y ears, e ven a fter learning tha t his attorney had blown the orig inal filing deadline. Throug hout that period, the attorney told Doe that

a petition could n ot be filed until ne w e v i dence was discovered b ut assured Doe that the search for such evidence

was ong oing

. Id. a t 1013–14. N othing alert ed Doe that he needed to take furthe r action to protect his rig hts until the attorney abrup t l y resig ned. “ U ntrained in the technicalities of habeas law and incarcerated, Doe w a s i n n o position to question a plausible ex planation for the attorney ’s delay or to

o b s erve the thoroug hness of the attorney ’ s supposedly

o n go i n g investig ation f

or evidence.” Id. at 1014. W e concluded that a reasonable person in the petitioner’s shoes, “if asked about the status of h is or h e r l a w s uit, would be justified in reply ing

, ‘ My lawy er is handling it.’” I d. at 1015.

To establish dilig ence here, L una must show not only that he k ept in t o u ch w ith W iseman, but also that it was reasonable for him to c on t i nue rely ing on W iseman’s

assurances a

bout the prog ress of his c ase. See id

. The record before us contains only three letters from W iseman to L u na after the statute of limitations ex p ired, and we d o n o t have declarations from L una or W iseman describing what

assurances W i s e m a

n may have provided L una d uring that period, whether in writin g o r by telephone. We cannot say whether L una’s relia nce on W iseman was reasonable—orL U N A V

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N A N 20

whether circumstances should have alerted L una earlier that he needed to take a dditional action to protect his rig hts—without know i ng more about the nature of the communications between L una and W iseman over the more than six y ears in question.

Nor can we say , as the State urg es, that the ex isting record conclusively establishes that L una was not dilig ent. W e acknowledg e that the delay invo lved here—more than six
y ears—is c onsiderable. The State contends that, gi v en the leng th of the delay , at some point L una should have realiz ed
t h a t W iseman was taking too long to file and that L u n a therefore needed to take action h imself to protect his r i ghts. Other than the sheer leng th of th e d e l ay , however, we see nothing in the ex isting record to indicate that L una s h o u ld have become aware of the n e e d to take action. There is no indication, for ex ample, that L u na ever l e a rned that W iseman’s misconduct had allowed the AEDPA st a t u t e o f limitations to e x pire. F or all we k no w , W iseman may have assured L una that AEDPA’s time limitations were of no

concern , based on W iseman’s erroneous understanding o f when an amended p etition c ould relate back to an earlier-filed petition. Rely ing on that advice f rom a trained lawy er would be just as reasonable a s rely ing on the a dvice the p etitioner in Doe received from his lawy er, who t o l d D o e that even a concededly blown filing deadline w as of no concern because

a late petition could be fi l ed once they discovered new evidence. Doe
, 661 F .3d at 1013–14. Thus, unless we were prepared to s a y that six -plus y ears is simply too long of a delay in these circumstances—no matter w h a t the

reason—we could n ot rule in the State’s favor without first remanding to the district court for further development of the record. A s w e did in Doe
, w e decline to impose any suchL U N A V

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N A N 21

rig id cut-off based on the “passag e o f t i m e alone.” Id. at 1015.

I I I

W e address one final issue to assist the d istrict co u r t on remand, relating to the time period during which L u n a must show that he ex ercised reasonable dilig ence.

I n Gibbs v. LeGrand

, 767 F. 3 d 8 7 9 (9th Cir. 2014), we adopted the “stop clock” appro a c h t o analy z ing claims for equitable tolling

. Under that approach, the statute-oflimitations clock stops running when ex traordin a r y circumstances first arise, but the clock resumes running once the ex traordinary ci rcumstances h ave ended or when the petitioner ceases to ex ercise reasonable dilig ence, whichever

occurs e arlier. Id

. a t 891–92. I n that sense, the stop-clock approach to equitable tolling works i n m u ch the same way statutory tolling does under 28 U.S.C. § 2244(d)(2): Any period d uring which both ex traordinary cir c u mstances a nd dilig ence are shown does not count toward the s t at u t e o f limitations, just as any period d u r i ng which a properly filed application for state p o st-conviction relief is pending does not count toward the statute o f limitations. See W ood v. Milyard

, 132 S. Ct. 1826, 1831 & n

. 3 (2012). To dete rm ine whether

a petition is timely

, we ask whether it was filed w ithin the 1

- y ear li m i tations period a fter all periods of tolling a re subtracted from the count.

Under a pure stop-clock approach, a petiti o ner needs to show dilig e nce only dur i n g the period he seeks to have tolled— i.e.
, the period d uring w hich the ex traordinary

c i r cumstances prevented timely filing

. There is no n eed to show dilig ence a fter the e x traordinary circumstances h a v eL U N A V

. K E R

N A N 22

ended. T h e c l ock remains stopped for the p eriod during which e x traordinary c ircumstances ex isted and the p etitioner remained dilig ent, and the timeliness of the pe tition is assessed according ly

. That is the rule followed in the Second Circuit, which has adopted the sto p

- clock approach to analy z ing claims for equitable tolling

. See Harper v. Ercole

, 648 F .3d 132, 136–37 (2d Cir. 2011).

One of o ur earlier e quitable tolling p recedents, however, requires a p e t i t i oner to show dilig ence throug h the time o f filing

, e ven after the ex traordinary circumstances have ended. I n Spitsyn v. M

oore , 345 F .3d 7 9 6 (9th Cir. 2003), we h eld that the petitioner had shown ex traordinary circumstances where his attorney , althoug h retained nearly a full y ear ahead of AEDPA’s filing deadline, ig nored all of Spitsy n’s phone calls a nd letters, never filed a petition on Spitsy n’s behalf, and then delay ed returning Spitsy n’s file s u n t il after the

s tatute o f limitations had ex p ired. Id. at 798–99, 8 0 1

. W e remanded for the district court to determine whether Spitsy n had been reasonably dilig ent. I n p articular, w e directed the district c ourt to determine w hether Spit s y n h ad ex ercised reasonable dilig ence during the 174 day s that elapsed between the time Spitsy

n received his files back (the point at which the ex traordinary circumstances ended) and the date Spitsy n file d h i s o wn pro se petition. Id. at 801–02. Under the p ure stop-clock approach, there would have been n o need for this post-ex traordinary circumstances dilig ence inquiry : Once Spits y

n r e c e ived his f

iles back a

nd the clock b eg an ticking ag a in, he would have b e e n e n titled to use whatever time remained left on the clock before filing

.

At some point, o ur circuit may need to decide whether it makes sense to follow the s t o p

- clock a pproach and at the

same time impose a dilig ence-throug h-filing requirement. I fL U N A V

. K E R

N A N 23

the objective o f the stop-clock approach is to g ive petitioners

one full y ear of unobstructed time to prepare a federal h abeas petition, a separate d ilig ence-throug h-filing r equirement
appears to thwart that o b j e ct ive. See Lott v. Mueller

, 304 F

. 3d 9 18, 926–27 (9th C i r. 2 0 02) (McKeown, J
., concurring ). H owever, un d er current circuit law, w e must apply both the dilig ence-throug h-filing requirement imposed by Spitsyn and the stop-clock approach adopted in G ibbs

. To prevail on r emand, then, L una will need to show that he remained dilig ent throug h f iling

— i.e.
, throug h J une 3, 2011. I f he makes that showing

, his p etition w i l l al so be timely under the stop -clock approach. The ex traordinary circumsta n c es spawned by W iseman’s misconduct arose before the statute of l imitations ex pired, and they continued uninterrupted throug h W iseman’s fil i ng of the p etition on J une 3, 2 011. I f L una shows r easonable d ilig ence throug hout that period, the clock will remain stopped throug h the d a te o f filing

, rendering

his petition timely

.

* * *

W e v acate the district court’s judg ment di s m i s sing L una’s federal habeas petitio n a n d r emand for the district court to determine in the first instance, after conducting an evidentiary hearing if necessary , w hether L una dilig ently pursued his rig hts throug h the date of filing

, J u ne 3, 2011. See S o s s a v

. Diaz
, 729 F .3d 1225, 1237 & n.13 (9th Cir. 2013); Spitsyn
, 345 F .3d at 8 02. That determination will dictate whether L una’s petition should be deemed timely

. Costs are awarded to the appellant.

VACATED AND REMANDED.