Summary
The Ninth Circuit reversed the dismissal of Gladys Perez’s 28 U.S.C. § 2254 habeas petition as untimely and remanded for consideration of the merits. The court held that abandonment and misconduct by Perez’s post-conviction counsel, combined with prison-related obstacles, constituted extraordinary circumstances supporting equitable tolling of AEDPA’s one-year limitations period. Judge Bade dissented, concluding that Perez had not shown reasonable diligence or that the circumstances caused the late filing.
Topics
Practice areas
Questions Presented
- Whether Perez was entitled to equitable tolling of AEDPA’s one-year limitations period because post-conviction counsel abandoned her and failed to provide information and case materials necessary to pursue federal habeas relief.
- Whether Perez acted with reasonable diligence before, during, and after the alleged extraordinary circumstances.
- Whether prison officials’ delay in processing Perez’s financial certificate constituted an additional extraordinary circumstance contributing to the untimely filing.
Holdings
- Appointed post-conviction counsel’s abandonment and pervasive misconduct constituted an extraordinary circumstance that prevented Perez from timely filing her federal habeas petition. Counsel’s failure to communicate, failure to inform Perez of the AEDPA deadline, and failure to provide relevant state-court orders and her legal file continued to impede timely filing even after Perez began proceeding pro se.
- Perez acted with reasonable diligence before, during, and after the extraordinary circumstances. She promptly pursued state post-conviction relief, repeatedly attempted to contact counsel, began preparing a pro se federal petition after recognizing counsel’s abandonment, sought necessary records and library access, requested a financial certificate, and filed as soon as prison procedures permitted.
- The prison’s delay in processing Perez’s requested financial certificate was an additional extraordinary circumstance that contributed to her seven-day late filing.
Key quotations
“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.”” (10)
“For a litigant to demonstrate he has been pursuing his rights diligently . . . 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.” (25-26)
“We reverse and remand for further proceedings consistent with this opinion.” (33)
Factual background
Perez’s Nevada conviction became final on May 24, 2012. After filing a state post-conviction petition, she learned in December 2013 that the petition had been denied and repeatedly instructed appointed counsel Bret Whipple to appeal, but he failed to communicate with her, inform her of the federal AEDPA deadline, or provide relevant case materials. Perez began preparing a pro se federal habeas petition in September 2014, but faced limited prison law-library access, incomplete access to her file, and delays in obtaining a required financial certificate. She filed the federal petition on December 8, 2014, seven days after the December 1 deadline.
Procedural history
Perez was convicted in Nevada state court and later filed a state post-conviction petition. After the state petition was denied and her appointed post-conviction counsel failed to communicate or pursue an appeal, Perez prepared and filed a federal habeas petition pro se. The district court denied equitable tolling and dismissed the petition with prejudice as untimely. The Ninth Circuit reversed and remanded for consideration of the petition’s merits.
Remand instructions
The district court must consider the merits of Perez’s federal habeas petition in light of the equitable tolling ruling.