Spitsyn v. Moore

• Decision Date: 03 October 2003
• Docket Number: No. 02-35543.,02-35543.
• Citation: 345 F.3d 796
• Parties: Sergey Spitsyn, Petitioner-Appellant, v. Robert Moore, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

345 F.3d 796

Sergey Spitsyn, Petitioner-Appellant, v. Robert Moore, Warden, Respondent-Appellee.

No. 02-35543.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 5, 2003 — Seattle, Washington.

Filed October 3, 2003.

As Amended November 3, 2003.

Rita J. Griffith, Seattle, Washington, for the petitioner-appellant.

John J. Samson, Assistant Attorney General, Olympia, Washington, for the respondent-appellee.

Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-01-05567-FDB.

Before: Arthur L. Alarcón, Ronald M. Gould, and Richard R. Clifton, Circuit Judges.

OPINION

CLIFTON, Circuit Judge:

Sergey Spitsyn appeals from the district court's dismissal of his petition for habeas corpus relief under 28 U.S.C. § 2254 as untimely. He argues that the deadline for filing his petition should be subject to equitable tolling because the delay in filing resulted from an "extraordinary circumstance" beyond his control, specifically his attorney's misconduct. Based upon the unique facts of this case, where an attorney was retained to prepare and file a petition, failed to do so, and disregarded requests to return the files pertaining to petitioner's case until well after the date the petition was due, we agree that equitable tolling of the deadline is appropriate. We vacate the dismissal and remand the matter to the district court for further proceedings.

I. BACKGROUND

Spitsyn was convicted of murder in the second degree in Washington state court and was sentenced to 164 months' imprisonment. Spitsyn appealed to the Washington Court of Appeals, which affirmed the conviction in an unpublished opinion on April 16, 1999. The Washington Supreme Court denied review on November 2, 1999. Spitsyn did not thereafter file a petition for a writ of certiorari with the United States Supreme Court.

The Antiterrorism and Effective Death Penalty Act of 1996 requires a state prisoner to seek federal habeas corpus relief within one year after the state conviction becomes final. 28 U.S.C. § 2244(d); Brambles v. Duncan, 330 F.3d 1197, 1201 (9th Cir.2003), amended in other respects by 342 F.3d 898 (9th Cir.2003). The period of "direct review" after which the state conviction becomes final under 28 U.S.C. § 2244(d)(1)(A) includes the 90-day period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, even if the petitioner does not actually file such a petition. Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.1999). Because the Washington Supreme Court denied review on November 2, 1999, the period of direct review ended 90 days later, on January 31, 2000. Thus, the deadline for Spitsyn to file a petition for writ of habeas corpus in federal court was one year after that, or January 31, 2001.

On February 3, 2000, nearly a full year before that deadline, Spitsyn's mother, Lyudmila Spitsyna, hired attorney Robert Huffhines to file a petition for writ of habeas corpus on her son's behalf, and paid him $2,000 to do so. After a period of inactivity, Ms. Spitsyna wrote to Huffhines to inquire about the case on March 23, 2000 and, again, on November 29, 2000. Spitsyn himself, who was in prison, also wrote Huffhines on December 12, 2000 to complain. Spitsyn and his mother also contacted the Washington State Bar Association and filed grievances against Huffhines on January 3 and January 5, 2001, respectively. On January 15, 2001, Spitsyn wrote to Huffhines once more, this time indicating that the representation had been terminated and requesting that Huffhines return the file for Spitsyn's case.

Huffhines never filed Spitsyn's petition. The January 31, 2001 deadline passed with no filing by or on behalf of Spitsyn. On February 13, 2001, after the deadline had passed, Huffhines finally responded with a letter expressing regret for not following through with the case and returned the Spitsyns' payment. Huffhines did not return Spitsyn's file until April 4, 2001, almost three months after Spitsyn requested it, more than two months after the limitations period had run, and not until after a disciplinary investigation was commenced by the bar. The Washington State Bar Association ultimately reprimanded Huffhines for violating state Rules of Professional Conduct 1.3(requiring lawyers to act with reasonable diligence in representing clients) and 1.4(a) and (b)(requiring lawyers to keep their clients reasonably informed about the status of their matters and to explain the matters to the extent reasonably necessary for clients to make informed decisions).

Proceeding pro se, Spitsyn finally filed his habeas petition with the district court on September 25, 2001, some 226 days after the statute of limitations had run. Thus, absent tolling of the statute of limitations, Spitsyn's petition was untimely. The district court dismissed the petition for that reason. The district court then denied Spitsyn's motion for a certificate of appealability.

This court granted Spitsyn a certificate of appealability "as to the issue whether the district court erred by dismissing the petition as untimely under 28 U.S.C. § 2244(d)(1), including the question whether appellant was entitled to equitable tolling." We also appointed counsel to represent him in this appeal.

II. STANDARD OF REVIEW

The dismissal of a petition for writ of habeas corpus as time-barred is reviewed de novo. Brambles, 330 F.3d at 1201. If the facts underlying a claim for equitable tolling are undisputed, the question of whether the statute of limitations should be equitably tolled is also reviewed de novo. Id. Otherwise, findings of fact made by the district court are to be reviewed for clear error. Miles v. Prunty, 187 F.3d 1104, 1105(9th Cir.1999).

III. DISCUSSION

We have held that the one-year statute of limitations for filing a habeas petition may be equitably tolled if "extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time." Brambles, 330 F.3d at 1202. The prisoner must show that the "extraordinary circumstances" were the cause of his untimeliness." Stillman v. LaMarque, 319 F.3d 1199, 1203 (9th Cir. 2003) (petitioner entitled to equitable tolling "since prison officials' misconduct proximately caused the late filing."). Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir.2000)(holding that the prisoner is required "to demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing"). Equitable tolling is justified in few cases, though. "Indeed, the threshold necessary to trigger equitable tolling [under AEDPA] is very high, lest the exceptions swallow the rule." Miranda v. Castro, 292 F.3d 1063, 1066 (9th Cir.2002) (internal quotation marks and citation omitted). Spitsyn "bears the burden of showing that this extraordinary exclusion should apply to him." Id. Determining whether equitable tolling is warranted is a "fact-specific inquiry." Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir.2001) (citing Whalem/Hunt v. Early, 233 F.3d 1146, 1148 (9th Cir.2000) (en banc)).

The cases in which we have to date concluded that equitable tolling of the limitations period under AEDPA for filing a habeas petition is appropriate have not involved attorney misconduct. Rather, we have, for example, tolled the deadline for filing a habeas petition when a district court permitted a petitioner to dismiss a petition without prejudice, in order to exhaust certain claims in state court, without advising the petitioner that because the one-year limitations period for his federal habeas petition had already expired, any later effort to refile in federal court would be untimely. Brambles, 330 F.3d at 1203. We have also held that equitable tolling was appropriate when a district court incorrectly dismissed a petition filed by a pro se prisoner for reasons of form and then subsequently lost the body of his petition when he sought to refile it. Corjasso v. Ayers, 278 F.3d 874, 878 (9th Cir.2002). Failures on the part of prison officials to prepare a check for the filing fee or to obtain a petitioner's signature have also been held to constitute "extraordinary circumstances" beyond the petitioner's control that have warranted equitable tolling. Miles, 187 F.3d at 1107; Stillman, 319 F.3d at 1202.

We have not applied equitable tolling in non-capital cases where attorney negligence has caused the filing of a petition to be untimely.¹ In Frye v. Hickman, we considered a petition which was late because petitioner's attorney miscalculated the statute of limitations deadline. We held that "the miscalculation of the limitations period by Frye's counsel and his negligence in general do not constitute extraordinary circumstances sufficient to warrant equitable tolling." 273 F.3d at 1146. Less than a year later, we reached a similar conclusion in Miranda v. Castro. The petitioner in that case had been given erroneous information by the attorney serving as his appointed counsel for his direct appeal as to the deadline for filing a habeas petition, and he subsequently filed his habeas petition after the actual limitations period had run. The opinion reiterated Frye's holding that counsel's miscalculation and negligence in general do not constitute "extraordinary circumstances" sufficient to warrant equitable relief and cited numerous sister circuit decisions in accord with this position. 292 F.3d at 1068.

Though ordinary attorney negligence will not justify equitable tolling, we have acknowledged that where an attorney's misconduct is sufficiently egregious, it may constitute an "extraordinary circumstance" warranting equitable tolling of AEDPA's statute of limitations. Ford v. Hubbard, 330 F.3d 1086, 1106 (9th Cir.2003) ("there are instances in which an attorney's failure to take necessary steps to protect his client's interests is so...