by David Kim

The United States Court of Appeals for the Ninth Circuit reversed the U.S. District Court for the District of Nevada’s dismissal of a federal habeas petition as untimely, holding that equitable tolling applied under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) where the petitioner’s attorney abandoned her by failing to communicate for nine months and failing to inform her of the filing deadline; where prison officials delayed processing necessary filing documents; and where the petitioner acted with reasonable diligence throughout by making repeated attempts to contact her attorney and filing within seven days of the deadline despite significant obstacles.

Background

Gladys Perez’s criminal conviction was affirmed by the Nevada Supreme Court in September 2011. Her conviction became final on May 24, 2012, when the time for seeking U.S. Supreme Court review expired, triggering the one-year AEDPA limitations period under 28 U.S.C. § 2244(d)(1). She filed a pro se state post-conviction habeas petition on August 22, 2012, after 89 days of the federal limitations period had elapsed. The AEDPA limitations period stopped running during the pendency of proceedings. See 28 U.S.C. § 2244(d)(2).

The state court appointed attorney Bret Whipple to represent her. On December 5, 2013, the court orally denied the petition. A written order and Notice of Entry of Order were filed and sent to Perez on January 14 and January 21, 2014, respectively. The notice explained that Perez had until February 24, 2014, to appeal, and if no appeal was filed, the federal habeas deadline would be December 1, 2014. When the AEDPA clock restarted after state proceedings ended, 276 days remained.

In an affidavit filed on December 15, 2014, Perez stated that she repeatedly asked Whipple to appeal, expressing that she was fighting for her life and wanted to continue fighting her case. She was told Whipple would send a letter about her options, but she never received any such letter. Between March and August 2014, she made 15 attempts to reach Whipple by phone, seeking updates about the appeal and requesting case documents, including the written order denying her petition. Whipple never responded. Despite her attorney’s silence, Perez had no independent reason to believe Whipple had not filed an appeal. Had he done so, the AEDPA limitations period would have been tolled, but Whipple never filed an appeal.

After these unsuccessful attempts, Perez began pursuing the case on her own in mid-September 2014. On September 25, 2014, she filed a pro se notice of appeal, unaware the deadline had passed.

Staffing issues severely hampered Perez’s efforts. The designated prison law librarian position had been vacant since before fall 2014, and the law library only opened sporadically when substitute staff was available. Perez relied on an inexperienced fellow inmate serving as law library clerk, and they lacked complete federal habeas forms and instructions. With the library rarely open, they worked mostly in their cells. Perez could not access her complete file, which filled at least eight boxes, because Whipple failed to furnish his portion and prison rules limited prisoners to one legal box in their cells. The state court never responded to her November 15, 2014, request for a copy of the order denying her petition.

Beginning in mid-November 2014, Perez repeatedly requested a financial certificate she believed was required for filing. Despite assurances it was completed, delays in processing by Inmate Banking continued. On December 1, she requested an urgent law library appointment to mail her petition by December 5, but the library’s closure forced rescheduling to December 8. Prison policy required legal mail be sent through the library.

Perez filed her federal habeas petition on December 8, 2014, without the financial certificate, seven days past the December 1, 2014, deadline. After limited discovery on Whipple’s conduct, the District Court denied equitable tolling and dismissed the petition with prejudice as untimely on February 2, 2022. Perez timely appealed.

Analysis

The Court reviewed de novo the District Court’s denial of equitable tolling. To qualify for equitable tolling under AEDPA, a petitioner must show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U.S. 631 (2010). The Court noted that “the grounds for granting equitable tolling are … highly fact-dependent,” Rudin v. Myles, 781 F.3d 1043 (9th Cir. 2015), and addressed the two requirements in reverse order because “the facts of this case lend themselves better to that treatment.” See Gibbs v. Legrand, 767 F.3d 879 (9th Cir. 2014).

Extraordinary Circumstances

The Court explained that in evaluating whether an extraordinary circumstance prevented timely filing, courts are not bound by mechanical rules and must decide based on all circumstances. Smith v. Davis, 953 F.3d 582 (9th Cir. 2020) (en banc). Extraordinary circumstances incorporate a causation requirement assessed against the standard of reasonable diligence. The Court emphasized that this “does not impose a rigid ‘impossibility’ standard on litigants, and especially not on ‘pro se prisoner litigants – who have already faced an unusual obstacle beyond their control during the AEDPA limitation period.’” Smith (quoting Fue v. Biter, 842 F.3d 650 (9th Cir. 2016) (en banc)). Reasonable diligence is “not maximum feasible diligence.” Holland.

While ordinary attorney negligence generally does not constitute an extraordinary circumstance, sufficiently egregious attorney misconduct may warrant equitable tolling. Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003). Under Holland, attorney abandonment may give rise to extraordinary circumstances. Rudin. The Court determined that Whipple’s abandonment and pervasive misconduct constituted an extraordinary circumstance that prevented Perez from filing her federal habeas petition in a timely manner.

The Court discussed relevant circuit precedent. In Rudin, court-appointed counsel’s unresponsiveness, failure to provide updates or respond to file requests, and eventual placement of a collect call block stopping all communication constituted abandonment. The Rudin Court concluded counsel made himself “all but impossible to reach” and “failed to inform Rudin of the reasons for his delay, providing her no clue of ‘any need to protect herself pro se,’” creating an extraordinary circumstance. Rudin (quoting Maples v. Thomas, 565 U.S. 266 (2012)). In Gibbs, abandonment occurred where counsel guaranteed updates but never notified the petitioner of the state court’s decision and ignored multiple letters. In Holland, counsel failed to file despite requests, failed to inform Holland about proceedings despite pleas, and failed to communicate despite attempts to contact him. The Court explained that an attorney’s failure to communicate about a key development can constitute an extraordinary circumstance, particularly where it implicates the client’s ability to bring further proceedings.

The Court concluded Whipple’s conduct amounted to an extraordinary circumstance that caused Perez’s delayed filing, noting the facts “strongly resemble (and in some ways are more egregious than) the extraordinary circumstances found in Rudin, Gibbs, and Holland.” Between December 2013 and September 2014, Perez reasonably relied upon Whipple to pursue the appeal she repeatedly instructed him to file. Though Whipple promised a letter explaining her options, he never followed through. Perez called repeatedly, but Whipple never responded. For approximately nine months, Perez remained in the dark. These circumstances left her with “no clue of ‘any need to protect herself pro se.’” Rudin. While Perez theoretically could have contacted the state court, she was under no obligation given her representation and reasonable expectation of being kept informed. Gibbs.

The Court stated that although Perez suspected abandonment by September 14, 2014, and began working on a pro se petition, the extraordinary circumstances persisted. Whipple’s misconduct continued preventing timely filing for two reasons. First, Whipple never informed Perez of the AEDPA deadline. While mere miscalculation cannot produce an extraordinary circumstance, Holland, Whipple had “an ethical duty to take ‘steps to the extent reasonably practicable to protect [Perez’s] interests’ if he had ceased representing [her].” Gibbs (quoting Nevada Rule of Professional Conduct 1.16(d)). Additionally, Whipple affirmatively promised to inform Perez of her options. Fulfilling either obligation would have necessarily included discussing the deadline. Whipple also failed to provide written court orders despite requests, making it nearly impossible to calculate the deadline. The Court explained that “a prisoner’s lack of knowledge that the state courts have reached a final resolution of his case can provide grounds for equitable tolling.” Gibbs.

Second, Whipple failed to return Perez’s case file. The Ninth Circuit has held that “a complete lack of access to a legal file may constitute an extraordinary circumstance, [because] … it is unrealistic to expect a habeas petitioner to prepare and file a meaningful petition on his own within the limitations period without access to his legal file.” Gibbs.

In addition to Whipple’s abandonment, Perez faced another extraordinary circumstance: the prison’s handling of her financial certificate. Weeks before the deadline, Perez requested the required certificate. Grant v. Swarthout, 862 F.3d 914 (9th Cir. 2017) (prison officials’ delay in processing documents necessary for filing can constitute an extraordinary circumstance). The prison erroneously told her the request was done. She renewed her request, and on December 1, it went to Inmate Banking. Days later, the certificate remained in limbo. By December 8, when Perez filed, the certificate was still unavailable.

Considering Whipple’s abandonment, his continued misconduct, and filing obstacles imposed by the prison, the Court concluded Perez faced extraordinary circumstances preventing timely filing through at least December 1, 2014.

Reasonable Diligence

The Court observed that for a litigant to demonstrate diligent pursuit of rights, “he must show that he has been reasonably diligent in pursuing his rights not only while an impediment to filing caused by an extraordinary circumstance existed, but before and after as well, up to the time of filing his claim in federal court.” Smith. The standard is “reasonable diligence, not maximum feasible diligence.” Holland. The Court assessed Perez’s diligence at each stage of her case.

Pre-Obstacle Diligence. Within three months of her conviction becoming final, Perez filed a pro se state habeas petition, stopping the AEDPA clock. That showed sufficient pre-obstacle diligence, according to the Court. See Grant (noting a petitioner is entitled to use the full one-year period and need not anticipate extraordinary circumstances).

Diligence Simultaneous with the Obstacle. The Court stated that following her state petition’s denial, Perez continued acting diligently by instructing her attorney to appeal. Had Whipple done so, Perez would have been entitled to statutory tolling. She cannot be faulted for not independently pursuing pro se relief while represented by counsel she “reasonably [] believed … was going to assist [her] in federal court.” Gibbs.

Additionally, Perez made extensive efforts to contact her attorney. From March to August 2014, Perez called Whipple’s office 15 times seeking clarity on her appeal’s status. The steps were virtually identical to those in Rudin, where repeated contact attempts were determined to be reasonably diligent, the Court reasoned. The District Court found Perez’s effort lacking because she did not contact the Nevada Supreme Court. The Ninth Circuit rejected such an argument in Gibbs, explaining that while technically possible, a petitioner has “no obligation or reason to do so, given that he was represented and had, moreover, been specifically promised by his lawyer prompt notice of any decision.”

Post-Obstacle Diligence. Following Whipple’s abandonment, Perez continued exercising reasonable diligence, according to the Court. Between September 14 and December 8, 2014, Perez took prompt and consistent steps to prepare the petition, making repeated requests for necessary materials, seeking several law library appointments, and working in her cell with limited materials.

Perez was also diligent seeking a financial certificate, making her first request 19 days before the deadline, more diligent than the petitioner in Grant who waited until seven days before. Perez declared she did not know when her petition was due, and nothing in the record suggested otherwise. The State conceded Perez probably did not know the actual deadline.

In just over three months, Perez put together and filed a petition without counsel, without complete file access, without consistent library access, and without prompt prison action. The Court concluded that under these circumstances, her near miss did not constitute unreasonable delay.

Conclusion

The Court concluded that Perez acted with reasonable diligence before, during, and after the extraordinary circumstances that impeded her filing. Because Perez satisfied both requirements for equitable tolling under Holland – extraordinary circumstances and reasonable diligence – her federal habeas petition should not have been dismissed as untimely.

Accordingly, the Court reversed and remanded. See: Perez v. Reubart, 150 F.4th 1164 (9th Cir. 2025).

Editor’s note: Anyone interested in equitable tolling of AEDPA’s one-year statute of limitations in connection with an untimely habeas petition under § 2254 is encouraged to read the Court’s full opinion.  

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