FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARGARET RUDIN,

Petitioner-Appellant,

v.

CAROLYN MYLES; ATTORNEY

GENERAL OF THE STATE OF NEVADA,

Respondents-Appellees.

No. 12-15362

D.C. No.

2:11-cv-00643-

RLH-GWF

ORDER AND

OPINION

Appeal from the United States District Court

for the District of Nevada

Roger L. Hunt, Senior District Judge, Presiding

Argued and Submitted

February 11, 2014—San Francisco, California

Filed September 10, 2014

Opinion Withdrawn and New Opinion Filed

March 10, 2015

Before: Diarmuid F. O’Scannlain and Mary H. Murguia,

Circuit Judges, and Lynn S. Adelman, District Judge.

*

Order;

Opinion by Judge Murguia;

Concurrence by Judge Adelman;

Dissent by Judge O’Scannlain

* The Honorable Lynn S. Adelman, United States District Judge for the

Eastern District of Wisconsin, sitting by designation.
2 RUDIN V. MYLES

SUMMARY**

Habeas Corpus

The panel withdrew an opinion filed on September 10,

2014, and filed a new opinion reversing 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 18 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 the state post-conviction court’s

finding – at an August 22, 2007, status conference,

immediately upon discovering counsel’s failure to file a

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

been prepared by court staff for the convenience of the reader.
RUDIN V. MYLES 3

post-conviction petition in state court – of “extraordinary

circumstances” that would “extend the one year deadline,”

coupled with the state’s failure to brief the timeliness

question or move to dismiss Rudin’s petition, “affirmatively

misled” Rudin into believing that the state court had excused

her late filing and that her federal limitations period would be

statutorily tolled. The panel explained that until the state

court’s finding was challenged or reversed – that is, as long

as Rudin’s petition was deemed “properly filed” by the state

post-conviction court – Rudin remained entitled to statutory

tolling of the federal clock.

The panel held that Rudin satisfied her burden to show

that she is entitled to equitable tolling of the AEDPA

limitations period until January 20, 2011, when the

extraordinary circumstances making it impossible for her to

file her federal petition on time were removed, giving her

until September 9, 2011, to file her petition for federal habeas

relief in the district court. Because Rudin filed her petition

on April 25, 2011, the panel concluded that her petition was

timely filed.

The panel remanded for further proceedings and denied

the state’s motion to expand the record on appeal.

Concurring, District Judge Adelman wrote that a contrary

result would require the essentially pointless early filing of

federal petitions by prisoners who reasonably believe that

their claims are properly pending, unexhausted, in state

courts.

Dissenting, Judge O’Scannlain wrote that Rudin is not

entitled to equitable tolling beyond the August 22, 2007,

conference because she failed to act with reasonable diligence
4 RUDIN V. MYLES

to protect her rights for the duration of the relevant time

period.

COUNSEL

Christopher Oram, Las Vegas, Nevada, for PetitionerAppellant.

Jamie J. Resch (argued), Senior Deputy Attorney General,

and Catherine Cortez Masto, Attorney General, Office of the

Attorney General, Las Vegas, Nevada, for RespondentsAppellees.

Rene L. Valladares, Federal Public Defender, Megan

Hoffman, Chief, Non-Capital Habeas Unit, Heather Fraley ,

Assistant Federal Public Defender, Las Vegas, Nevada, for

Amicus Curiae Federal Public Defender for the District of

Nevada.

ORDER

The opinion filed on September 10, 2014, and appearing

at 766 F.3d 1161, is withdrawn. The superseding opinion

will be filed concurrently with this order. The parties may

file additional petitions for rehearing or rehearing en banc.
RUDIN V. MYLES 5

OPINION

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, 634 (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 that she is entitled to

equitable tolling sufficient to excuse her delay. We therefore

reverse the district court’s order dismissing Rudin’s

application as untimely.

I. FACTS

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, 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
6 RUDIN V. MYLES

Lake Mojave a few years earlier. See Rudin v. State, 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
RUDIN V. MYLES 7

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.’ ”1 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, 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 588.2 The Nevada Supreme Court’s remittitur issued on

1 By the time Rudin’s trial ended, the court had actually appointed a

third attorney, John Momot, to assist with the defense. Rudin, 86 P.3d at

580.

 

2

 Two of the six justices dissented. They concluded that

there is sufficient evidence in the record, without the

necessity of post-trial proceedings, to establish that the

defense was totally unprepared to try this case and that

Amador had a substantial conflict of interest with his
8 RUDIN V. MYLES

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, 2004.3

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:

client. This was prejudicial to Rudin, and the result

reached was unreliable.

Rudin, 86 P.3d at 595 (Rose, J., dissenting).

3 Rudin had ninety days from the date of the Nevada Supreme Court’s

decision, which was issued on April 1, 2004, to petition for a writ of

certiorari. Sup. Ct. R. 13(3).
RUDIN V. MYLES 9

(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
10 RUDIN V. MYLES

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 postconviction 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
RUDIN V. MYLES 11

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.4 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.5 Two weeks later, on November 24, 2004, the court

issued an order to that effect.6

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

4 We assume that the state court was required, under Nevada Rule of

Appellate Procedure 46(d)(3)(C), to wait to set a hearing date until after

Rudin had filed her pro per motion for appointment of post-conviction

counsel. Under that rule, in a post-conviction appeal, an attorney’s motion

to withdraw as counsel “shall be accompanied by . . . a motion by

defendant to proceed in proper person or with substitute counsel.”

5 The record is not clear as to the reason, if any, that the post-conviction

court delayed four months in hearing Rudin’s pro per motion for

appointment of post-conviction counsel. Cf. Nev. Rev. Stat. §§ 34.740

(requiring “expeditious judicial examination” of petitions for postconviction relief); 34.726 (limiting the period for filing a petition to one

year). In the district court, Rudin argued in passing that the state court’s

four-month delay was “unnecessarily long” and was a part of the

“extraordinary circumstances” that gave rise to her filing delay. She does

not renew that argument on appeal.

 

6

 We take November 10, 2004, not November 24, 2004, as the date on

which Figler’s representation commenced.
12 RUDIN V. MYLES

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.”7

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.8

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 in state court herself,

the post-conviction court rejected that effort because the local

7 Rule 3.70 of the Rules of Practice for the Eighth Judicial District Court

of the State of Nevada provides that papers “delivered to the clerk of the

court by a defendant who has counsel of record will not be filed [but will

be] forwarded to that attorney for such consideration as counsel deems

appropriate.”

 

8

Judge Bonaventure recused himself as a result of personal biases that

he had against Rudin’s previous appellate counsel, Craig Creel. See Matt

Pordum, Bonaventure Won’t HearRudinAppeal, Las Vegas Sun, Dec. 28,

2004, http://www.lasvegassun.com/news/2004/dec/28/bonaventure-wonthear-rudin-appeal/ (“ ‘My blood boils every time I hear the name Craig

Creel. . . . Whether I look at him or think of him, my blood boils. I’m

getting a headache thinking of him right now.’ ” (quoting Bonaventure,

J.)).
RUDIN V. MYLES 13

rules prohibited Rudin from doing so when she had “counsel

of record.”

* * * * *

The record suggests that, after Rudin’s case was

reassigned (and perhaps as a result of that reassignment),

substantial confusion arose between the parties and the court

about whether Rudin had already filed a petition for postconviction relief. On January 5, 2005, for example, the state

court held a status hearing on Rudin’s “opening brief.” The

court’s use of the term “opening brief” suggested that the

parties and the court believed that Rudin’s initial petition for

post-conviction relief had been filed but that Rudin had yet to

file a brief in support of that petition. See Nev. Rev. Stat.

§ 34.735 (establishing the form of a petition). At the same

status hearing, the court granted Figler a continuance,

extending his time to file the “brief” and setting a second

status hearing for July 13, 2005. At the July 13th status

hearing, Figler again requested “an additional 90 days to file

his brief,” which the court granted the following week. By

that date, both of Petitioner’s one-year limitations periods for

filing her requests for collateral relief had run. But nobody—

neither Figler, nor the State, nor the court—recognized that

to have occurred. On January 18, 2006, the post-conviction

court again granted Figler an additional “45 days in which to

file his opening brief due to the voluminous record in this

case.” The State would later confirm that, at that time, the

State and the court were “under the mistaken impression” that

a petition had already been filed.

Meanwhile, Rudin became concerned—and we believe

rightfully so—that Figler was not adequately representing her

in her collateral review proceedings. According to Rudin, at
14 RUDIN V. MYLES

some point in 2005, she requested that Figler provide her with

copies of her file. Figler did not immediately respond. Figler

visited Rudin only a handful of times that year, but he did not

interview the witnesses she identified, and he never informed

her that he had requested a series of continuances on the basis

of the “complexity” of her case. Figler last visited Rudin in

May 2006, which was the first time in almost a year that he

had done so.

In November 2005, Rudin began to gather information in

support of her soon-to-be-filed motion to substitute counsel. 

First, she submitted an Inmate Request Form to the prison

staff asking for a summary of the attorney visits she had

received that past year. In a response dated a few weeks later,

the staff informed her that she had received four visits in

2005, occurring on January 4, February 7, February 25, and

June 17. In January 2006, after multiple failed attempts to

contact Figler, Rudin submitted a second Inmate Request

Form notifying prison staff that she had “not been able to call

[her] attorneysince [December 15, 2005]” and requesting that

the staff fix the problem, which she was concerned was “at

this facility.” Three weeks later, the prison staff responded,

informing Rudin that Figler had a collect call block on his

office phone and that Rudin would need to send a letter to

Figler requesting that the block be removed. At the same

time, Rudin’s friend, who was not in prison, “repeatedly . . .

requested [that Figler] visit [Rudin]; have the telephone block

removed; not postpone [Rudin’s] post conviction brief filing;

and send her a copy of the opening brief,” all to no avail.

Figler never filed anything with the state post-conviction

court. On April 5, 2006, 511 days after Figler was appointed,

Rudin moved to substitute counsel. In her motion, she

described Figler’s inadequacies and expressed her “grea[t]
RUDIN V. MYLES 15

concer[n]that she [was] not receiving adequate representation

regarding her post conviction.” At a hearing on July 17,

2006, the court granted her motion and, at the same time,

appointed attorney Christopher Oram, who continues to

represent Rudin on appeal, to represent her.9 The court filed

an order to that effect on August 17, 2006.

To summarize the facts leading up to this point: By

August 17, 2006, the day that Figler was relieved from his

duties to represent Rudin, almost two years had passed since

the day he was appointed to represent her. Early on in the

course ofFigler’s representation, Rudin’s case was reassigned

to a new judge, who granted at least three of Figler’s requests

for additional time to file an “opening brief.” At no point did

the court ever mention the one-year limitations period under

Nevada state law, and at no point did the State raise

timeliness concerns. And while Figler regularly attended the

court’s status hearings, he appears to have done nothing else

in support of his client’s request for post-conviction relief. 

Indeed, after June 2005, Figler stopped communicating with

his client altogether, by declining to visit her in prison and by

placing a collect call block on his office telephone. When

Figler’s representation ended, 842 days had passed since the

day Rudin’s one-year state limitations period began to run,

and 778 days had passed since the day her one-year AEDPA

limitations period began to run. Of those days, 645 and 581,

respectively, had run under Figler’s watch. And during that

time, Figler had filed nothing in either state or federal court.

9 Attached to Petitioner’s motion to substitute counsel was what she

called a “brief opening supplement,” presumably to her petition for postconviction relief. When the post-conviction court ruled on her motion,

however, it appears to have construed the filing solely as a motion to

substitute counsel, not as a petition for post-conviction relief.
16 RUDIN V. MYLES

2. Attorney Christopher Oram’s Representation

Oram’s representation began on August 17, 2006,10and

has continued through the course of this appeal. Oram finally

filed a post-conviction petition in state court on August 21,

2007. Prior submissions or references to Rudin’s “opening

brief” notwithstanding, Oram’s August 21, 2007, submission

appears to have been the first and only petition for postconviction relief filed in the state court. It was filed three

years and 116 days after the state-law statute of limitations

began to run—or 846 days too late.

A colloquy between Oram, the post-conviction court, and

the State at a status conference on August 22, 2007,

demonstrates that, even at that late date, the parties were still

confused as to whether a petition for post-conviction relief

had actually been filed. Oram initially raised the issue by

suggesting that he re-label his most recent filing as a petition

for “a writ of habeas corpus” as opposed to a “supplement.” 

The post-conviction court agreed and proceeded to find

“extraordinary circumstances” to excuse the delay in filing:

11

MR. ORAM: [M]y fear is, as I look at the

statute, that – um – the one year deadline to

file, I looked at it and it said that – uh – the

court can excuse it, and can delay the process,

10 We consider Figler’s representation to have extended until the date on

which the court entered its order substituting counsel, which was August

17, 2006.

11 We assume that the post-conviction court’s reference to “extraordinary

circumstances” is equivalent to, or was intended to mean, “good cause,”

which is the standard to excuse a filing delay under Nevada Revised

Statute section 34.726.
RUDIN V. MYLES 17

which I assume was going on while Mr. Figler

was going through this. But perhaps I should

relabel the petition for writ of habeas corpus. 

I may need to amend it today, just to say

where she’s located, because that’s what the

statute requires.

THE COURT: Okay. I may say you

should probably do that. Just do that as like a

one page sheet, like an errata to your deal.

MR. ORAM: Yes.

THE COURT: And the court will find, as

a matter of finding today, that [your] filing of

the writ for post-conviction relief is timely,

based upon – um – the fact that – uh – Mr.

Figler had the case for so many years. I

believe it was years.

MR. ORAM: It was two years. Yes, it was

two years.

THE COURT: It was two years, and filed

nothing, even though we kept having status

checks. So – um – we’re going to find that it

was timely filed.

. . . .

Um – and it was an extensive trial. Didn’t it

take several weeks?

MR. ORAM: Ten weeks.
18 RUDIN V. MYLES

. . . .

THE COURT: Ten week trial. So that

would be the extraordinary circumstance that

we would find would allow the petition for

post-conviction relief be filed. That, plus the

fact that the first attorney didn’t do anything.

At that point, and for the very first time in two years, the

State became aware that no petition had been filed and

decided to speak up:

[THE STATE]: I think, Judge, that sets a

bad precedent, in light of the fact that we can

get multiple attorneys, and every attorney that

gets this says, well, he had it too long, he had

it too long. We’d like to at least address that,

before you make that finding.

The post-conviction court obliged, declining to make a

finding until the State had the opportunity to address the issue

in further briefing. It noted, however, that “I really think that

the court is going to find, not only this court, but the next

court, is going to find that there were extraordinary

circumstances in this case, which would allow the court to

extend the one year deadline.” The State never did brief the

timeliness question, nor did it ever move to dismiss Rudin’s

petition.

On December 19, 2008, the post-conviction court held a

hearing to consider the merits of Rudin’s petition for relief. 

At that hearing, the court questioned whether “the defense . . .

start[ed] out so far behind the starting line of this trial that no

matter how much time the [c]ourt gave them during the trial
RUDIN V. MYLES 19

. . . it ultimately [was] an unfair trial.” The post-conviction

court went on to state,

And there’s two standards for Strickland:

[12]

One is was counsel effective, and then the

second standard is even if counsel wasn’t

effective was the evidence so overwhelming

. . . against the defendant [that] it wouldn’t

make any difference who defended her and

how prepared they were and how many

experts they called because the decision

would always be guilty of murder.

In this case I can’t say that that is true. I

didn’t try the case, but in reviewing the writ

filed by Mr. Oram and reviewing the response

by the State, and I had commented on the

22nd of October that the case was full of a

cast of characters together with witnesses, and

the case had a lot of intrigue and spins and

loops, and there was a lot of ulterior motives

on people who testified.

. . . .

The experts couldn’t agree on much of

anything in this case as I read the dry record. 

The proof of guilt was not a slam dunk by any

stretch of the imagination for the State, so I

can’t say – I cannot say in this case that no

matter who had defended her that the verdict

would have been the same.

 

12 Strickland v. Washington, 466 U.S. 668 (1984).
20 RUDIN V. MYLES

After hearing testimony from defense attorneys Pitaro and

Momot, the court granted Rudin’s request for post-conviction

relief and ordered her a new trial. The post-conviction court

described Rudin’s prior trial as a “mockery of our promise to

people who are in the criminal justice system that they will

have an adequate defense.”

The State appealed, arguing for the first time on appeal

that Rudin’s petition was untimely. In its brief, the State

confirmed what we think is suggested by the record: that “the

prosecution and the judge were under the mistaken

impression that an initial petition had been timely filed.”

The Nevada Supreme Court reversed the post-conviction

court’s judgment. It concluded that neither of that court’s

stated reasons for excusing Rudin’s delay “affords a factual

or legal basis to find that Rudin’s claims were not reasonably

available to be raised in a timely manner.” Rudin sought en

banc reconsideration, which the Nevada Supreme Court

denied on January 20, 2011. It was only after the Nevada

Supreme Court denied en banc reconsideration of Rudin’s

state post-conviction appeal that Oram filed an application for

habeas relief in federal court.

* * * * *

On April 25, 2011, Rudin, still represented by Oram,

applied for habeas relief in federal court. By that time,

almost seven years had passed since the deadline for seeking

a writ of certiorari from the U.S. Supreme Court, see

28 U.S.C. § 2244(d)(1)(A), making her application almost six

years too late under AEDPA. In her application, Rudin

contended that the Nevada Supreme Court erred in finding

her state-court petition for post-conviction relief time-barred
RUDIN V. MYLES 21

because either (1) the petition was timely, or (2) the State had

waived any argument to the contrary when it failed to make

a timeliness argument before taking its appeal. For those

reasons, according to Rudin, the federal district court should

have considered her state-court petition to be “properly filed”

and given her the benefit of statutory tolling of the AEDPA

limitations period. See 28 U.S.C. § 2244(d)(2). In the

alternative, Rudin argued that equitable tolling pursuant to

Holland v. Florida, 560 U.S. 631 (2010), also applied to her

case. The district court granted the State’s motion to dismiss,

dismissed Rudin’s petition with prejudice, and denied the

certificate of appealability. On October 24, 2012, we granted

Rudin’s request for a certificate of appealability on the

question “whether the district court properly determined that

the petition was barred by the statute of limitations.” We turn

now to that question.

II. DISCUSSION

We review de novo the question whether a petitioner’s

application for federal habeas relief was timely filed. Noble

v. Adams, 676 F.3d 1180, 1181 (9th Cir. 2012). We also

review de novo the question whether AEDPA’s statute of

limitations should be tolled. See Spitsyn v. Moore, 345 F.3d

796, 799 (9th Cir. 2003). Unless the facts are undisputed, we

review the district court’s findings of fact underlying a claim

for equitable tolling for clear error. Stancle v. Clay, 692 F.3d

948, 953 (9th Cir. 2012). The petitioner bears the burden to

establish that she is entitled to tolling of the AEDPA

limitations period. Id.
22 RUDIN V. MYLES

A. Statutory Tolling

We begin with Rudin’s argument that she is entitled to

statutory tolling of the AEDPA limitations period. On this

point, Rudin appears to argue that the Nevada Supreme Court

erred when it found her state post-conviction petition

untimely, and that had it not so erred, her petition would be

considered “properly filed” under 28 U.S.C. § 2244(d)(2),

entitling her to statutory tolling of the AEDPA limitations

period.13

13

In Coleman v. Thompson, 501 U.S. 722, 755 (1991), the Court noted

that a habeas petitioner may have a constitutional right to the assistance

of effective counselin collateral proceedings, where state collateral review

is the first place a prisoner can present an ineffective assistance claim. See

id.; see also Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012) (“Coleman

v. Thompson left open . . . a question of constitutional law: whether a

prisoner has a right to effective counsel in collateral proceedings which

provide the first occasion to raise a claim of ineffective assistance at

trial.”). But see Buenrostro v. United States, 697 F.3d 1137, 1139–40 (9th

Cir. 2012) (“Martinez did not decide a new rule of constitutional law.”). 

Rudin does not explicitly articulate a claim for ineffective assistance of

her state post-conviction relief counsel, but we notice that this claim

nonetheless pervades her claim for equitable tolling. Assuming arguendo

that Rudin had stated such a claim, and that this Court were to recognize

the constitutional right left open by Coleman and acknowledged by

Martinez, Rudin may have qualified for statutory tolling under 28 U.S.C.

§ 2244(d)(1)(D).

To state a claim for ineffective assistance of counsel, a habeas

petitioner must show both (1) deficient performance, and (2) stemming

from that deficient performance. Strickland, 466 U.S. at 687. Here,

although Rudin learned of Figler’s deficient performance by August 22,

2007 at the latest, she was not prejudiced by his deficient performance

until January 20, 2011, when the Nevada Supreme Court declined to toll

the time of Figler’s abandonment and barred Rudin’s state petition as

untimely. Accordingly, “the factual predicate” of her claimfor ineffective

assistance of post-conviction relief counsel could not have been
RUDIN V. MYLES 23

While we may not have made the same decision as the

Nevada Supreme Court, we are not at liberty to second guess

that court’s decision when it was acting on direct appeal of

the state post-conviction court’s judgment. The state supreme

court concluded that Rudin’s petition was untimely under

state law, and “[w]hen a postconviction petition is untimely

under state law, that [is] the end of the matter for purposes of

§ 2244(d)(2).” Pace v. DiGuglielmo, 544 U.S. 408, 414

(2005) (internal quotation marks omitted) (second alteration

in original); accord Zepeda v. Walker, 581 F.3d 1013, 1018

(9th Cir. 2009). In light of Pace, and because the Nevada

Supreme Court is the final arbiter of Nevada state law, that is

the end of the matter here. Rudin is not entitled to statutory

tolling under § 2244(d)(2) for the duration of her state postconviction proceedings.14

B. Equitable Tolling

We turn, therefore, to Rudin’s argument that she is

entitled to equitable tolling under Holland v. Florida. A

petitioner is entitled to equitable tolling if she can establish

that (1) she was pursuing her rights diligently, but (2) some

discovered until January 20, 2011, 28 U.S.C. § 2244(d)(1)(D), and the

statutory limitations period for that claim would not have begun to run

until that date. See Hasan v. Galaza, 254 F.3d 1150, 1154–55 (9th Cir.

2001).

14 We likewise reject Rudin’s argument that she can claim the benefit of

equitable tolling in state court, thereby entitling her to statutory tolling in

federal court. Equitable tolling under Holland v. Florida is a federal

doctrine entirely separate from state law. See 560 U.S. at 650 (“Equitable

tolling [is] an inquiry that does not implicate a state court’s interpretation

of state law.”); see also Coleman, 501 U.S. at 732 (applying the

independent and adequate state ground doctrine to the habeas context).
24 RUDIN V. MYLES

extraordinary circumstance stood in her way. Pace, 544 U.S.

at 418; Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013)

(“[E]quitable tolling is available ‘only when extraordinary

circumstances beyond a prisoner’s control make it impossible

to file a petition on time and the extraordinary circumstances

were the cause of [the prisoner’s] untimeliness.’ ” (second

alteration in original) (quoting Bills v. Clark, 628 F.3d 1092,

1097 (9th Cir. 2010)). Rudin bears a heavy burden to show

that she is entitled to equitable tolling, “lest the exceptions

swallow the rule,” Bills, 628 F.3d at 1097 (internal quotation

marks omitted); however, the grounds for granting equitable

tolling are also highly fact-dependent, Sossa, 729 F.3d at

1229. At bottom, the purpose of equitable tolling is to

“soften the harsh impact of technical rules which might

otherwise prevent a good faith litigant from having [her] day

in court.” United States v. Buckles, 647 F.3d 883, 891 (9th

Cir. 2011) (internal quotation marks omitted); see also

Holland, 560 U.S. at 650 (“[W]e have followed a tradition in

which courts of equity have sought to ‘relieve hardships

which, from time to time, arise from a hard and fast

adherence’ to more absolute legal rules, which, if strictly

applied, threaten the ‘evils of archaic rigidity.’ ” (quoting

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238,

248 (1944))).

In Holland, the Supreme Court held that AEDPA’s

limitations period may be tolled for equitable reasons. 

560 U.S. at 649. In that case, the petitioner’s attorney had

failed to file a timely application despite the petitioner’s

repeated requests to do so, failed to inform the petitioner

about crucial facts related to his case, and failed to

communicate altogether with his client over a period of

several years. Id. at 2564. The Supreme Court found those

circumstances to constitute more than a “garden variety claim
RUDIN V. MYLES 25

of excusable neglect,” and instead concluded that the

attorney’s egregious misconduct amounted to, in essence,

abandonment. Id.; id. at 2568 (Alito, J., concurring); see also

Maples v. Thomas, 132 S. Ct. 912, 923–24 (2012) (adopting

Justice Alito’s reasoning in Holland addressing attorney

abandonment).15 Because of that abandonment, the

petitioner’s delay could be deemed to result from misconduct

that could not constructively be attributed to him, and

therefore the AEDPA limitations period could potentially be

tolled for the relevant period of time. Holland, 560 U.S. at

652–53.

To be entitled to equitable tolling of the AEDPA

limitations period, Rudin thus bears the burden to prove that

she has been pursuing her rights diligently but that

extraordinarycircumstances made it impossible for her to file

her application on time. See Pace, 544 U.S. at 418. Under

Holland, attorney abandonment may give rise to such

extraordinary circumstances. 560 U.S. at 652–53. “The

diligence required for equitable tolling purposes is

‘reasonable diligence,’ not ‘maximum feasible diligence.’ ” 

Id. at 2565 (citations and second and third internal quotation

marks omitted). We readily conclude that extraordinary

circumstances in part gave rise to Rudin’s delay in filing her

application for federal habeas relief.

15 Mere negligence on the part of a prisoner’s post-conviction counsel

does not warrant equitable tolling. Holland, 560 U.S. at 651–52. “That

is so . . . because the attorney is the prisoner’s agent, and under ‘wellsettled principles of agency law,’ the principal bears the risk of negligent

conduct on the part of his agent.” Maples, 132 S. Ct. at 922 (quoting

Coleman, 501 U.S. at 753–54). But when an attorney abandons his client,

the principal-agent relationship is severed, and the attorney’s “acts or

omissions therefore ‘cannot fairly be attributed to [the client].’ ” Id. at

923 (alteration in original) (quoting Coleman, 501 U.S. at 753).
26 RUDIN V. MYLES

1. July 1, 2004, Through November 10, 2004

Between July 1, 2004, the day the AEDPA limitation

period began to run, and November 10, 2004, the day that

Figler was appointed to represent Rudin, Rudin was not

represented by counsel. During that time, Rudin cannot

establish that “extraordinary circumstances” existed to

equitably toll the AEDPA limitation period. See Roy v.

Lampert, 465 F.3d 964, 970 (9th Cir. 2006) (“[P]ro se status,

on its own, is not enough to warrant equitable tolling.”). 

Thus, during that time, 133 non-tolled days passed on

Rudin’s AEDPA clock.

2. November 10, 2004, Through August 22, 2007

On November 10, 2004, Figler was appointed to represent

Rudin in her collateral review proceedings.16 After Figler

was appointed, however, he abandoned her. Over the course

of his period of representation, Figler visited Rudin in prison

only a handful of times, and by mid-2005, those visits had

stopped. He had a collect call block placed on his office

phone, making him all but impossible to reach. And while

we acknowledge that Figler physically attended the postconviction court’s status hearings, the record makes clear that

he did so with seemingly no intention to actually represent his

client. All the while, Figler failed to inform Rudin of the

reasons for his delay, providing her no clue of “any need to

protect [herself] pro se.” See Maples, 132 S. Ct. at 917. On

the record before us, it does not appear that anyone was

16 It is significant that Figler’s representation commenced before June

30, 2005—the last day of Rudin’s AEDPA limitation period. That is so

because extraordinary circumstances cannot toll a statute of limitations

that has already run.
RUDIN V. MYLES 27

aware of Rudin’s need to protect herself until at least

August 22, 2007. We therefore conclude that extraordinary

circumstances prevented Rudin from filing her application

for federal habeas relief between November 10, 2004, and

August 22, 2007.

Rudin was also diligent in pursuing her rights during that

time, beginning with her attempt to file pro per a petition for

post-conviction relief on November 10, 2004. Over the

course of Figler’s representation, Rudin made repeated

attempts to contact him, provided him with witness

information relevant to her case, and requested that he

provide her with copies of her files so that she could take

additional steps on her own behalf. When Figler repeatedly

failed to respond, Rudin prepared and filed her own motion

to substitute counsel, which had a “brief opening supplement”

attached to it. Until she filed that motion, Rudin had done

everything short of filing her own “opening brief,” which, as

the state court had already made clear, the local rules

prohibited her from doing. We conclude that Rudin was

“reasonably diligent” during the period of Figler’s

representation, which is all that is required for equitable

tolling purposes. See Holland, 560 U.S. at 653–54.

Rudin is therefore entitled to equitable tolling of the

AEDPA statute of limitations during the time in which Figler

was representing her and up until the point at which Oram

became aware that Figler had never filed anything on Rudin’s
28 RUDIN V. MYLES

behalf.17 That period of time ran from November 10, 2004,

to August 22, 2007.

The State argues that Rudin cannot avail herself of the

benefit of equitable tolling during that time because Figler

represented Rudin only in state court, not in federal court. On

that point, the State contends that Figler’s inadequacies in

state court had no bearing on Rudin’s ability to file a timely

federal application for relief. It argues that, pursuant to Pace,

Rudin should have filed a “protective” application in federal

court and asked the court to stay and abey its habeas

proceedings while she exhausted her state-court remedies. 

544 U.S. at 416 (“A prisoner seeking state postconviction

relief [may file] a ‘protective’ petition in federal court and

as[k] the federal court to stay and abey the federal habeas

proceedings until state remedies are exhausted.”). Under the

specific circumstances of this case, we are not persuaded by

the State’s argument. See Holland, 560 U.S. at 632

(“[S]pecific circumstances . . . could warrant special

treatment in an appropriate case.”).

For all Rudin knew—and, indeed, until August 22, 2007,

for all the State knew—Rudin’s state-court petition had

already been filed, making her eligible for statutory tolling

under § 2244(d)(2). During the period that Figler had

represented her, almost every reference to the pending filing

was to an “opening” or “supplemental brief,” suggesting that

the court had already received her initial petition. Even the

State concedes that it believed that to be the case. During the

17 Regrettably, this Court has become familiar with Figler’s repeated

abandonment of his habeas clients. See, e.g., Gibbs v. LeGrand, 767 F.3d

879, 888 n.7 (9th Cir. 2014) (“Figler’s abandonment of both Gibbs and

Rudin is deeply troubling, to say the least.”).
RUDIN V. MYLES 29

period in which Rudin “lacked a clue” of any need to protect

herself, we decline to impute to her knowledge that neither

the State nor the court possessed. See Lott v. Mueller,

304 F.3d 918, 923 (9th Cir. 2002) (declining to impute to a

petitioner knowledge that, “[e]ven with the benefit of legal

training, ready access to legal materials and the aid of four

years of additional case law, . . . evaded both [petitioner’s]

appointed counsel and the expertise of a federal magistrate

judge”).18

 

18 The State filed a motion in this court to expand the record on appeal

to include various state-court documents that it had not, for whatever

reason, made a part of the record in the district court. As a general rule,

documents not filed with the district court cannot be made part of the

record on appeal. See Fed. R. App. P. 10(a) (“[T]he original papers and

exhibits filed in the district court; the transcript of proceedings, if any; and

a certified copy of the docket entries prepared by the district clerk . . .

constitute the record on appeal.”); Kirschner v. Uniden Corp. of Am.,

842 F.2d 1074, 1077 (9th Cir. 1988). There are of course narrow

exceptions to that general rule, which we may, in our discretion and in

“unusual circumstances,” invoke. Lowry v. Barnhart, 329 F.3d 1019,

1024–25 (9th Cir. 2003) (listing exceptions).

The State offers no compelling reason for its failure to make these

documents part of the record in the district court. Ironically, the reasons

it offers for doing so are the same reasons to which it objected when the

state post-conviction court found that Rudin had established good cause

for her filing delay: that “this is not a typical case,” that “Rudin’s trial was

one of the longest in Nevada history,” and that, overall, the proceedings

below were complex.

We do not need the documents that the State seeks to make part of the

record on appeal in order to decide this case. Thus, we decline to depart

from our general rule. The State’s motion to expand the record on appeal

is DENIED.
30 RUDIN V. MYLES

3. August 23, 2007, Through January 20, 2011

On August 22, 2007, at the status conference in the state

post-conviction court, the parties first became aware of the

fact that Figler had never filed a post-conviction petition in

state court. From that point forward, Rudin was put on notice

of the fact that nothing had been “properly filed” in either

state or federal court on her behalf. However, immediately

upon discovering Figler’s failure to file, the post-conviction

court found “extraordinary circumstances” that would

“extend the one year deadline.”

This finding, coupled with the state’s failure to brief the

timeliness question or move to dismiss Rudin’s petition,

“affirmatively misled” Rudin into believing that the state

court had excused her late filing and that her federal

limitations period would be statutorily tolled. See Sossa,

729 F.3d at 1232 (citing Pliler v. Ford, 542 U.S. 225, 234

(2004)). In Sossa, we held that where a petitioner was

affirmativelymisled to believe that her limitations period was

being tolled under the statute, this inaccuracy could entitle

her to equitable tolling. See id. at 1232–35. Similarly here,

the state court’s finding of “extraordinary circumstances” led

Rudin to believe that her limitations period would be

statutorily tolled. By excusing Rudin’s delay in state court,

the state post-conviction court conveyed that Rudin’s state

petition was “properly filed” and, by extension, that her time

to file a federal petition would be extended under the statute. 

See id. as 1233.19 Until the state court’s finding was

 

19 Contrary to the dissent, that Sossa considered the inaccuracy of

a federal magistrate judge’s instructions, rather than a state court judge’s

instructions, is immaterial. Sossa does not limit its reasoning to actions

by federal forums. See id. at 1235 (reasoning that the state bears
RUDIN V. MYLES 31

challenged or reversed—that is, as long as Rudin’s petition

was deemed “properly filed” by the state post-conviction

court—Rudin remained entitled to statutory tolling of the

federal clock. See 28 U.S.C. § 2244(d)(2).

Under Sossa, therefore, the inaccuracy of a state postconviction court’s extension of time may constitute an

“extraordinary circumstance” making it “impossible” to file

a petition on time, see Gibbs, 767 F.3d at 888 n.8 (citation

omitted) (internal quotation marks omitted). Reasonable

diligence did not require Rudin to foresee the error in the

post-conviction court’s timeliness ruling—especially where,

as here, the state acquiesced in the extension of time. See

Gibbs, 767 F.3d at 890–91 (To expect a petitioner to file a

federal petition while her state proceedings are still pending

“improperly raises the standard from ‘reasonable’ to

‘maximum feasible’ diligence.” (quoting Holland, 560 U.S.

at 653)).

responsibility for objecting to extensions of time, lest it “lie in wait . . .

and only thereafter oppose a petition as untimely”); see also Pliler

542 U.S. at 235 (O’Connor, J., concurring) (providing the fifth vote for the

majority and stating that “if the petitioner is affirmatively misled, either

by the court or by the State, equitable tolling might well be appropriate”

(emphasis added)). Sossa’s reasoning is explicitly intended to protect

habeas petitioners who are “affirmatively misled,” by courts or

prosecutors, into believing their petitions have been timely filed.

Similarly, that Sossa dealt with the inaccurate extension of a federal

limitations period, rather than a state limitations period, is also immaterial. 

Because the federal limitations period is automatically extended by a

“properly filed” state limitations period, 28 U.S.C. § 2244(d)(2), a federal

habeas petitioner may be entitled to equitable tolling where, as here, a

state court erroneously extends the state limitations period and, by

extension, the federal statutory limitations period.
32 RUDIN V. MYLES

The post-conviction court’s timeliness finding was

integrated into a final adjudication on December 31, 2008,

when the state post-conviction relief court issued an order

granting Rudin’s state habeas petition. Rudin therefore

continued to benefit from the post-conviction court’s finding

of “extraordinary circumstances” until the Nevada Supreme

Court reversed the grant of habeas relief on January 20, 2011.

Following the post-conviction court’s initial finding of

extraordinary circumstances, Rudin diligently pursued her

then-“properly filed” state petition, and pursued her rights in

federal court promptly after her state post-conviction

proceedings were no longer pending. See 28 U.S.C.

§ 2244(d)(2). Unlike the petitioner in Pace, 544 U.S. at

410–11, who waited over seven years after the first state court

decision found his petition untimely, Rudin waited only three

months after the Nevada Supreme Court denied her

relief—from January 20 to April 25, 2011—before filing her

federal petition. Rudin’s failure to file a protective petition

in federal court before her state petition was deemed

untimely, in reliance first on the state post-conviction court’s

timeliness finding and later on that court’s grant of relief, did

not undermine Rudin’s diligent pursuit of her rights. See

Sossa, 729 F.3d at 1229, 1237 (holding petitioner entitled to

equitable tolling where he reasonably relied on a magistrate

judge’s orders extending his habeas filing deadline).

To the contrary, once the state post-conviction relief court

excused Rudin’s delay and deemed her petition “properly

filed,” Rudin remained entitled to statutory tolling in federal

court. See Pace, 544 U.S. at 417. What’s more, once the

state post-conviction relief court granted Rudin’s petition for

habeas relief, Rudin could not have filed a protective federal

habeas petition that would have been ripe for review. 
RUDIN V. MYLES 33

Because Rudin prevailed in the state post-conviction court,

she had no adverse ruling to challenge in a federal petition. 

Until the Nevada Supreme Court ruled, Rudin could not have

known whether she would even need the intervention of the

federal courts. Further federal proceedings would have been

unnecessary unless and until the Nevada Supreme Court

reversed the grant of relief. Unlike Pace, where the state

courts repeatedly and consistently found petitioner’s filings

untimely, Pace, 544 U.S. at 410–11, no state court found

Rudin’s petition untimely until the Nevada Supreme Court

entered judgment in January 2011. To require Rudin to have

anticipated the Nevada Supreme Court’s reversal by filing a

protective petition in federal court would undermine the state

post-conviction relief court’s authority and would hold Rudin

to a standard higher than reasonable diligence. See Holland,

560 U.S. at 653; see also Gibbs, 767 F.3d at 890–91.

* * * * *

In sum, we conclude that Rudin has satisfied her burden

to show that she is entitled to equitable tolling of the AEDPA

limitations period until January 20, 2011, when the

extraordinary circumstances making it impossible for her to

file her federal petition on time were removed. See Sossa,

729 F.3d at 1229. After that date, AEDPA’s one-year

limitations period resumed, giving Rudin until September 9,

2011 to file her petition for federal habeas relief in the district

court. Because Rudin filed her petition on April 25, 2011,

within the tolled limitations period, we conclude that her

petition was timely filed.
34 RUDIN V. MYLES

III. CONCLUSION

We REVERSE the district court’s dismissal of Rudin’s

petition and REMAND for further proceedings consistent

with this opinion. For the reasons explained earlier, we

DENY the State’s motion to expand the record on appeal.

ADELMAN, District Judge, concurring:

I join the court’s opinion in full. I add only that a

contrary result would require “the essentially pointless early

filing of federal petitions,” Brooks v. Williams, No. 2:10-cv00045, 2011 WL 1457739, at *4 (D. Nev. Apr. 14, 2011), by

prisoners who reasonably believe that their claims are

properly pending, unexhausted, in state courts. See Gibbs v.

Legrand, 767 F.3d 879, 890–91 (9th Cir. 2014); see also Pace

v. DiGuglielmo, 544 U.S. 408, 416 (2005) (indicating that a

prisoner’s “reasonable confusion about whether a state filing

would be timely” will ordinarily constitute good cause for a

protective federal petition).

Requiring a protective filing would be particularly

pointless in this case. By August 2007, the federal habeas

statute of limitations had long since run. Unlike in Pace,

where the prisoner could have filed a protective petition

during the state post-conviction proceedings but before the

federal statute ran, in the present case any protective petition

Rudin might have filed after August 2007 would not have

protected anything. See, e.g., Urrizaga v. Attorney General

for Idaho, No. CV-07-434, 2008 WL 1701735, at *3 (D.

Idaho Apr. 9, 2008) (dismissing as untimely protective
RUDIN V. MYLES 35

petition filed after the statute of limitations had already

expired).

O’SCANNLAIN, Circuit Judge, dissenting:

I joined Judge Murguia’s original opinion for the Court,

Rudin v. Myles, 766 F.3d 1161 (9th Cir. 2014), and regret that

she has changed her view. She was right then, and I believe

her original view is still correct. We are all agreed that Rudin

is entitled to equitable tolling for the period between

November 10, 2004 and August 22, 2007. See Majority at

26–29. During that time period, Rudin faced the

extraordinary circumstance of being abandoned by her

lawyer, Dayvid Figler, and diligently pursued her rights. See

Holland v. Florida, 560 U.S. 631, 652–54 (2010). However,

I cannot join the Court’s new conclusion that Rudin is entitled

to equitable tolling after August 22, 2007. In my view, the

statute of limitations expired on April 11, 2008, over three

years before she filed the instant petition.1 Therefore, I

respectfully dissent.

I

Under AEDPA, “equitable tolling is available ‘onlywhen

extraordinary circumstances beyond a prisoner’s control

1 As the majority points out, Rudin is not entitled to equitable tolling

between July 1, 2004—the date the AEDPA limitations period began to

run—and November 10, 2004—the date Figler was appointed. See

Majority at 26. Thus, as of August 23, 2007, Rudin had 232 days to file

her federal petition. When she failed to file by April 11, 2008, the statute

of limitations expired.
36 RUDIN V. MYLES

make it impossible to file a petition on time and the

extraordinary circumstances were the cause of [the

prisoner’s] untimeliness.’” Sossa v. Diaz, 729 F.3d 1225,

1229 (9th Cir. 2013) (emphasis in original) (quoting Bills v.

Clark, 628 F.3d 1092, 1097 (9th Cir. 2010)). And even if a

prisoner can show such extraordinary circumstances, she

must also demonstrate that she pursued her rights with

“reasonable diligence.” Holland, 560 U.S. at 653. Indeed,

“the threshold necessary to trigger equitable tolling [under

AEDPA] is very high, lest the exceptions swallow the rule.” 

Bills, 628 F.3d at 1097. With these principles in mind, I turn

to the relevant facts of this case.

II

The majority asserts that the events of a state court status

conference, which took place on August 22, 2007,

“affirmativelymisled” Rudin with respect to the deadlines for

her federal habeas petition, Majority at 30, and therefore

holds that Rudin’s failure to file a timely federal petition may

be excused. That conclusion, however, cannot be squared

with the record or our precedents.

Even if the status conference were an “extraordinary

circumstance” for AEDPA purposes, Rudin failed to act with

reasonable diligence to protect her rights.2 On August 22,

2007, Rudin, her attorney, the prosecution, and the state postconviction court first became aware that Figler had never

filed a post-conviction petition in state court. The court

 

2

 The majority conflates the concepts of statutory tolling and equitable

tolling. Here, there is no dispute that Rudin is not entitled to statutory

tolling. Thus, the majority’s attempt to recast a losing statutory tolling

argument in terms of equitable tolling is unpersuasive.
RUDIN V. MYLES 37

informed the parties, however, that due to the “extraordinary

circumstances” of Figler’s failure to file, it would “extend the

one year deadline” to file a state habeas petition.3 Based on

 

3

 The majority says that such a ruling, “coupled with the state’s failure

to brief the timeliness question or move to dismiss Rudin’s petition,

‘affirmatively misled’ Rudin.” Majority at 30 (emphasis added). It is

unclear, however, what authority supports the position that the state’s

failure to do something can amount to affirmative misleading. The

majority cites Sossa but Sossa actually suggests that a state, as an

opposing party, has no authority to extend the statutory deadline

established by Congress and therefore the state’s actions (or, in this case,

inactions) should not influence the petitioner. See Sossa, 729 F.3d at 1235

n.9 (citing Johnson v. Quarterman, 483 F.3d 278 (5th Cir. 2007)). In any

event, the state’s failure to object to the timeliness question applied to the

state petition and thus would not affect Rudin’s assessment of her federal

petition.

For that same reason, the majority is incorrect in relying on Sossa to

assert that the events of the August 22, 2007 conference were an

extraordinary circumstance under AEDPA. In Sossa, we held that when

a prisoner is “affirmatively misled” by a federal magistrate judge

regarding AEDPA’s deadlines, the petitioner may be entitled to equitable

tolling. 729 F.3d at 1232 (citing Pliler v. Ford, 542 U.S. 225, 235 (2004)

(O’Connor, J., concurring)). We determined that when a federal

magistrate judge granted multiple extensions for the prisoner to file his

federal habeas petition, such extensions effectively instructed the prisoner

that if he followed the court’s schedule, his federal filing would be

deemed timely. Id. at 1235.

In contrast, the majority here focuses on a state court’s instruction

regarding a state habeas petition. Unlike Sossa, neither the parties nor the

court discussed the federal petition. Thus, rather than “affirmatively

misle[ading]” Rudin in any way as to the AEDPA statute of limitations,

if anything the status conference made Rudin aware that her state petition

had not been properly filed and notified her that she should file a

protective federal petition. See Pace v. DiGuglielmo, 544 U.S. 408, 416

(2005).
38 RUDIN V. MYLES

these events, the majority makes the extraordinary leap that

Rudin was excused from doing anything with respect to her

federal petition for post-conviction relief for well over three

years. See Majority at 30–31.

In fact, however, Rudin was under a duty to pursue her

rights diligently. See Holland, 560 U.S. at 653. As the

majority recognizes, as of the August 22, 2007 conference,

Rudin and her new attorney, Christopher Oram, were “put on

notice of the fact that nothing had been ‘properly filed’ in

either state or federal court on her behalf.” Majority at 30. 

With such knowledge, Rudin was not excused from taking

action. Rather, she needed to act—with “reasonable

diligence”—to preserve her right to challenge her conviction. 

See Holland, 560 U.S. at 653. Indeed, the Supreme Court has

spelled out precisely what steps Rudin should have taken as

soon as she and Oram were aware that there were potential

timeliness issues with the state petition.

In Pace v. DiGuglielmo, the Court instructed that if a state

prisoner is faced with uncertainty about whether her state

post-conviction petition is timely, she should “fil[e] a

‘protective’ petition in federal court and ask[] the federal

court to stay and abey the federal habeas proceedings until

state remedies are exhausted.” 544 U.S. at 416; see also

Lakey v. Hickman, 633 F.3d 782, 787 (9th Cir. 2011) (“Pace

Moreover, the majority does not explain what inaccuracy actually

affirmatively misled Rudin. Sossa holds that “‘[i]n order to show that he

was affirmatively misled, [a habeas petitioner] need[s] to point to some

inaccuracy in the district court’s instructions’ to him, not merely to his

‘misunderstanding of accurate information.’” Sossa, 729 F.3d at 1233

(quoting Ford, 590 F.3d at 788). Whereas Sossa identified such an

inaccuracy, see id., Rudin—and the majority—cannot. Sossa, in short,

does not govern here.
RUDIN V. MYLES 39

also explicitly advised state prisoners . . . to file a protective

federal petition to avoid a possible timeliness bar.”). Rudin

not only failed to file such a protective petition, she failed to

file anything in federal court over the next three years.

The majority’s bare assertion that Rudin diligently

pursued her rights does not make it so. That “Rudin waited

only three months after the Nevada Supreme Court denied her

relief—from January 20[, 2011] to April 25, 2011—before

filing her federal petition” is completely beside the point. 

Majority at 32. Indeed, even if the August 22, 2007

conference were an “extraordinary circumstance” that would

qualify for equitable tolling purposes, Rudin must still show

she acted with reasonable diligence between August 22, 2007

and April 25, 2011. See Pace, 544 U.S. at 418. The majority

fails to demonstrate—nor could it, in light of the

record—how Rudin acted with reasonable diligence for the

duration of the relevant time period.

The August 22, 2007 conference did not excuse Rudin

from acting, but rather armed her with knowledge that should

have spurred her to protect her rights. Rudin did not file

anything in federal court until April 25, 2011, over three

years and eight months later. “Such a delay does not

demonstrate the diligence required for application of

equitable tolling.” White v. Martel, 601 F.3d 882, 885 (9th

Cir. 2010). Thus, even if the status conference were an

extraordinary circumstance, as the majority asserts, Rudin is

not entitled to equitable tolling beyond that date.

III

For the foregoing reasons, I would affirm the judgment of

the district court.