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

M A R G A R E T R U D I N , Petitioner-Appellant

,

v

.

C A R O L Y N M Y L E S ; A T T O R

N E Y G E N E R A L O F T H E S T A T E O F N E V A D A , Respondents-Appellees

. N o. 12-15362

D.C. No. 2:11-cv-00643- RL H-GW F

ORDER AND OPI NI ON

A ppeal from the United States District Court for the District of Nevada Rog er L . Hunt, Senior District J udg e, Presiding

Arg ued and Submitted F ebruary 11, 2014—San F rancisco, California

F iled September 10, 2014 Opinion W ithdrawn and New Opinion F iled

March 10, 2015

B efore: Diarmuid F . O’Scannlain and Mary H. Murg uia, Circuit J udg es, and Ly

nn S. Adelman, District J udg e

. *

Order; Opinion by

J udg e Murg uia; Concurrence by J udg e Adelman; Dissent by

J udg e O’Scannlain

* T h e Ho n o rab le L y

n n S. A delm an , U n ited States District J u d g e f o r th e Eastern District o f

W i sco n s in , sittin g b y

d esig n atio n

.R U D I N V

. M Y L E S 2

SUMMARY * *

Habeas Corpus

The p anel withdrew an opinion f i l ed on September 10, 2014, and filed a new opinion reversing the district c o u r t ’s order dismissing as untimely Nevada state prisoner Marg aret Rudin’s 28 U.S.C. § 2 254 h abeas corpus petition challeng ing her conviction of murder with the deadly use of a weapon a nd unauthoriz ed surreptitious intrusi o n of privacy by listening device.

The panel held t h a t b ecause the N evada State Supreme Co u r t concluded that Rudin’s state post-conviction petition

was untimely under state law, Rudin is not entitled to statutory tolling u nder 18 U.S.C. § 2244(d)(2) for the duration of her state post-conviction proceeding s.

The panel held that ex tra o rdinary circumstances prevented Rudin from f

iling her application for fede r al h abeas relief, a nd that she is therefore entitled to equitable tolling o f the AEDPA statute of limitat i o ns, between November 10, 2004, a nd Aug ust 2 2, 2007 – during which period th e f i r st attorney appointed to represent Rudin in collateral r eview proceeding s abandoned her, a nd during w hich period she was dilig ent in pursuing her rig hts.

The panel held that the state post-conviction c o urt’s finding – at an Aug u st 22, 2 007, status conference, immediately upon discoveri n g counsel’s failure to file a

** T h is su m m ary co n stitu

t es n o p ar t o f t h 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.R U D I N V

. M Y L E S 3

post-conviction petition in state court – of “ex traordinary circumstances” that w ould “ex tend the one y ear d eadline,” coupled with the state’s f a ilure to brief the t i m eliness question or move to dismiss Rudin’s petition, “affirmatively misled” Rudin into believing that the state court had e x cused her late filing and that her federal limitations period would be statutorily toll e d

. The panel ex p lained that until the state court’s fi n d i n g was challeng ed 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 p a n e l h e ld that Rudin satisfied her burden to show that she is e n titled to equitable tolling of the AEDPA limitations period unt i l J a nuary 2 0, 2011, when the

ex traordinary circumstances making it impossible fo r her to file her f ederal petition on time were re m o v e d

, g iving her until September 9, 2011, to file her petition for federal h abeas relief in the district court. B ecause Rudin filed her petition on April 25, 2011, the panel concluded that her petition was timely filed.

The panel remanded for further procee d i n g s and denied the state’s motion to ex pand the record on appeal.

Concurring

, District J udg e Adelman wrote that a contrary result would require the essentially pointless early f i l i n g o f federal petitions by prisoners w h o reasonably believe that their claims a r e properly pending

, unex hausted, in state courts.

Dissenting

, J u d g e O’Scannlain wrote that Rudin is not entitled to equitable tolling b ey ond the Aug ust 22, 2007, conference because she failed to act with reasonable dilig e nceR U D I N V

. M Y L E S 4

to protect her rig h ts for the duratio n o f the relevant time period.

COUNSEL

Christopher Oram, L as Veg as, Nevada, f or P et i tionerAppellant.

J amie J

. Resch (arg

ued), Senior Deputy Attorney General, and Catherine Cortez Masto, Attorney General, Office of the A t torney General, L as Veg as, Nevada, for Respondent s

Appellees.

Rene L

. Valladares, F ederal Public D efender, Meg an Hoffman, Chief, Non-Capital Habeas Unit, H e a t h er F r aley

, Assistant F e deral Public Defender, L a s Veg as, Nevada, for Amicus Curiae F ederal Public Defender for th e Di s trict o f Nevada.

ORDER

The opinion f

iled on September 10, 2014, and appearing
at 766 F .3d 1161
, is withdrawn. The superseding opinion will be filed concurrently w i t h t h is order. The parties may file additional petitions for rehearing or rehearing

en banc.R U D I N V

. M Y L E S 5

OP INION

MURGUI A, Circuit J udg e:

The A ntiterrorism and Effective Death Penalty Act o f 1 9 9 6 (AEDPA) establishes a one-y ear period of limitation within which an individual seeking relief must file an application for a writ o f habeas c orpus. S ee 28 U .S.C. § 2244(d)(1). Once that o ne-y ear period beg ins to run, it may be tolled only in certain circumstances. See id. § 2244(d)(2) (providing for statutory tolling ) ; Holland v. Florida

, 5 6 0 U.S. 631, 6 34 (2010) ( providing for equitable tolling ). The question this case presents is whether Petiti o n e r Marg aret Rudin is entitled to statutory or e quitable t o l l i n g of the AEDPA limitations period, ex cusing her six -y ear delay in fi ling her application. We conclude that she is entitled to equitable tolling sufficient to ex c use her delay

. W e therefore

reverse the district court’s order dismissing Rudin’s application as untimely

.

I. F ACTS

The facts g iving rise to this appeal are essential to our tolling a naly sis. W e t h e refore describe those facts in more detail than we otherwise might.

A. Rudin’s Criminal Trial and Direct Appeal Proceedings

I n April 1997, Rudin was charg ed with murder with the

use of a deadly w eapon and unauthoriz ed surrept i tious intrusion of priv acy by listening device, both in violation o f Nevada state law. S

ee N ev. Rev. Stat. §§ 200.010; 193.165; 200.650. Those charg es arose out of the death of Ru d i n ’s husband Ron, whose charred remains had been discovered inR U D I N V

. M Y L E S 6

L ake Mojave a few y e a

rs e arlier. See Rudin v. State
, 86 P.3d 572, 5 77 (Nev. 2004). After p leading not g u i l t y to both charg es, Rudin retained the ser v i ce s of a private attorney , Michael Amador, to represent her at trial. Her trial beg a n in the Eig hth J udicial District Court of the State of Nevada (the “trial court” or the “court”) on March 2, 2001.

Two-and-a-half w eeks before trial commenced, it became clear to the court that Amad o r a l one could not adequately defend Rud i n

. After a series of pretrial delay s, the court appointed attorney Thomas Pitaro to assist Am a d o r with Rudin’s defense. Pitaro quickly realiz e d that Amador had not
y et reviewed “thousands of pag es of discovery

, ” and Pitaro

soon became “concerned about the preparation that had been done f o r the trial.” Amado r h ad not, for ex ample, interviewed c ritical witnesses. As a result, the defense team would learn, for the first time at trial, the con tent of v arious witnesses’ testimony

. I n a t least one instance, when a witness

was called to the stand, Pitaro “went to g et from Mr. Amador the [ witness’s] file and found nothing i n s ide.” As Pitaro would later describe, “the p reparation that [ o ne] would hope normally would be done b efore trial start s was being done during the trial.”

B u t even with Pitaro’s help, Rudin’s trial was replete with alleg ed errors and professional misconduct on the part of the defense team. Amador, for ex ample, beg an with an opening statement that had “no cohesive theme.” Over the course of trial, Amador was accused o f creating a prejudicial conflict o f interest by alleg e dly neg otiating ag re em e n t s for the literary and media rig hts to his rep re sentation. Rudin

, 86 P.3d at 587–88. His g eneral lack of preparation prompted Ru din twice to move for a mistr i a l

, b u t both o f h er motions were denied. Id. at 579–80, 5 8 5 –86. Pitaro, who was appointedR U D I N V

. M Y L E S 7

a f t e r A m a d o r ’ s o p e n i n g s t a t e m e n t , d e s c r i b e d t h e representation as “ ‘a farce, and that distu r b s m e as an attorney

. . . . T h i s h a s become a sham, a farce and a mockery .’ ” 1 Id. at 590 (Rose, J ., dissenting ).

A jury convicted R udin on both charg es. F or her conviction for murder with the u se o f a deadly weap o n , the trial c ourt imposed a sentence of life imprisonmen t wi t h a po s s i bility of p arole after twenty y ears. F or her conviction for unauthor iz ed surreptitious intrusion of privacy b y a listeni n g d e vice, the court imposed a one-y ear sentence, to

run concurrently with Rudin’s life sentence. R u din’s judg ment o f 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 R u din v

. State
, 86 P.3d 572 (Nev. 2004). The court concluded that Amador’s alleg ed conflict of interest an d ineffectiveness, while sufficient to cause “concern,” “must be ex amined in a separate post-conviction proceeding a t which time Rudin’s post-conviction attorney will ex amine the ent ire record, interview all relevant witnesses a nd present the matter to the district c ourt f

or a full and complete airing and decision.” Id.
at 588. 2 The Nevada Supr e me Court’s remittitur issued on

1 B y t h e tim e Ru din ’ s trial en d ed

, th e c o u r t h a d actu ally ap p oin ted a th ird atto rn ey , J o h n Mo m o t , to assist w ith th e d ef en se. Ru d in
, 8 6 P .3 d at 5 8 0

.

2 T w o o f th e six j u stices d issen ted . T h ey co n clu d ed th at

th ere is su ffi c ien t ev id en ce i n th e reco rd

, w ith o u t th e

n ecessity o f p o st- trial p ro ceed i n g s, to estab lish th at th e d ef en se w as to tally u n

p rep ared to try th is case an d th at A m ad o r h ad a su

b stan tial co n f

lict of i n terest w ith h isR U D I N V

. M Y L E S 8

April 27, 2004, and Rudin did n ot see k a writ of certiorari from the U.S. Supreme Court. The deadline for her to do so was J une 30, 2004. 3

B. Rudin’s Petitions for Collateral Relief

Around the time that appellate revi e w of Rudin’s judg ment of conviction concluded, two statutes o f limitation be g an to run, both relating to her ability to seek collateral review of the e rrors that she alleg ed had affected her underly ing criminal trial. The f irst limitations p eriod is defined b y state law and requires, ex cept under c ertain circumstances, that a state-court petition for post-conviction relief be filed w ithin one y ear of the Nevada Supreme Court issuing its remittitur:

Unless there is g ood c ause shown for delay

, a petition that challeng es the validity of a judg ment or senten c e must be filed within 1
y ear after entry of the judg ment of conviction
or, if an appeal has been taken from the judg ment, within 1 y ear after the Sup reme Court issues its remittitur. F or the purposes o f this subsection, g ood cause f or delay ex ists if the petitioner demonstrates to the satisfaction of the court:

clien t. T h is w as p rej u d i cial to Ru d in

, an d th e resu l t reach ed w as u n reliab le.

Ru d in , 8 6 P .3 d at 5 9 5 (Ro se, J ., d issen tin g ).

3 Ru d i n h ad n in ety d ay s f ro m th e date o f th e N ev ad a Su p rem e Co u rt’ s d ecisio n , w

h ich w as issu ed on A

p ril 1
, 2 0 0 4
, to p etitio n f o r a w rit of certio rari. Su p . Ct. R. 1 3 (3 ).R U D I N V

. M Y L E S 9

( a ) T h a t the delay is n ot the fault o f th e petitioner; and

(b) T hat dismissal of the petition as untimely will unduly

prejudice the petitioner.

Nev. Rev. Stat. § 34.726(1). The second limitations period is d efined by AEDPA, and it a lso establishes a on e

- y e a r 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-y ear period of limitation shall apply to

an application f

or a writ of habeas corpus b y

a p erson in custody pursuant to the judg ment of a State court. The l i m i tation period shall run from the latest of—

(A) the date o n which t h e judg ment became final b y the conclusion of direct review o r the ex piration of the time for seeking such review;

( B) t he date on which the impediment to filing a n a pplicati o n created by State action in violation of the Constitution o r laws of the Unite d S tates is removed, if the applicant was prevented f r om filing b y such State action;

(C) the date on which the c o nstitutional rig ht asserted w as initi a l ly recog niz ed b y the Supreme Court, if the r i gh t has been newly recog niz ed b y the Supreme CourtR U D I N V

. M Y L E S 10

and made retroactively applicable to cases

on collateral review; or

(D) the date on w hich the factual predicate

o f t he claim or claims presented coul d have been discovered throug h the ex e rcise of due dilig ence.

Id. T h e AEDPA limitations period may b e tolled if a petitioner “properly file[ s] ” a p etition 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

. I

d. § 2244(d)(2).

Thus, from the date on which the Nevada Supreme Court issued its remittitur, which was April 27, 2 0 0 4
, Rudin h ad

one y ear, o r until April 27, 2 005
, t o f i l e a petition f

o r postconviction relief in state court. A nd from the date on which the deadline p assed for seeking a w rit of certiorari f r o m the U.S. Supreme Court, which was J une 30, 2004, she had o ne y ear, or until J une 30, 2005, to file an application for a writ o f habeas c orpus in federal court. I f R udin were “properly ” to file her state post-conviction p e t i t i on, the time for filing an application for federal habeas relief w ould be statutorily tolled.

W i t h that statutory backg r ound in mind, we turn t o t h e series of events that o ccurred during each of those respective
one-y ear periods in this case.

1. Attorney Dayvid Figler’s Representation

On April 30, 2004, three day s after the Nevada Supreme Court i s s u e d its remittitur on direct appeal o f Rudin’sR U D I N V

. M Y L E S 11

judg ment of conviction, Rudin’s appellate c ounsel, Craig Creel, moved to w ithdraw as counsel a nd asked the trial court to appo i n t post-conviction counsel. The trial court g ranted Creel’s motion on J une 8, 2004. Rudin, proceedingpro per, filed a similar motion on J uly 14, 2004, also seeking appointment of post-co n v i c tion counsel. 4 At a h earing on November 1 0, 2004, after 197 d ay s had passed since the state supreme court issued its remittitur, the court g ranted Rudin’s motion an d appointed attorney Day vid F ig ler to represent her. 5 Two weeks later, on N o v e m ber 24, 2004, the court issued an order to that effect. 6

A t the November 2 004 hearing at w hich the state court appointed F ig ler to represent Rudin, Rudin attempted pro per to file with the court a series o f p a p e r s. I n the district court and on appeal, Rudin contends that those papers would have

4 W e assu

m e th at th e state co u rt w as req u ired

, u n d er Nev ad a Ru le of A p pellate P ro ced u re 4 6 (d )(3 )(C), to w ait to set a h earin g d ate u n til af ter Ru d in h ad f

iled h er p ro p er m o tio n f o r ap po in tm en t o f p o st- co n v ictio n

co u n sel. Un der th at ru l e, i n a p ost- co n v ictio n ap peal, an atto rn ey ’ s m o tio n to w ith d raw as co u n sel “ sh all b e acco m pan ied b y

. . . a m o tio n b y d ef en d an t to p ro ceed in p ro p er p erso n o r w ith su b stitu te co u n sel.”

5 T h e reco rd is n o t clear as to th e reaso n , if an y , th at th e p o st- co n v ictio n

co u rt delay ed f

o u r m o n th s in h e a r i ng Ru din ’ s p ro p er m o tio n f or ap p o in tm en t o f p o st- co n v ictio n co u n sel. Cf. Nev

. Rev

. Stat. § § 3 4 .7 4 0 (req u i rin g “ ex p ed itio u s j u d icial ex am in atio n ” o f p etitio n s f or p o stco n v ictio n relief

); 3 4 .7 2 6 (lim itin g th e p erio d f or f ilin g a p etitio n to on e y ear). In th e d istrict co u rt, Ru d in arg u ed in p assin g t h at th e state co u rt’ s f o u r -m o n th d elay w as “ u n n ecessarily lo n g ” an d w as a p art o f th e

“ ex trao rd in ary circu m stan ces” th at g av e rise to h er f ilin g d elay

. S h e d oes

n o t ren ew th at arg u m en t o n

ap p eal.

6 W e tak e No v em

b er 1 0 , 2 0 0 4 , n o t No v em ber 2 4 , 2 0 0 4 , as th e d ate o n

w h ich Fig ler’ s rep resen tatio n co m m en ced

.R U D I N V

. M Y L E S 12

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 c o u r t d eclined to accept them and instead “turned [ them] o ver to Mr. F ig ler.” 7 B ut F ig ler never filed them with the court. One month later, in December 2 004, J udg e B onaventure, who ha d presided

over Rudin’s trial a n d post-conviction proceeding s up until that point, recused himself sua sponte, and Rudin’s case was reassig ned. 8

W h en Rudin’s case was reass i g ned to a nother judg e on December 29, 2004, 246 day s had passed since the Nevada Supreme Court issued its remittitur. Rudin therefore had 119 day s left to file a peti t i o n f or post-conviction relief in state court. W ith respect to AED P A
, 1 82 d ay s had passed since that limitations period had beg un to run, leaving Rudin with 183 day s to file an application for federal habeas relief. Ag ain, the deadlines for filing those petitions were April 27, 2005, and J une 30, 2005, respectively . And althoug h Rudin had once tried to file a p etition for relief in state court herself, the p o st-conviction court rejected that effort because the local

7 Ru le 3 .7 0 o f th e Ru les o f P ractice f o r th e Eig h th J u d icial District Co u rt

o f th e State o f

Nev ad a p ro v id es th at p ap ers “ d eliv ered to th e clerk o f th e

co u rt b y a d ef

en d an t w h o h as co u n sel of reco rd w ill n o t b e f iled [b u t w i l l b e] f o rw ard ed to th at atto rn ey f or su ch co n sid eratio n as co u n s e l d eem s ap p ro p riate.”

8 J u dg e B o n av en tu re recu sed h im self as a resu lt o f p erso n al b iases th at h e h ad ag ain st Ru d in ’ s p rev io u s ap p ellate co u n sel, Craig Creel. S ee Matt P o rd u m , Bo n a ven tu re W

o n ’t Hea r Ru d in Ap

pea l

, L as Veg as Su

n , Dec. 2 8
, 2 0 0 4
, h ttp : /

/ w w w

. l a s v e g a s s u

n

. c o m / n e w s / 2 0 04 / d ec/2 8 /b o n av en tu re- w o n th ear- ru d in

- ap p eal/ (“ ‘ My b lo o d b o i l s ev ery tim e I h ear th e n am e Craig C r e e l

. . . . W h eth er I lo o k at h i m o r t h in k o f h i m , m

y blo o d b o i ls. I ’m
g ettin g a h ead ach e t h i n k in g of h im rig h t n o w .’ ” (q u o tin g Bo n av en tu re, J .)).R U D I N V

. M Y L E S 13

rules p rohibited Rudin from doing so when she had “counsel of record.”

* * * * *

The record sug g ests that, after Rudin’s case was reassig ned (and perhaps a s a result o f that reassign m e n t ), substantial confusion arose between the parties and the court about whether Rudin h ad already f iled a petition f

o r postconviction relief. On J anuary 5, 2005, for ex ample, the state court held a status h earing on Rudin’s “opening brief.” The court’s use of the term “ o pening brief” sug g es t e d t h a t the parties and the court believed that Rudin’s initial p etition for post-conviction relief had b een filed but that Rudin had y et to file a brief in support o f that petit ion. See Nev. Rev. Stat. § 34.735 (establishing the form of a p etition). At the same status hearing

, the court g rante d F ig ler a continuance,

ex tending his time to f

ile the “brief” a

nd se tting a second
status hearing for J u ly 13, 2005. At t h e J u l y 1 3th status hearing

, F ig ler ag ain requested “ an a dditional 90 day s to file his brief,” which the court g ranted t h e f o l l owing week. B y that date, b oth of Petitioner’s one-y ear limitations periods for filing her requests f

or collateral r elief had run. B u t n obody

— neither F ig ler, nor th e State, nor the court—recog niz ed that
to have occurred. On J a n u ary 18, 2006, the post-conviction
court ag ain g ranted F ig ler a n additional “45 day s in w hich to file his opening b r i e f d u e to the voluminous record in this

c ase.” The State would later c onfirm that, a t that t i m e , t h e State a nd the court were “under the mistaken impression” that a petition had already

been filed.

Meanwhile, Rudin became concerned—and we believe rig htfully so—that F ig ler was not adequately representing her in h er c ollateral review proceeding s. According to Rudin, atR U D I N V

. M Y L E S 14

some point in 2005, she requested that F ig ler p rovide h er with copies of her f

ile. F ig ler did n ot immediately respond. F ig ler visited Rudin only a handful of times that y ear, 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 “ complex ity ” o f her case. F ig ler last visited Ru din in May 2006, which was t h e f i r s t time in a lmost a y ear that he had done so.

I n November 2005, Rudin beg an to g ather information in support of her soon-to-be-filed motion to substitute counsel. F irst, she submitted an I nmate Request F orm to the prison staff asking for a summary of th e a t t o rney v isits she h ad received that p ast y ear. I n a response d a ted a few weeks later,
t h e staff informed her that she had received four visi t s i n 2005, occurring on J anuary 4
, F ebruary 7, Fe bruary 25, a nd J u n e 17. I n J anuary 2006, after multiple failed attempts t o contact F ig ler, Rudin submitted a sec o n d I n mate Request F orm notify ing prison staff that she h ad “not been able to c all [ her] attorney since [ December 15, 2005] ” and requesting that the staff fix the problem, which she w a s c o n cerned was “at this facility .” Three weeks later, the p r i s o n staff responded, informing Rudin that F ig ler ha d a c ollect c all block on his office p hone and that Rudin would n e e d t o send a letter to F ig ler requesting that the block be removed. A t t h e same time, Rudin’s friend, who was not in prison, “repeatedly

. . . requested [ that F ig ler] 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.

F ig ler never filed any

thing with the state post-conviction
court. On April 5, 2006, 511 day s after F ig ler was appointed, Rudin moved to substitute counsel. I n her motion, she described F ig ler’s inade q u acies and ex pressed her “g rea[ t]R U D I N V

. M Y L E S 15

concer[ n] that she [ was] not receiving a d e q u a t e r e p resentation
reg arding h e r post co n v iction.” At a hearing on J uly 17, 2006, the court g r ante d h e r m otion and, at the same time, appointed a ttorney Christ opher O ram, who continues to represent Rudin on appeal, to represent her. 9 The court filed an order to that effect on Aug ust 17, 2006.

To summariz e the facts leading up t o this point: B y Aug ust 1 7, 2006, the day that F ig ler was relieved fr o m his duties to represent Rudin, almost two y ears had passed since the d ay he was appointed to represent her. Early on in the

co u r s e o f F i g ler’s representation, Rudin’s case was r e assig n ed
to a new judg e, who g ranted at least three of F ig ler’s requests for additional time to file an “ opening brief.” At no point did the court ever mention the one-y ear limitations period under Nevada state law, and a t no p o int did the State raise timeliness concerns. And while F ig ler reg ularly attended the court’s status hearing s, he appears to have done nothing else i n support o f h is client’s request for post-conviction relief. I ndeed, after J u ne 2005, F ig ler stopped communicating with his client a ltog ether, by declining to visit her in prison a nd b y placing a collect call block on his office telephone. W h en F ig ler’s representation ended, 842 day s had passed since the day Rudin’s o ne-y ear state limitations p eriod beg an to r un, and 778 day s had passed since the day her one-y ear AEDPA limitations period beg an to run. Of those day s, 645 and 581, respect i v e ly

, had run under F ig ler’s watch. And during that time, F ig ler had filed nothing in either state or federal court.

9 A ttach ed t o P e t i t i o n e r’ s m o tio n to su b stitu t e co u n s el w as w

h at sh e called a “ b rief o p en in g su p p lem en t,” p resu m ab ly to h er p etitio n f o r p o stco n v ictio n relief

. W h en th e p o st- co n

v ictio n co u

rt ru led o n h er m o tio n , h o w ev er, it ap p ea r s t o h a v e co n stru ed t h e f ilin g so lely as a m o tio n to

su b stitu t e co u n sel, n o t as a p etitio n f o r p o st- co n v ictio n

relief

.R U D I N V

. M Y L E S 16

2. Attorney Christopher Oram’s Representation

Oram’s representa t i o n beg an on Aug ust 17, 2006, 1 0 a nd has continued throug h the c ourse of this appeal. Oram finally filed a post-conviction petiti o n i n state court o n Aug u st 21, 2007. Prior submissions or references to Rudin’s “o p ening brief” notwithstanding

, Oram’s Aug ust 21, 2007, submission
appears to have been the first and only petition f o r p o s t

conviction relief filed in the state c ourt. I t w as filed t hree
y ears and 1 16 day s after the state-law statute of limita t i ons beg an to run—or 846 day s too late.

A colloquy between Oram, the post-conviction court, a nd the Stat e a t a status c onference on Aug ust 22, 2007, demonstrates that, even at that late date, the parties were still

co n f u sed as to whether a petition for post-conviction relief h ad actually been f

iled. Oram initially raised the issue b y sug g esting that he re-label his most recent filing as a petition for “ a writ of habeas corpus” as opposed to a “supplement.” T h e post-conviction court ag reed and proceeded to f ind “ex traordinary circumstances” to ex cuse the delay in filing : 1 1

MR. ORAM: [ M ] y f

e a r i s , as I look at t h e statute, that – um – t h e o n e y e ar deadline to file, I l o oked at it and it said that – uh – the
court can ex cuse it, and can delay the process,

10 W e co n s id er Fig ler’ s rep resen tatio n to h av e ex ten d ed u n til th e d ate on

w h ich th e co u rt en tered its o rd er su b stitu t in g co u n sel, w

h ich w as A u g u st 1 7 , 2 0 0 6

.

11 W e assu

m e th at th e p o s t- co n v ictio n co u rt’ s ref eren ce to “ ex t

rao rd in ary circu m s tan ces” is eq u iv alen t to , o r w as in ten ded to m ean , “ g o o d cau se,”

w h ich is th e stan d ard to ex cu s e a f ilin g d elay u n d er Nev ad a Rev i s ed Statu t e sectio n

3 4 .7 2 6

.R U D I N V

. M Y L E S 17

which I assume was g oing on while Mr. F ig ler

was g oing throug h this. B ut perhaps I should relabel the petition for writ of habeas corpus. I may need to ame nd it today

, just to say where she’s located, because that’s what the statute requires.

THE COURT: O k a y. I m a y s a y yo u should probably do that. J ust do that as like a one pag e sheet, like an errata to y our deal.

MR. ORAM: Yes.

THE COURT: And the court will find, as

a matter o f f

inding today

, that [ y our] filing o f the writ for post-conv i ction relief is timely

, based upon – um – the fact that – uh – M r. F ig ler had the case for so m a n y y e ars. I believe it was y ears.

MR. ORAM: I t was t w o y ea rs. Yes, it was two y e ars.

THE COURT: I t was two y ears, and filed nothing

, even thoug h w e kept having status checks. So – um – we’re g oing to find that it was timely

filed.

. . . .

Um – and it was a

n ex tensive trial. D idn’t it take several weeks?

MR. ORAM: Ten weeks.R U D I N V

. M Y L E S 18

. . . .

THE COURT: T e n we e k t ri a l

. S o t h at would be the ex traordinary circumstance that

we w o u l d find w ould allow the petition for post-conviction relief be filed. That, plus the f act that the first attorney didn’t do any thing.

At that point, and for the very first t i m e i n two y ears, the State became aware that no petition ha d been filed a nd decided to speak up:

[ THE STATE] : I thi n k

, J u d ge , t hat sets a bad precedent, in lig

h t of the fact that we can
g et multiple attorney s, a

nd every attorney that
g ets this say s, well, he had it too long

, he had it too long

. W e’d like to at least address that, before y ou make that finding

.

The post-conviction court oblig ed, declining to make a finding until the State had the opportunity to address the issue in further briefing

. I t noted, however, that “I really think that the court is g o ing to find

, n o t o nly this court, but the nex t court, is g oing to find that there were ex trao rdinary circumstances in this c ase, which wo u l d allow the court to

ex tend the o ne y ear deadline.” The State never did brief the timeliness question, nor did it ever move to dismiss Rudin’s petition.

On D ecember 19, 2 008, the post-conviction court held a hearing to consid e r t he 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] o urt g a ve them during the trialR U D I N V

. M Y L E S 19

. . . i t ultimately [ was] an unfair trial.” The post-conviction court went on to state,

And there’s two standards for Strickland : [ 1 2 ] One is was counsel effective, a nd then the

s e c o nd standard is e v en if counsel wasn’t effective was the evide nce so overwhelming

. . . ag ainst the d efe n d a n t [ that] it wouldn’t

m a ke any d ifference who defended her a n d h o w prepared they were and how m a n y

ex p erts they called b ecause t h e decision would alway s be g uilty

of murder.

I n t h is 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 b y the State, and I had commented on t h e 22nd of October that the case wa s f u l l of a cast of characters tog e ther with witnesses, a nd the ca s e had a lot of intrig ue and spins a nd loops, and there was a lot of ulterior motives on people who testified.

. . . .

The e x perts couldn’t agree on much o f
any thing in this case as I read the dry re cord. The p roof of g u ilt was n ot a slam dunk by any

s t r e tch of the imag ination for the State, so I can’t say – I cannot say in this case that no

m a tter who had defended her that the ve r d i ct would have been the same.

12 S t rickla n d v. W a sh in gto n , 4 6 6 U.S. 6 6 8 (1 9 8 4 ).R U D I N V

. M Y L E S 20

After hearing testim o n y from defense attorney s Pitaro a nd Momot, the court g ranted 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 p e o p le who are in the c r iminal justice sy stem that they w i l l have an adequate defense.”

The St at e appealed, arg uing for the first time on appeal that Rudin’s petition was untimely

. I n its brief, the State confirmed what we think is sug g e sted b y the record: that “the prosecution and t h e judg e were under the mistaken impression that an initial petition had been timely filed.”

The N evada Supreme Court r eversed the post-conviction court’s judg ment. I t concluded that n either of that court’s
st a ted r easons for e x cusing Rudin’s delay “affords a f actual

or leg al basis to find that Rudin’s claims were not reasonably available to be raised in a timely manner.” Rudin soug ht en banc recons ideration, which the N evada Supreme Court denied on J anuary 20, 2011. I t was onl y a f ter the Nevada Supreme Court denied e n banc reconsideration of Rudi n ’s
state post-conviction appeal that Oram filed an application for habeas relief in federal court.

* * * * *

On April 25, 2 011, Rudin, still represented by O ram, applied f o r habeas relief in fe d e r a l c ourt. B y that time, almost seven y ears had passed since the deadline for seeking

a w rit of certiorari from the U.S. Supreme Cour t , s ee 28 U.S.C. § 2 244(d)(1)(A), making her application almost six
y ears too late under AEDPA. I n her application, Rudin contended that the Nevada S u p reme Court erred in finding her state-court petition for post-conviction relief time-barredR U D I N V

. M Y L E S 21

because either (1) the petition was timely

, or (2) the State h ad

w aived any arg ument to the contrary when it failed to ma k e

a timeliness arg u ment b e f ore taking its appeal. F o r those
reasons, according to Rudin, the federal district c ourt should have considered her state-court petition to be “properly filed” and g iven her the benefit of statutory tolling of the AEDPA lim i t ations period. See 28 U.S.C. § 2244(d)(2). I n the alternative, Rudin arg ued that equitable t o lling pursuant to Holland v. Florida

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

case. The district court g ranted the State’s motion to dismiss, dismissed Rudin’s p e tition wit h prejudice, and denied the certificate of appealability

. On October 24, 2012, we g ranted Rudin’s request f

or a certificat e o f appealability on the question “whether the d istrict c ourt p roperly determined that the petition was barred by the statute of limitations.” W e turn now to that question.

II. DISCUSSION

W e 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). W e also review de n ovo the question whether AEDPA’s statute o f limitations should be tolled. See Spitsyn v. Moore
, 345 F .3d 796, 7 9 9 (9th Cir. 2003). Unless the facts are undisputed, we review the district court’s finding s 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.R U D I N V

. M Y L E S 22

A. Statutory Tolling

W e beg in with Rudin’s a r g u ment that she is e n titled to statutory tolling of the AED P A l i m i tations period. On this point, Rudin appears to arg ue that the N evada Supreme Court erred when i t found her state post-conviction petition untimely

, and th a t h a d it n o t so erred, her petition would be considered “properly filed” u n d e r 28 U.S.C. § 2 2 44(d)(2), entitling her t o s t atutory tolling of the AEDPA limitations period. 1 3

1 3 In Co lema n v. Th o mp so n , 5 0 1 U.S. 7 2 2
, 7 5 5 (1 99 1 ), th e Co u rt n oted th at a h ab eas p etitio n er m ay h a v e a co n stitu tio n al rig h t to th e assistan ce

o f ef f ectiv e co u n se l i n co llateral p ro ceed in g s, w h ere state co llateral rev iew is th e f irst p l ace a p riso n er can p resen t an in ef f ectiv e assistan ce claim

. S ee id

. ; see a lso Ma rtin ez v. Rya n , 13 2 S. C t. 13 0 9
, 1 3 1 5 (2 0 1 2 ) (“ Co lema n

v. Th o mp so n lef

t o p en

. . . a q u estio n o f co n stitu tio n al law : w

h eth er a p riso n er h as a rig h t to ef

f ectiv e co u n sel in co llateral p ro ceed in g s w h ich
p ro v id e th e f

irst o ccasio n t o raise a claim o f i n ef f ectiv e assistan ce at trial.”). Bu t see Bu en ro stro v. Un ited S t a tes , 6 9 7 F .3 d 1 1 3 7
, 1 1 3 9

– 4 0 (9 th Cir. 2 0 1 2 ) (“

Ma rtin ez d id n o t d ecid e a n ew ru le o f co n stitu tio n al law .”). Ru d i n d o e s n o t ex p licitly articu late a claim f o r in ef f ectiv e assistan ce of h er state po st- co n v i ctio n rel i e f c o u n sel, b u t w e n o tice t h at t h is claim

n o n eth eless p erv ad es h er claim f o r eq u i tab le to llin g

. A ssu m in g a rg u en d

o th at Ru d in

h ad stated

su ch a claim

, an d th at th is Co u rt w ere to reco g n i ze th e co n stitu

tio n al rig h t lef

t o p en b y C

o l e ma n an d ack

n o w led g ed b y Ma rtin ez , Ru d in m ay h av e q u alif ied f o r statu to ry to llin g u n d er 2 8 U.S.C. § 2 2 4 4(d )(1 )(D).

T o state a claim f

o r i n ef f ectiv e a s s i stan ce o f co u n sel, a h ab eas p e t i t io n er m

u st sh o w b o th (1 ) def

i cien t p erf

o rm an ce, an d (2 ) stem

m i ng f ro m th at d ef

i cien t p erf

o r m a nc e. S trickla n d

, 46 6 U.S. at 6 8 7

. Here, alth o u g h Ru din learn ed of Fig ler’ s d ef i cien t perf

o rm an c e b y Au g u s t 2 2
, 2 0 0 7 at th e l at e st , sh e w as n o t p rej u d iced b y h is d ef icien t p erf

o rm an ce

u n til J an u ary 20
, 2 0 1 1
, w h en th e Nev ad a Su

p rem e Co u rt d eclin ed to t o l l th e tim e o f Fig ler’ s ab an d on m en t an d b arred Ru d in ’ s state p eti tio n as

u n tim ely

. A cco rd in g ly

, “ th e f actu al p red i cate” o f h er claim f o r in ef f ectiv e assistan ce o f p o st- co n v icti o n relief co u n sel co u ld n o t h av e b eenR U D I N V

. M Y L E S 23

W h ile we may not have made the same decision a s the Nevada Supreme Court, w e are not at liberty to second g u ess that court’s decision when it w as acting on direct a ppeal o f the state po s t-conviction court’s judg ment. The state supreme

c ourt c oncluded that Rudin’s petition was untimely un d e r state law, and “[ w] hen a postconviction petition is untimely under state law, that [ is] the end o f the matter for purposes o f § 2 2 44(d)(2).” Pace v. D i Guglielmo

, 544 U.S. 408, 414 (2005) (internal q

uotation marks omitted) (second alteration in orig inal); accord Zepeda v

. W alker

, 581 F .3d 1 013, 1018 (9th Cir. 2009). I n lig ht o f Pace
, a nd because t h e N e v ada 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 h e r state postconviction proceeding s. 1 4

B. Equitable Tolling

W e turn, therefore, to R u d in’s arg ument that she is entitled to equitable tolling u n der Ho l l a n d v

. Florida

. A petitioner is entitled to equitable tolling if she can establ i sh that (1) she was pursuing her righ t s dilig ently

, but (2) some

d isco v ered u n til Jan u ary 2 0
, 2 0 1 1, 2 8 U.S.C. § 2 2 4 4 (d )(1 )(D), an d th e statu t o r y l i m itatio n s p erio d f o r th at claim w o u ld n o t h av e b eg u n to ru n

u n til th at d ate. See Ha sa n v. G a la za , 25 4 F.3 d 11 5 0
, 1 15 4

– 5 5 (9 th Cir. 2 0 0 1 ).

14 W e lik ew ise rej ect Ru d in ’ s arg u m en t th at sh e can claim th e b en ef it of
eq u itab l e to llin g in state co u rt, th ereb y en titlin g h er to s tatu to ry to llin g in f ed eral co u rt. Eq u i tab le to llin g u n d er Ho lla n d v. Flo rid a is a f ed eral d o ctrin e en t irely s ep arate f ro m state law

. S

ee 5 6 0 U.S. at 6 5 0 (“ Eq u itab le
to llin g [is] an in qu iry t

h at d o es n o t im

p licate a state co u rt’ s i n terp retatio n

o f state law .”); see a lso Co lema n , 5 0 1 U.S. at 7 32 (ap p ly in g th e in d ep en den t an d ad eq u ate state g ro u n d d o ctrin e to th e h ab eas co n tex t).R U D I N V

. M Y L E S 24

ex traordinary circumstance stood in h er way

. Pace
, 544 U.S.

a t 4 1 8; Sossa v. Diaz
, 729 F .3d 1225, 1229 (9th Cir. 201 3 ) (“[ E] quitable tolling is availa b l e ‘only when ex traordinary circumstances bey ond a prisoner’s control make it impossible
to file a p etition on time and the e x traordinary circumstances

were the cause of [ the prisoner’s] u ntimeliness.’ ” (second alteration in orig inal) ( quoting Bills v

. Clark

, 628 F .3d 1092, 1 097 (9th Cir. 2010)). Rudin bears a heavy burden t o s h o w t h a t she is entitled to equitable tolling

, “lest the ex cep t i o n s swallow the rule,” Bills

, 628 F .3d a t 1 097 (internal quotation marks omitted); however, the g rounds for g ranting equitable tolling are also hig hly f

act-dependent, Sossa
, 7 2 9 F .3d at 1229. At bottom, the p u rpose of equitable tolling is to “soften the harsh i m pact of technical rules which mig ht otherwise prevent a g ood faith litig ant from having [her] day in c o u r t

. ” United States v. B uckles

, 647 F .3d 883, 891 (9th Cir. 2011) (internal quotation m arks omitted); see also Holland

, 560 U.S. at 650 (“[ W ] e have followed a tradition in which courts of equity have soug h t to ‘ r e lieve h ardships which, from time to ti m e , a r ise f rom a hard a

nd f a st adherence’ to more absolute leg al ru l e s, which, if strictly applied, threaten the ‘evils o f a r c haic rig idity .’ ” (quoting Hazel-Atlas G lass Co. v. Hartford-Empire Co.
, 322 U

. S. 238, 248 (1944))).

I n H o l l a nd

, the Supreme Court held that AEDPA’s limitations p eriod may be t o l l e d for equitable reasons. 560 U .S. at 649. I n that case, the petitioner’s att orney h ad failed to f

ile a timely application despite the petitione r’s repeated r equests to do so, failed to inform the p etitioner about crucial facts r e l a t e d to his case, a nd failed to

c ommunicate altog ether with h is client over a period o f

s everal y ears. Id. at 2564. T he Supreme Court found those circumstances to constitute more than a “g arden variety claimR U D I N V

. M Y L E S 25

o f ex cusable neg lect,” and instead concluded that t h e attorney ’s eg reg ious misconduct amounted to, in essence, abandonment. Id. ; id. at 2 568 (Alito, J
., c oncurring ); see also Maples v. Thomas , 132 S. Ct. 912, 923–24 (2012) (adopting J ustice Alito’s r easoning in Holland addressing attorney abandon m e nt). 1 5 B e cause of that abandonment, the petitioner’s delay could be deemed to result from misconduct that could not constructively be attribute d to him, a nd therefore the AEDPA limitations period could potentially be tolled f or the relevant p eriod of time. Holland

, 560 U.S. at 652–53.

To be e n t i tled to equitable tolling of the AEDPA limitations period, Rudin thus bears the burden to prove that she has been pursui ng her rig hts dilig ently but that

ex traordinary circumstances made it impossible for her to file her application on time. See Pace
, 544 U.S. at 4 1 8

. Under Holland

, a t t o r n ey a

bandonment may g ive rise to such

ex traordinary circumstances. 560 U.S. at 6 5 2

– 5 3

. “The dilig ence r equired for e q uitable tolling purposes is ‘reasonable dilig ence,’ not ‘max imum fe a sible dilig e nce.’ ” Id. at 2565 (citations and second a nd third internal quotation marks o m i t t ed). W e r eadily conclude that ex traordinary circumstances in part g ave rise to Rudin’s d elay in filing her application for federal habeas relief.

15 Mere n e g l i g e n c e o n th e p art o f a p riso n er’ s p o s t- co n v ictio n co u n sel d o es n ot w arran t eq u itab le to llin g

. Ho lla n d , 5 6 0 U.S. at 6 5 1

– 5 2

. “ T h at is so

. . . b ecau se th e atto rn ey is th e p riso n er’ s ag en t , an d u n der ‘ w e l lsettled p rin cip les o f ag en cy law ,’ th e p rin cip al b ears t h e risk o f n eg lig en t

co n d u ct on t h e p art o f h is ag en t.” Ma p les

, 13 2 S. Ct. at 9 2 2 (q u o tin g Co lema n , 5 01 U.S. at 7 53

– 54 ). B u t w h en an atto rn ey ab an d o n s h is clien t, th e p rin cip al- ag en t relatio n sh ip is sev ered

, an d th e atto rn ey ’ s “ act s or

o m issio n s th eref

o re ‘ can n o t f

airly b e attrib u t e d t o [th e clien t ].’ ” Id

. at 9 2 3 (alteratio n

in o rig in al) (q u o tin g Co lema n , 5 0 1 U.S. at 7 5 3 ).R U D I N V

. M Y L E S 26

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

B e tween J uly 1, 2004, the d ay the AEDPA limitat ion period beg an to run, and November 10, 2004, the da y t hat F igl e r was a

ppointed to r epresent Rudin, Rudin was not represented by counsel. During that time, Rudin cannot establish that “ ex traordinary circumstances” ex isted to equitably toll the AEDPA limitation period

. S ee Roy v

. Lampert
, 465 F .3d 9 64, 970 (9th Cir. 2 006) (“[ P] ro se status,

on its own, is not enoug h to w arrant equitable t o l l i n g .”). Thus, during that time, 133 non-tol l e d d a y s passed on Rudin’s AEDPA clock.

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

On November 10, 2004, F ig ler was appointed to represent Rudin i n h e r collateral review proceeding s. 1 6 After F ig ler

was appointed, however, he abandoned her. Over the course of his period of representation, F ig ler v isited Rudin in prison only a handful of times, and by mid-20 0 5
, t h o s e visits h ad stopped. He had a collect call block placed on h is office phone, making him a ll but impossible to r e ach. And while

w e acknowledg e that F ig ler p hy sically attended the p o s t

conviction court’s status h earing s, the record makes clear that he did so with seeming ly no intention to a ctually represent his client. All t h e w hile, F ig ler failed to inform Rudin of the

reasons f o r h is delay

, p roviding her no clue of “any n eed to protect [ herself] pro se.” See Maples

, 132 S. Ct. at 917. On the record be f

ore us, it does not appear that anyone was

16 It i s sig n if

ican t th at Fig ler’ s rep resen tatio n co m m en c e d b ef

o re J u n e 3 0
, 2 0 0 5 —th e last d ay o f Ru d in ’ s A EDP A lim itatio n p erio d. T h a t is so b ecau se ex t

rao rd in a r y c i r cu m stan ces can n ot to ll a statu te of lim itatio n s th at h as alread y

ru n

.R U D I N V

. M Y L E S 27

aware o f R u d in’s need to p rotect herself until at least A ug ust 22, 2007. W e therefore conclude that ex traordina r y circumstances prevented Rudin from filing h e r a pplication for federal habeas relief between November 10, 2004, a nd Aug ust 22, 2007.

Rudin was also dilig e nt in p ursuing her rig h ts during that time, beg inning with her attempt to file pro per a p etition for post-conviction relief on November 10, 2004. Over the

course o f F ig ler’s representation, Rudin made repeated attempts to contact him, provided him with witness informa t i o n relevant to her case, and requested that he
p r o v i d e her with copies of her files so that she could take

a d d itional steps on her own behalf. W hen F ig ler repeated l y failed to respond, Rudin prepared and filed h e r o wn motion
to substitute c o unsel, which had a “brief o pening supplement”

a ttached to it. Until she filed that motion, Rudin had d o n e every thing short of filing her own “opening brief,” which, a s the state court had already made c lear, th e l o ca l rules
p r o h i b ited her from doing

. W e conclude that Rudin was

“ reasonably dilig ent” during the p eriod of F ig ler ’s representation, which is a ll that is r equired for equitable tolling purposes. See Holland , 560 U.S. at 653–54.

Rudin is therefor e entitled to equitable tolling of the AEDPA statute of limitations during the time in which F ig ler

was representing her and u p until the point at wh i c h Oram became aware that F ig ler had never filed any thing on Rudin’sR U D I N V

. M Y L E S 28

behalf. 1 7 That p e r iod of time ran from November 10, 2004, to Aug ust 22, 2007.

The State arg ues that R u d i n c annot avail herself of the benefit of equitable tolling during that time because F igler represented Rudin only in state court, not in federal court. On that point, the State contends that F ig ler’s in a dequacies in
state court had no bearing on Rudin’s a b i l i ty to f ile a timely federal application f

or relief. I t arg ues that, pursuant to Pace
, Rudin should have filed a “protective” application in federal
court and asked the court to stay a n d a b e y its h abeas proceeding s while she ex hausted h er state-court remedies. 544 U.S. at 416 (“A p risoner see k ing state postconviction relief [ may file] a ‘protective’ petition in f e d e r al court a

nd as[ k] the f

ederal court to stay and abey the federal h a beas proceeding s until state remedies are ex hausted.”). Under the specific circumstances of this case, we a re n o t persuaded b y the State’ s a r gument. See Holland

, 560 U.S. a t 632 (“[ S] pecific circumstances

. . . could warrant s pecial treatment in an appropriate case.”).

F or all Rudin knew—and, indeed, until Aug ust 22, 2007, for all the State knew—Rudin’s state-court petition h ad already been filed, making her e lig ible for statutory tolling under § 2244(d)(2). During the per i o d t h a t F ig ler h ad represented her, almost every reference to the pending filing

was to an “opening ” or “supplemental brief,” sug g esting that the court had already received her initial p e t ition. Even the State concedes that it believed that to be the case. During the

17 R eg rettab ly

, th is Co u rt h as b eco m e f am i l i a r w i th Fig ler’ s rep eated ab an d o n m en t o f h is h ab eas clien ts. S ee, e.g

. , Gib b s v. LeGra n d

, 7 6 7 F.3 d 8 7 9
, 88 8 n .7 (9 t

h C i r

. 2 0 1 4 ) (“ F ig ler’ s ab an d o n m en t o f b o th Gib b s an d Ru d in is d eep ly tro u b lin g , to say

th e least.”).R U D I N V

. M Y L E S 29

period in w hich Rudin “lacked a clue” of any need to protect herself, w e decline to impute to h er k nowledg e that neither the State nor the court possessed. See Lott v. M u e l l e r , 304 F .3d 918, 923 (9th Cir. 2 0 0 2 ) ( declining to impute to a p etitioner knowledg e that, “[ e] ven with the benefit of le ga l training

, r eady access t o l e ga l materials and the aid of four
y ears of additional case law,

. . . e vaded both [ petitioner’s] appointed counsel and the ex pertise of a federal mag istrate judg e”). 1 8

18 T h e State f

iled a m otio n

in th is co u rt to ex p an d th e reco rd o n ap p eal
to in clu d e v ario us s tate- co u rt do cu m en ts th at it h ad n o t, f o r w h atev er

reaso n , m ad e a p art o f

th e reco rd in th e d istrict co u rt. A s a g en eral ru le, d o c u m e n ts n o t f

iled w ith th e d istrict co u rt can n o t b e m ad e p art o f t h e

reco rd o n ap p eal. S

ee Fed . R. A p p . P . 1 0 (a) (“ [T ]h e o rig in al p ap ers an d

ex h ib its f i led in t h e d istrict co u rt; th e t

ran scrip t o f p ro ceed in g s, if an y ; an d

a certif ied co p y o f th e d o ck et en t ries prep ared by th e d istrict c l e r k

. . . co n stitu t e t he reco rd on ap p eal.”); Kirsch n er v. Un i d en Co r p

. o f Am.
, 8 4 2 F.2 d 1 0 7 4
, 1 0 7 7 (9 th Cir. 1 9 8 8 )

. T h ere are o f co u rse n arro w

ex cep tio n s to th at g en eral ru l e , w h ich w e m ay , in o u r d iscretio n an d in

“ u n u su al circu m s tan ces,” in v ok e. L o wry v. Ba rn h a rt , 3 2 9 F .3 d 1 0 1 9
, 1 0 2 4

– 2 5 (9 th

Cir. 2 0 0 3 ) (listin g ex cep tio n s).

T h e State o ffe r s n o c o m

p ellin g reaso n f

o r its f ailu re to m ak e th ese d o cu m en ts p art o f th e reco rd in th e d istrict co u rt. Iro n i cally , th e reaso n s it o f f ers f o r d o in g so are t

h e sam e reaso n s to w

h ich it o b j ected w h en th e state p ost- co n v ictio n co u rt f o u n d th at Ru d in h ad estab lish e d g oo d cau s e f o r h er f i lin g d elay : th at “ t

h is is n o t a ty

p ical case,” th at “ Ru d in ’ s trial w as

o n e of th e lo n g est in Nev ad a h isto ry ,” an d th at, o v erall, t h e p ro ceed in g s b elo w w ere co m

p lex

.

W e d o n o t n eed th e d o cu m en ts th at th e State seek s to m ak e p art o f th e

reco rd o n ap p eal in

o rd er to d ecid e th is case. T h u s, w e d eclin e t o dep art f ro m o u r g en eral ru le. T h e State’ s m o tio n to ex p an d th e reco rd o n ap p eal is DENIED.R U D I N V

. M Y L E S 30

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

On Aug ust 22, 2007, at the status conference in the state
po s t -c onviction court, the parties first became aware of the fac t t h at F ig ler had never f iled a post-conviction petition in
state court. F r om that point forward, Rudin w as p ut on notice of the fact that n othing had been “properly fil e d ” i n either
state or federal c o u rt on her behalf. H owever, immediately
upon discovering F ig ler’s fai l u r e to file, the post-conviction
court found “ex t r a o r dinary circumstances” that would “ex tend the one year deadline.”

T h i s f inding

, coupled with the state’s failure to b rief the timeliness question or m ove to dismiss Rudin’s petition, “affirmatively misled” Rudin into believing t h a t the state court had ex c used her late f i l ing and that her federal limitations period would be statutorily tolled. S ee Sossa
, 729 F .3d at 1232 ( citing P liler v. F ord

, 542 U .S. 225, 234 (2004)). I n Sossa
, we held that where a p e t i t i o n e r was affirmatively misled to believe that her limitations period was being tolled under the statute, this ina c c u r a c y could entitle her to e quitable tolling

. See id. at 123 2

– 35. Similarly h ere, the state court’s f

inding of “ex traordinary circumstances” led Rudin to believe that her limitations period w o u l d be statutori l y tolled. B y e x cusing Rudin’s delay in state court, the state p ost-convic tion court c onvey ed that Rudin’s state petition was “properly filed” and, by ex tension, that her time
to f ile a federal petition would be ex tended under the statute. See id. as 1233. 1 9 U ntil the state court’s finding was

19 Co n trary to th e d issen t, th at S o ssa co n sid ered th e in accu racy of

a f ed eral m ag i strate j u d g e’ s in stru ctio n s, rath er th an a s tate co u rt j u d g e’ s in stru ctio n s, is im

m aterial. S

o ssa d o e s n ot lim it its reaso n in g to actio n s b y f ed eral f o ru m s. S

ee id

. at 1 2 3 5 (reaso n in g th at th e st a t e b e a rsR U D I N V

. M Y L E S 31

challeng ed or reversed—that is, as lo ng as Rudin’s petition

was deemed “ properly filed” by the state pos t -c onviction court—Rudin remained e ntitled 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 e x tension o f time may constitute an “ex traordinary c ircumstance” making it “impossible” to file

a petition on time, see Gibbs

, 767 F

. 3 d a t 8 88 n.8 (citation omitted) (in ternal quotation marks o mitted). Reasonable dilig en c e did not r equire Rudin to foresee the error in the post-conviction c ourt’s timeliness ruling —especially where,

as here, the stat e a c q u i e sced in the ex tension of time. See G i b b s , 767 F .3d at 890–91 (To ex pect a petitioner to file a federal petition w hile h er state proc e e d ing s are still pending “improperly raises the standar d f r om ‘reasonable’ to ‘max imum feasible’ dilig ence.” (quot i ng Holland

, 560 U.S. at 653)).

resp on s ib ility f

o r o b j ectin g to ex ten sio n s o f tim e, lest it “ l i e i n w ait

. . . an d o n l y t h ereaf

ter o p p o se a p etitio n as u n tim ely ”); see a lso Pliler 5 4 2 U .S. at 23 5 (O’ Co n n o r, J
., co n cu rrin g ) (p ro v id in g th e f if th v o te f o r th e

m aj o rity an d statin g th at “ if th e p etitio n er is af f irm ativ ely m i sl ed

, eith er b y th e co u rt o r b y th e S ta te , eq u itab l e to llin g m ig h t w ell b e ap p ro p riate” (em p h asis a d d e d )). S

o ssa ’ s reaso n in g i s ex plicitly in ten d ed to p ro t ect h a b eas p etitio n ers w

h o are “ af

f i rm ativ ely m isled ,” b y co u rts or p ro secu to rs, in to b eliev in g th eir p etitio n s h av e b een tim ely f iled

.

Sim ilarly

, th at S

o ssa d ealt w ith

th e in accu rate ex ten sio n

o f a f ed eral lim itatio n s perio d

, rath er th an a state lim itatio n s perio d

, is also im m aterial. B ecau se t h e f

ed eral lim i tatio n s p erio d is au to m atically ex t en d ed b y a

“ pro p erly f

iled ” state lim itatio n s p erio d

, 2 8 U .S.C. § 2 2 4 4(d )(2 ), a f ed eral h ab eas p etitio n er m ay b e en titled to eq u itab le to llin g w h ere, as h er e, a state co u rt erro n eo u sly e x ten d s th e state lim i tatio n s p erio d an d

, b y

ex ten sio n , th e f

ed eral statu t o ry

lim itatio n s p erio d

.R U D I N V

. M Y L E S 32

The post-convicti o n court’s timeliness finding was integ rated into a final adjudication o n December 31, 200 8
, when the state post-conviction relief court issued an order
g ranting Rudin’s state habeas petition. Rudin the r e f o r e continued to benefit from the post-conviction court’s finding of “ex traordinary circums t ances” until the Nevada Supreme Court reversed the g rant of habeas relief on J anuary 2 0, 2011.

F ollowing t h e post-conviction court’s initial finding o f

ex traordinary circumstances, Ru din dilig ently pursued her then-“properly filed” state petition, and pursued her rig hts in f ederal court promptly a f ter her state post-convicti o n p r o ceeding s were no long er pending

. See 28 U.S

. C

. § 2244(d)(2). Unlike the petitio n er in Pace
, 5 44 U.S. at 410–11, who waited o ver seven y ears after the f irst state court decision found his petition untimely

, Rudin waited only three months after the N evada Supreme C o u rt denied her relief—from J anuary 20 to April 25, 2011—before filing her federal p etition. Rudi n ’ s failure to file a protective petition in federal c ourt before her state p etition was deemed untimely

, in reliance first on the state post-conviction court’s timeliness finding and later on that court’s g rant of relief, did
not undermine Rudin’s dilig ent purs u i t of her rig hts. See Sossa
, 729 F .3d at 1 229, 1237 (holding petitioner entitled to equitable tolling w h ere he reasonably relied on a mag istrate judg e’s orders ex tending his habeas filing deadline).

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

ex c u sed Rudin’s delay and deemed her p etition “properly filed,” Rudin r emained e ntitled to statutory tolling in federal

c ourt. S ee Pace
, 544 U .S. a t 417. What’s more, o n c e t h e state post-conviction relief court g ranted Rudin’s petition for habeas relief, Rudin could n ot have filed a protective federal habeas petition that would have b e e n ripe for review.R U D I N V

. M Y L E S 33

B ecause Rudin prevailed in the state post-conviction court, she had no adverse ruling to challeng e in a federal p etition. Until the N evada Supreme Court ruled, Rudin could not have known w hether she would e v en need the intervention of the federal c ourts. F urther federal proceeding s w ould have been
unnecessary unless a

nd until the N evada Supreme Court reversed the g rant o f r elief. U nlike Pace
, where the state courts re p eatedly and consistently found petitioner’s filing s untimely

, Pace
, 544 U.S. at 410–11, no state court f ound Rudin’s petition untimely until the Nevada Supreme Court entered judg ment in J anuary 2011. To require Rudin to have anti cipated 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 w ould hold Rudin
to a standard h ig her than reasonable dilig ence. See Holland

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

* * * * *

I n sum, we conclude that Rudin has satisfied he r burden
to show that she is entitled to equitable tolling of the AEDPA limitations p e riod u ntil J a nuary 2 0, 2011, when the

ex traordinary circumstances ma king it impossible for her to file her federal petition o n time were removed. See Sossa
, 729 F

. 3d at 1229. After t h a t date, AEDPA’s o n e-y e ar limitations period resumed, g iving Rudin until September 9, 2011 to file her petition for federal habeas relief in the district
court. B ecause R u d i n filed her petition on April 25, 2011, within the tolled limitations p eriod, we conclude that her petition was timely

filed.R U D I N V

. M Y L E S 34

III. CONCLUSION

W e REVERSE the district court’s d ismissal o f R u d in’s
p etition a nd REMAND for further p roceeding s consis t e n t with this opinion. F or t h e r e asons ex plained earlier, we DENY the State’s motion to ex p and the record on appeal.

ADEL MAN, District J udg e, concurring :

I join the co u r t ’s o pinion in full. I add only that a contrary result would require “the essentially pointless early filing of federal petitions,” Brooks v

. W illiams

, No. 2:10-cv00045, 2 011 W L 1457739, at *4 (D. Nev. Apr. 14, 2011), b y prisoners who reasonably believe that the i r claims a re properly pending , unex hausted, in state courts. S e e G ibbs v

. Legrand

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

v

. D iGuglielmo

, 544 U.S. 4 08, 4 16 ( 2005) (indicating that a prisoner’s “ reasonable confusion about whether a state filing would be timely ” will ordinarily constitute g ood cause for a protective federal petition).

R equiring a protective filing would be p a rticularly pointless in this case. B y Aug u st 2 007, the federal h abeas
statute o f limitations had long sinc e r u n

. U nlike in Pace
, wher e t h e prisoner c o uld have filed a protective petition during the state post-convicti o n proceeding s but before the federal statute ran, in the present case a n y protective petition Rudin mig ht have filed after Aug ust 2007 would not have
pr o t ected a

ny thing

. S ee, e.g. , Urrizaga v. Attorney General for Idaho

, No

. C V

- 0 7-434, 2008 WL 1701735, at * 3 (D. I d a h o Apr. 9, 2008) (dismissing as untimely protecti v eR U D I N V

. M Y L E S 35

petition filed after the statute of limitations had already

ex p ired).

O’SCANNL AI

N, Circuit J udg e, dissenting :

I joined J u dg e Murg ui a ’ s o rig inal opinion for the Court, Rudin v

. Myles

, 766 F .3d 1161 (9th Cir. 2014), and reg ret that she has chang ed her view. She was rig ht then, and I believe her orig inal view is still correct. W e are all ag reed that Rudin is entitled to equitab l e t o l ling for the period b etween November 10, 2004 and Aug us t 2 2
, 2 007. See Majority at 26–29. During that time p eriod, Rudin f a c ed the

ex traordinary circumstance of bein g abandoned by her lawy er, Day

vid F ig ler, and dilig ently pursued h er r ig hts. See Holland v. Florida

, 5 6 0 U.S. 631, 652–54 (2010). However, I cannot join the Court’s new conclusion that Rudin is entitled
to e q u i t a b le tolling after Aug ust 22, 2007. I n my v iew, the
statute of limitations ex p ired o n April 1 1, 2008, over th r ee y ears before she filed the instant petition. 1 Theref o re, I respectfully

dissent.

I

Under AEDPA, “equitable tolling is available ‘only when

ex traordinary circumstances bey o nd a priso n e r ’ s control

1 A s th e m aj o rity p o in ts o u t , Ru d in is n o t en titled to eq u itab le to llin g b etw een Ju l y 1
, 2 0 0 4 —th e d ate th e A EDP A lim itatio n s p erio d b eg an to

ru n —an d No v em

b er 1 0
, 20 0 4 —th e d ate Fig l e r w a s ap p oin ted

. S ee Maj o rity at 2 6 . T h u s, as o f

A u g u s t 2 3 , 2 00 7 , Ru d in

h ad 2 3 2 d ay s to f

i le h er f ed eral petitio n

. W h en sh e f ailed to f ile b y A p ril 1 1
, 2 0 0 8
, th e statu te

o f lim itatio n s ex p ired

.R U D I N V

. M Y L E S 36

m a k e it impossible to file a petition on time and t h e

ex traordinary circumstances were t he cause of [ the
p r isoner’s] untimeliness.’” Sossa v. Diaz
, 729 F .3d 12 2 5
, 1229 (9th Cir. 2013) (emphasis in ori ginal) (quoting Bills v

. Clark

, 628 F .3d 1092, 109 7 ( 9 t h C i r. 2010)). And e ven if a prisoner can show such ex traordi n ary circumstances, she
must also demonst r ate that she pursued her rig hts with “reasonable dili ge n ce.” Holland

, 560 U.S. at 653. I ndeed, “the threshold necessary to trig g e r e q u itable tolling [under AEDPA] is very hig h, lest the ex ceptions swallow the rule.” Bills

, 628 F .3d at 1097. W ith these principles in mind, I turn to the relevant facts of this case.

I I

The majority asserts that the e v ents of a state court status conference, which took p lace on A u g ust 22, 2007, “affirmatively misled” Rudin with respect to the deadlines for her f ederal h abeas petition, Majority a t 3 0, and therefore holds that Rudin’s failure to f ile a timely federal petition may be ex cused. That conclusion, h owever, cannot be squared with the record or our precedents.

Even if the st a t u s c onference w ere an “ex traordinary circumstance” for AEDPA purposes, Rudin failed to act with

reaso n a b le dilig ence to protect her rig h ts. 2 On Aug ust 22, 2007, Rudin, her attorney , the prosecution, and the state postconviction court first became aware that F ig ler h a d n ever filed a post

- c o n v i ction petition in state court. The court

2 T h e m aj o rity

co n f lates th e co n cep ts o f

statu to ry to llin g an d eq u itab le
to llin g

. Here, t he r e i s n o d isp u te th at Ru d in is n o t en titled to statu to ry to llin g

. T h

u s, th e m aj o rity ’ s attem

p t t o r e c a s t a lo sin g statu to ry to llin g arg u m en t in

term s o f eq u itab le to l lin g is u n

p ersu asiv e.R U D I N V

. M Y L E S 37

informed the parties, however, that due to the “ex traordinary circumstances” of F ig ler’s failure to file, it would “ex tend the

one y e ar deadline” to file a state habe as petition. 3 B ased on

3 T h e m aj o rity

say s th at su ch a ru lin g , “ co u p led w ith th e state’ s fa ilu r e to brief th e tim elin ess q u estio n or m o v e to d ism iss Ru d i n ’ s p etitio n ,
‘ af f irm ativ ely m isled ’ Ru d in .” Maj o rity at 30 (em p h asis ad d ed )

. It is

u n clear, h o w ev er, w

h a t au th ority su

p p orts th e p o sitio n th at th e state’ s fa i lu r e to d o so m eth in g can am o u n t to a ffirma tive m islead i n g

. T h e

m aj o rity cites S

o ssa b u t S

o s s a a c t u a l l y su g g ests th at a state, as an

o p p o sin g p arty , h as n o au th o rity t o e x ten d th e statu to ry d ead lin e estab lish ed b y C o n g ress an d th eref o re th e state’ s actio n s (o r, in th is case, in actio n s) sh ou ld n o t in f

lu en ce th e p etitio n er. S

ee S o ssa , 7 2 9 F .3 d at 1 2 3 5

n .9 (citin g Jo h n so n v. Qu a rterma n , 4 83 F.3 d 27 8 (5 th Cir. 2 0 0 7 )). In an y

ev en t, th e state’ s f

ailu re to o b

j ect to th e tim elin ess q u estio n ap p lied to th e sta te p etitio n an d th u s w o u l d n o t af f ect R u d i n ’ s assessm en t o f h er fed era l
p etitio n

.

Fo r th at sam e reaso n , th e m aj o rity is in co rrect in rely in g o n S ossa to assert th at t

h e ev en ts o f th e A u g u st 2 2
, 2 0 0 7 co n f eren ce w ere an

ex trao rd in ary

circu m stan ce u n d er A EDP A . In So ssa , w e h eld th at w h en

a p riso n er is “ af

f irm ativ ely m isled ” by a f ed eral m ag istr a te j u dg e reg ard in g A EDP A ’ s d ead lin es, t h e p etitio n er m ay b e en titled t o eq u itab le
to llin g

. 7 2 9 F .3 d at 12 3 2 (citin g Pliler v. Fo rd

, 5 4 2 U.S. 2 2 5
, 2 3 5 (2 0 0 4) (O’ Co n n o r, J
., co n cu rrin g )). W e determ in ed th at w h en a fed

era l

m ag i strate j u d g e g ran t ed m u ltip le ex ten sio n s f

o r th e p riso n er to f

i l e h i s fed era l h ab eas petitio n , su ch ex ten sio n s ef f ectiv ely in stru cted t

h e p riso n er th at if h e f

o llo w ed th e co u rt’ s sch ed u le, h is fed era l f i l i n g w o u l d b e d eem ed tim ely

. Id

. at 1 2 35

.

I n co n t rast, t h e m aj o rity h ere f

o cu ses on a sta te co u rt’ s in stru cti o n reg ard in g a sta t e h ab eas p etitio n

. Un lik e S o ssa , n eith er th e p arties n or th e

co u rt d iscu ssed th e f

ed eral p etitio n

. T h

u s , rath er th an “ af

firm ativ ely

m isle[ad in g ] ” Ru d in in an y w ay as t o th e A EDP A statu te o f lim itatio n s, if an y th in g t h e statu s co n f

eren ce m ad e R

u d i n aw are th at h er state p etitio n h a d n o t b een p ro p erly f iled an d n o t if

i ed h er th at sh e sh o u l d f ile a p ro tectiv e f

ed eral p etitio n

. S

ee Pa ce v. DiGu g lielmo

, 54 4 U.S. 4 0 8, 4 1 6 (2 0 0 5).R U D I N V

. M Y L E S 38

these events, the m a

j ority makes the ex traordinary leap that Rudin was ex cused fro m d o i n g anything with respect to her federal petition for post-conviction relief for well over three
y ears. See Majority

at 30–31.

I n fact, however, Rudin was under a duty to pursue her rig hts dilig ently

. S

ee Ho l l a n d

, 560 U.S. at 653. As the majority r ecog niz es, as of the Aug ust 22, 2007 con f e rence, Rudin and her new attorney , Christopher Oram, were “put on notice of the fact that nothing h ad been ‘properly filed’ in either stat e o r f

ederal c o u rt on her behalf.” Majority at 30. W i t h such knowledg e, Rudin was n ot e x cused from taki n g action. Rather, she n eeded to act—with “reasonable dilig ence”—to preserve her r ig ht to c halleng e her conviction. See Holland

, 560 U.S. at 653. I ndeed, the Supreme Court has spelled out precisely what steps Rudin should have t a k e n a s

soon as she a

nd Oram were aware that there were potential timeliness issues with the state petition.

I n Pace v. D iGuglielmo

, the Court instructed that if a state prisoner is faced with uncertainty a b o ut whether her state post-conviction petition is timely

, she should “ f i l [ e] a ‘protective’ petition in f

e d e r al court and ask[ ] the federal
court to stay and abey the f ed er a l habeas proceeding s until
state r emedies are ex hausted.” 544 U.S. at 4 1 6 ; see also Lakey v. Hickman

, 633 F .3d 782, 787 ( 9th Cir. 2 0 11) (“ Pace

Mo reo v er, th e m aj o rity d o es n o t ex plain w h at in a ccu ra cy actu al ly af f irm ativ ely m isled Ru d in

. S o ssa h o ld s th at “ ‘ [i]n o rd er to sh o w th at h e

w a s af f irm ativ ely m isled

, [a h ab eas p etitio n er] n eed [s] to p o in t to s o m e in accu racy in th e d istrict co u rt’ s i n st r u c t i o n s ’ to h im

, n ot m erely to h is

‘ m isu n d erstan d in g o f accu rate in f o r m a t i o n .’ ” So ssa , 7 2 9 F.3 d at 1 2 3 3 (q u o tin g F

o rd

, 59 0 F.3 d at 7 8 8 ). W h ereas S o ssa id en tif

ied su ch an in accu racy , see id

. , Ru d i n —an d t h e m aj ority

—can n o t. S

o ssa , in sh o rt, d o es n o t g o v ern h ere.R U D I N V

. M Y L E S 39

also ex plicitly

advised state prisoners . .

. to file a protective federal petition to avoid a po s s i b l e timeliness bar.”). Rudin
not only failed to file such a protective petition, she failed to file any thing in federal court over the nex t three y ears.

The maj o rity ’s bare assertion that Rudin dilig ently pursued her r ig hts d o e s n o t make it so. That “Rudin waited only three months after the Nevada Supreme Court denied her relief—from J anuary 20[
, 2011] to April 25, 2 01 1

— before filing her federal petition” is c o mpletely beside the point. Majority at 32. I ndeed, ev e n i f t he Aug ust 22, 2007 conference were an “ex traordinary circumstance” that would qualify f or equitable tolling purposes, Rudin must still show she acted w ith reasonable dilig ence b etween Aug ust 22, 2007 and April 25, 2011. See Pace
, 544 U.S. at 418. The majority fails to d emonstrate—nor could it, in lig h t o f the record—how Rudin acted with reaso n able dilig ence for the duration of the relevant time period.

The A ug ust 22, 2007 conference did n ot ex cuse Rudin from acting

, but rather armed her with k nowledg e that should have spurred h er to protect her rig hts. Rudin did not file
any thing in federal court until Apr i l 2 5, 2011, over three
y ears and eig ht months later. “Such a delay d oes not demonstrate the dilig ence required for application o f equitable tolling

. ” W

h i te v. Martel

, 601 F

. 3 d 882, 885 (9th Cir. 20 1 0). T hus, e ven if the status conference were an

ex traordinary

circumstance, as the majority asserts, Rudin is not entitled to equitable tolling bey ond that date.

I I I

F or the foreg oing reasons, I would affirm the judg ment o f the district court.