Margaret Rudin v. Carolyn Myles, et al

Filing

FILED OPINION (DIARMUID F. O'SCANNLAIN, MARY H. MURGUIA and LYNN S. ADELMAN) Because that is so, we must AFFIRM the district court s dismissal with prejudice of Rudin s application. For the reasons explained earlier, we DENY the State s motion to expand the record on appeal. Judge: MHM Authoring, Judge: LSA Dissenting. FILED AND ENTERED JUDGMENT. [9234499]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MARGARET RUDIN,
Petitioner-Appellant,
v.

No. 12-15362
D.C. No.
2:11-cv-00643RLH-GWF

CAROLYN MYLES; ATTORNEY
GENERAL OF THE STATE OF NEVADA,
Respondents-Appellees.

OPINION

Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Argued and Submitted
February 11, 2014—San Francisco, California
Filed September 10, 2014
Before: Diarmuid F. O’Scannlain and Mary H. Murguia,
Circuit Judges, and Lynn S. Adelman, District Judge.*
Opinion by Judge Murguia;
Dissent by Judge Adelman

*

The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.

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RUDIN V. MYLES
SUMMARY**

Habeas Corpus
The panel affirmed the district court’s order dismissing as
untimely Nevada state prisoner Margaret Rudin’s 28 U.S.C.
§ 2254 habeas corpus petition challenging her conviction of
murder with the deadly use of a weapon and unauthorized
surreptitious intrusion of privacy by listening device.
The panel held that because the Nevada State Supreme
Court concluded that Rudin’s state post-conviction petition
was untimely under state law, Rudin is not entitled to
statutory tolling under 18 U.S.C. § 2244(d)(2) for the duration
of her state post-conviction proceedings.
The panel held that extraordinary circumstances
prevented Rudin from filing her application for federal habeas
relief, and that she is therefore entitled to equitable tolling of
the AEDPA statute of limitations, between November 10,
2004, and August 22, 2007—during which period the first
attorney appointed to represent Rudin in collateral review
proceedings abandoned her, and during which period she was
diligent in pursuing her rights.
The panel held that Rudin is not entitled to equitable
tolling after the point, August 22, 2007, at which the parties
and her subsequent appointed counsel first became aware that
prior counsel had never filed a post-conviction petition in
state court, through April 25, 2011, when counsel applied for
**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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habeas relief in federal court, during which period Rudin
failed to act diligently to protect her rights.
Dissenting, District Judge Adelman concluded that, on the
egregious facts of this case, the doctrine of equitable tolling
is sufficiently expansive to provide Rudin with access to the
federal courts.

COUNSEL
Christopher Oram, Las Vegas, Nevada, for PetitionerAppellant.
Jamie J. Resch (argued), Senior Deputy Attorney General,
and Catherine Cortez Masto, Attorney General, Office of the
Attorney General, Las Vegas, Nevada, for RespondentsAppellees.

OPINION
MURGUIA, Circuit Judge:
The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) establishes a one-year period of limitation
within which an individual seeking relief must file an
application for a writ of habeas corpus. See 28 U.S.C.
§ 2244(d)(1). Once that one-year period begins to run, it may
be tolled only in certain circumstances. See id. § 2244(d)(2)
(providing for statutory tolling); Holland v. Florida, 130 S.
Ct. 2549, 2554 (2010) (providing for equitable tolling). The
question this case presents is whether Petitioner Margaret
Rudin is entitled to statutory or equitable tolling of the

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AEDPA limitations period, excusing her six-year delay in
filing her application. We conclude, albeit not without pause,
that she is not entitled to statutory or equitable tolling
sufficient to excuse her delay. We therefore affirm the
district court’s order dismissing Rudin’s application as
untimely.
I. FACTS
The facts giving rise to this appeal are essential to our
tolling analysis. We therefore describe those facts in more
detail than we otherwise might.
A. Rudin’s Criminal Trial and Direct Appeal Proceedings
In April 1997, Petitioner Margaret Rudin was charged
with murder with the use of a deadly weapon and
unauthorized surreptitious intrusion of privacy by listening
device, both in violation of Nevada state law. See Nev. Rev.
Stat. §§ 200.010; 193.165; 200.650. Those charges arose out
of the death of Rudin’s husband Ron, whose charred remains
had been discovered in Lake Mojave a few years earlier. See
Rudin v. State, 86 P.3d 572, 577 (Nev. 2004). After pleading
not guilty to both charges, Rudin retained the services of a
private attorney, Michael Amador, to represent her at trial.
Her trial began in the Eighth Judicial District Court of the
State of Nevada (the “trial court” or the “court”) on March 2,
2001.
Two-and-a-half weeks before trial commenced, it became
clear to the court that Amador alone could not adequately
defend Rudin. After a series of pretrial delays, the court
appointed attorney Thomas Pitaro to assist Amador with
Rudin’s defense. Pitaro quickly realized that Amador had not

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yet reviewed “thousands of pages of discovery,” and Pitaro
soon became “concerned about the preparation that had been
done for the trial.” Amador had not, for example,
interviewed critical witnesses. As a result, the defense team
would learn, for the first time at trial, the content of various
witnesses’ testimony. In at least one instance, when a witness
was called to the stand, Pitaro “went to get from Mr. Amador
the [witness’s] file and found nothing inside.” As Pitaro
would later describe, “the preparation that [one] would hope
normally would be done before trial starts was being done
during the trial.”
But even with Pitaro’s help, Rudin’s trial was replete with
alleged errors and professional misconduct on the part of the
defense team. Amador, for example, began with an opening
statement that had “no cohesive theme.” Over the course of
trial, Amador was accused of creating a prejudicial conflict of
interest by allegedly negotiating agreements for the literary
and media rights to his representation. Rudin, 86 P.3d at
587–88. His general lack of preparation prompted Rudin
twice to move for a mistrial, but both of her motions were
denied. Id. at 579–80, 585–86. Pitaro, who was appointed
after Amador’s opening statement, described the
representation as “ ‘a farce, and that disturbs me as an
attorney. . . . This has become a sham, a farce and a
mockery.’ ”1 Id. at 590 (Rose, J., dissenting).
A jury convicted Rudin on both charges. For her
conviction for murder with the use of a deadly weapon, the
trial court imposed a sentence of life imprisonment with a

1

By the time Rudin’s trial ended, the court had actually appointed a
third attorney, John Momot, to assist with the defense. Rudin, 86 P.3d at
580.

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possibility of parole after twenty years. For her conviction
for unauthorized surreptitious intrusion of privacy by a
listening device, the court imposed a one-year sentence, to
run concurrently with Rudin’s life sentence. Rudin’s
judgment of conviction was entered on September 17, 2001.
On April 1, 2004, the Nevada Supreme Court affirmed
both of Rudin’s convictions on direct appeal. See Rudin v.
State, 86 P.3d 572 (Nev. 2004). The court concluded that
Amador’s alleged conflict of interest and ineffectiveness,
while sufficient to cause “concern,” “must be examined in a
separate post-conviction proceeding at which time Rudin’s
post-conviction attorney will examine the entire record,
interview all relevant witnesses and present the matter to the
district court for a full and complete airing and decision.” Id.
at 588.2 The Nevada Supreme Court’s remittitur issued on
April 27, 2004, and Rudin did not seek a writ of certiorari
from the U.S. Supreme Court. The deadline for her to do so
was June 30, 2004.3

2

Two of the six justices dissented. They concluded that
there is sufficient evidence in the record, without the
necessity of post-trial proceedings, to establish that the
defense was totally unprepared to try this case and that
Amador had a substantial conflict of interest with his
client. This was prejudicial to Rudin, and the result
reached was unreliable.

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

Rudin had ninety days from the date of the Nevada Supreme Court’s
decision, which was issued on April 1, 2004, to petition for a writ of
certiorari. Sup. Ct. R. 13(3).

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B. Rudin’s Petitions for Collateral Relief
Around the time that appellate review of Rudin’s
judgment of conviction concluded, two statutes of limitation
began to run, both relating to her ability to seek collateral
review of the errors that she alleged had affected her
underlying criminal trial. The first limitations period is
defined by state law and requires, except under certain
circumstances, that a state-court petition for post-conviction
relief be filed within one year of the Nevada Supreme Court
issuing its remittitur:
Unless there is good cause shown for delay, a
petition that challenges the validity of a
judgment or sentence must be filed within 1
year after entry of the judgment of conviction
or, if an appeal has been taken from the
judgment, within 1 year after the Supreme
Court issues its remittitur. For the purposes of
this subsection, good cause for delay exists if
the petitioner demonstrates to the satisfaction
of the court:
(a) That the delay is not the fault of the
petitioner; and
(b) That dismissal of the petition as untimely
will unduly prejudice the petitioner.
Nev. Rev. Stat. § 34.726(1). The second limitations period is
defined by AEDPA, and it also establishes a one-year
deadline for a state prisoner seeking a federal writ of habeas
corpus. 28 U.S.C. § 2244(d)(1). The AEDPA limitations
period runs from the latest of four specified dates:

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(1) A 1-year period of limitation shall apply to
an application for a writ of habeas corpus by
a person in custody pursuant to the judgment
of a State court. The limitation period shall
run from the latest of–
(A) the date on which the judgment
became final by the conclusion of direct
review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to
filing an application created by State
action in violation of the Constitution or
laws of the United States is removed, if
the applicant was prevented from filing by
such State action;
(C) the date on which the constitutional
right asserted was initially recognized by
the Supreme Court, if the right has been
newly recognized by the Supreme Court
and made retroactively applicable to cases
on collateral review; or
(D) the date on which the factual predicate
of the claim or claims presented could
have been discovered through the exercise
of due diligence.

Id. The AEDPA limitations period may be tolled if a
petitioner “properly file[s]” a petition for post-conviction
relief in state court; where that occurs, the limitations period

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will be tolled for the time during which the state-court
petition is pending. Id. § 2244(d)(2).
Thus, from the date on which the Nevada Supreme Court
issued its remittitur, which was April 27, 2004, Rudin had
one year, or until April 27, 2005, to file a petition for postconviction relief in state court. And from the date on which
the deadline passed for seeking a writ of certiorari from the
U.S. Supreme Court, which was June 30, 2004, she had one
year, or until June 30, 2005, to file an application for a writ of
habeas corpus in federal court. If Rudin were “properly” to
file her state post-conviction petition, the time for filing an
application for federal habeas relief would be statutorily
tolled.
With that statutory background in mind, we turn to the
series of events that occurred during each of those respective
one-year periods in this case.
1. Attorney Dayvid Figler’s Representation
On April 30, 2004, three days after the Nevada Supreme
Court issued its remittitur on direct appeal of Rudin’s
judgment of conviction, Rudin’s appellate counsel, Craig
Creel, moved to withdraw as counsel and asked the trial court
to appoint post-conviction counsel. The trial court granted
Creel’s motion on June 8, 2004. Rudin, proceeding pro per,
filed a similar motion on July 14, 2004, also seeking
appointment of post-conviction counsel.4 At a hearing on

4

We assume that the state court was required, under Nevada Rule of
Appellate Procedure 46(d)(3)(C), to wait to set a hearing date until after
Rudin had filed her pro per motion for appointment of post-conviction
counsel. Under that rule, in a post-conviction appeal, an attorney’s motion

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November 10, 2004, after 197 days had passed since the state
supreme court issued its remittitur, the court granted Rudin’s
motion and appointed attorney Dayvid Figler to represent
her.5 Two weeks later, on November 24, 2004, the court
issued an order to that effect.6
At the November 2004 hearing at which the state court
appointed Figler to represent Rudin, Rudin attempted pro per
to file with the court a series of papers. In the district court
and on appeal, Rudin contends that those papers would have
constituted a “properly filed” post-conviction petition had the
court accepted them. See 28 U.S.C. § 2244(d)(2).7 Pursuant
to the applicable local rules, however, the court declined to

to withdraw as counsel “shall be accompanied by . . . a motion by
defendant to proceed in proper person or with substitute counsel.”
5

The record is not clear as to the reason, if any, that the post-conviction
court delayed four months in hearing Rudin’s pro per motion for
appointment of post-conviction counsel. Cf. Nev. Rev. Stat. §§ 34.740
(requiring “expeditious judicial examination” of petitions for postconviction relief); 34.726 (limiting the period for filing a petition to one
year). In the district court, Rudin argued in passing that the state court’s
four-month delay was “unnecessarily long” and was a part of the
“extraordinary circumstances” that gave rise to her filing delay. She does
not renew that argument on appeal.
6
We, like the district court, give Rudin every benefit of the doubt. We
therefore take November 10, 2004, not November 24, 2004, as the date on
which Figler’s representation commenced.
7

We give Rudin every benefit of the doubt and assume her contention
is accurate.

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accept them and instead “turned [them] over to Mr. Figler.”8
But Figler never filed them with the court. One month later,
in December 2004, Judge Bonaventure, who had presided
over Rudin’s trial and post-conviction proceedings up until
that point, recused himself sua sponte, and Rudin’s case was
reassigned.9
When Rudin’s case was reassigned to another judge on
December 29, 2004, 246 days had passed since the Nevada
Supreme Court issued its remittitur. Rudin therefore had 119
days left to file a petition for post-conviction relief in state
court. With respect to AEDPA, 182 days had passed since
that limitations period had begun to run, leaving Rudin with
183 days to file an application for federal habeas relief.
Again, the deadlines for filing those petitions were April 27,
2005, and June 30, 2005, respectively. And although Rudin
had once tried to file a petition for relief herself, the postconviction court rejected that effort because the local rules
prohibited Rudin from doing so when she had “counsel of
record.”

8
Rule 3.70 of the Rules of Practice for the Eighth Judicial District Court
of the State of Nevada provides that papers “delivered to the clerk of the
court by a defendant who has counsel of record will not be filed [but will
be] forwarded to that attorney for such consideration as counsel deems
appropriate.”
9

Judge Bonaventure recused himself as a result of personal biases that
he had against Rudin’s previous appellate counsel, Craig Creel. See Matt
Pordum, Bonaventure Won’t Hear Rudin Appeal, Las Vegas Sun, Dec. 28,
2004, http://www.lasvegassun.com/news/2004/dec/28/bonaventure-wonthear-rudin-appeal/ (“ ‘My blood boils every time I hear the name Craig
Creel. . . . Whether I look at him or think of him, my blood boils. I’m
getting a headache thinking of him right now.’ ” (quoting Bonaventure,
J.)).

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*

*

*

*

*

The record suggests that, after Rudin’s case was
reassigned (and perhaps as a result of that reassignment),
substantial confusion arose between the parties and the court
about whether Rudin had already filed a petition for postconviction relief. On January 5, 2005, for example, the state
court held a status hearing on Rudin’s “opening brief.” The
court’s use of the term “opening brief” suggested that the
parties and the court believed that Rudin’s initial petition for
post-conviction relief had been filed but that Rudin had yet to
file a brief in support of that petition. See Nev. Rev. Stat.
§ 34.735 (establishing the form of a petition). At the same
status hearing, the court granted Figler a continuance,
extending his time to file the “brief” and setting a second
status hearing for July 13, 2005. At the July 13 status
hearing, Figler again requested “an additional 90 days to file
his brief,” which the court granted the following week. By
that date, both of Petitioner’s one-year limitations periods for
filing her requests for collateral relief had run. But nobody–
neither Figler, nor the State, nor the court–recognized that to
have occurred. On January 18, 2006, the post-conviction
court again granted Figler an additional “45 days in which to
file his opening brief due to the voluminous record in this
case.” The State would later confirm that, at that time, the
State and the court were “under the mistaken impression” that
a petition had already been filed.
Meanwhile, Rudin became concerned–and we believe
rightfully so–that Figler was not adequately representing her
in her collateral review proceedings. According to Rudin, at
some point in 2005, she requested that Figler provide her with
copies of her file. Figler did not immediately respond. Figler
visited Rudin only a handful of times that year, but he did not

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interview the witnesses she identified, and he never informed
her that he had requested a series of continuances on the basis
of the “complexity” of her case. Figler last visited Rudin in
May 2006, which was the first time in almost a year that he
had done so.
In November 2005, Rudin began to gather information in
support of her soon-to-be-filed motion to substitute counsel.
First, she submitted an Inmate Request Form to the prison
staff asking for a summary of the attorney visits she had
received that past year. In a response dated a few weeks later,
the staff informed her that she had received four visits,
occurring on January 4, February 7, February 25, and June
17. In January 2006, after multiple failed attempts to contact
Figler, Rudin submitted a second Inmate Request Form
notifying prison staff that she had “not been able to call [her]
attorney since [December 15, 2005]” and requesting that the
staff fix the problem, which she was concerned was “at this
facility.” Three weeks later, the prison staff responded,
informing Rudin that Figler had a collect call block on his
office phone and that Rudin would need to send a letter to
Figler requesting that the block be removed. At the same
time, Rudin’s friend, who was not in prison, “repeatedly . . .
requested [that Figler] visit [Rudin]; have the telephone block
removed; not postpone [Rudin’s] post conviction brief filing;
and send her a copy of the opening brief,” all to no avail.
Figler never filed anything with the state post-conviction
court. On April 5, 2006, 511 days after Figler was appointed,
Rudin moved to substitute counsel. In her motion, she
described Figler’s inadequacies and expressed her “grea[t]
concer[n] that she [was] not receiving adequate representation
regarding her post conviction.” At a hearing on July 17,
2006, the court granted her motion and, at the same time,

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appointed attorney Christopher Oram, who continues to
represent Rudin on appeal, to represent her.10 The court filed
an order to that effect on August 17, 2006.
To summarize the facts leading up to this point: By
August 17, 2006, the day that Figler was relieved from his
duties to represent Rudin, almost two years had passed since
the day he was appointed to represent her. Early on in the
course of Figler’s representation, Rudin’s case was reassigned
to a new judge, who granted at least three of Figler’s requests
for additional time to file an “opening brief.” At no point did
the court ever mention the one-year limitations period under
Nevada state law, and at no point did the State raise
timeliness concerns. And while Figler regularly attended the
court’s status hearings, he appears to have done nothing else
in support of his client’s request for post-conviction relief.
Indeed, after June 2005, Figler stopped communicating with
his client altogether, by declining to visit her in prison and by
placing a collect call block on his office telephone. When
Figler’s representation ended, 842 days had passed since the
day Rudin’s one-year state limitations period began to run,
and 778 days had passed since the day her one-year AEDPA
limitations period began to run. Of those days, 645 and 581,
respectively, had run under Figler’s watch. And during that
time, Figler had filed nothing in either state or federal court.

10
Attached to Petitioner’s motion to substitute counsel was what she
called a “brief opening supplement,” presumably to her petition for postconviction relief. When the post-conviction court ruled on her motion,
however, it appears to have construed the filing solely as a motion to
substitute counsel, not as a petition for post-conviction relief.

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2. Attorney Christopher Oram’s Representation
Oram’s representation began on August 17, 2006,11 and
has continued through the course of this appeal. Oram finally
filed a post-conviction petition in state court on August 21,
2007. Prior submissions or references to Rudin’s “opening
brief” notwithstanding, Oram’s August 21, 2007, submission
appears to have been the first and only petition for postconviction relief filed in the state court. It was filed three
years and 116 days after the state-law statute of limitations
began to run–or 846 days too late.
A colloquy between Oram, the post-conviction court, and
the State at a status conference on August 22, 2007,
demonstrates that, even at that late date, the parties were still
confused as to whether a petition for post-conviction relief
had actually been filed. Oram initially raised the issue by
suggesting that he re-label his most recent filing as a petition
for “a writ of habeas corpus” as opposed to a “supplement.”
The post-conviction court agreed and proceeded to find
“extraordinary circumstances” to excuse the delay in filing:12
MR. ORAM: [M]y fear is, as I look at the
statute, that – um – the one year deadline to

11

Oram technically was appointed at the hearing that took place on July
17, 2006. Again, however, we seek to give Rudin every benefit of the
doubt. We therefore consider Figler’s representation to have extended
until the date on which the court entered its order substituting counsel,
which was August 17, 2006.
12

We assume that the post-conviction court’s reference to “extraordinary
circumstances” is equivalent to, or was intended to mean, “good cause,”
which is the standard to excuse a filing delay under Nevada Revised
Statute section 34.726.

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file, I looked at it and it said that – uh – the
court can excuse it, and can delay the process,
which I assume was going on while Mr. Figler
was going through this. But perhaps I should
relabel the petition for writ of habeas corpus.
I may need to amend it today, just to say
where she’s located, because that’s what the
statute requires.
THE COURT:
Okay. I may say you
should probably do that. Just do that as like a
one page sheet, like an errata to your deal.
MR. ORAM: Yes.
THE COURT:
And the court will find, as
a matter of finding today, that [your] filing of
the writ for post-conviction relief is timely,
based upon – um – the fact that – uh – Mr.
Figler had the case for so many years. I
believe it was years.
MR. ORAM: It was two years. Yes, it was
two years.
THE COURT:
It was two years, and filed
nothing, even though we kept having status
checks. So – um – we’re going to find that it
was timely filed.
....
Um – and it was an extensive trial. Didn’t it
take several weeks?

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MR. ORAM: Ten weeks.
....
THE COURT:
Ten week trial. So that
would be the extraordinary circumstance that
we would find would allow the petition for
post-conviction relief be filed. That, plus the
fact that the first attorney didn’t do anything.
At that point, and for the very first time in two years, the
State became aware that no petition had been filed and
decided to speak up:
[THE STATE]: I think, Judge, that sets a
bad precedent, in light of the fact that we can
get multiple attorneys, and every attorney that
gets this says, well, he had it too long, he had
it too long. We’d like to at least address that,
before you make that finding.
The post-conviction court obliged, declining to make a
finding until the State had the opportunity to address the issue
in further briefing. It noted, however, that “I really think that
the court is going to find, not only this court, but the next
court, is going to find that there were extraordinary
circumstances in this case, which would allow the court to
extend the one year deadline.” The State never did brief the
timeliness question, nor did it ever move to dismiss Rudin’s
petition.
On December 19, 2008, the post-conviction court held a
hearing to consider the merits of Rudin’s petition for relief.
At that hearing, the court questioned whether “the defense . . .

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start[ed] out so far behind the starting line of this trial that no
matter how much time the [c]ourt gave them during the trial
. . . it ultimately [was] an unfair trial.” The post-conviction
court went on to state,
And there’s two standards for Strickland:[13]
One is was counsel effective, and then the
second standard is even if counsel wasn’t
effective was the evidence so overwhelming
. . . against the defendant [that] it wouldn’t
make any difference who defended her and
how prepared they were and how many
experts they called because the decision
would always be guilty of murder.
In this case I can’t say that that is true. I
didn’t try the case, but in reviewing the writ
filed by Mr. Oram and reviewing the response
by the State, and I had commented on the
22nd of October that the case was full of a
cast of characters together with witnesses, and
the case had a lot of intrigue and spins and
loops, and there was a lot of ulterior motives
on people who testified.
....
The experts couldn’t agree on much of
anything in this case as I read the dry record.
The proof of guilt was not a slam dunk by any
stretch of the imagination for the State, so I
can’t say – I cannot say in this case that no
13

Strickland v. Washington, 466 U.S. 668 (1984).

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19

matter who had defended her that the verdict
would have been the same.
After hearing testimony from defense attorneys Pitaro and
Momot, the court granted Rudin’s request for post-conviction
relief and ordered her a new trial. The post-conviction court
described Rudin’s prior trial as a “mockery of our promise to
people who are in the criminal justice system that they will
have an adequate defense.”
The State appealed, arguing for the first time on appeal
that Rudin’s petition was untimely. In its brief, the State
confirmed what we think is suggested by the record: that “in
the proceedings below,” “the prosecution and the judge were
under the mistaken impression that an initial petition had
been timely filed.”
The Nevada Supreme Court reversed the post-conviction
court’s judgment. It concluded that neither of that court’s
stated reasons for excusing Rudin’s delay “affords a factual
or legal basis to find that Rudin’s claims were not reasonably
available to be raised in a timely manner.” Rudin sought en
banc reconsideration, which the Nevada Supreme Court
denied on January 20, 2011. It was only after the Nevada
Supreme Court denied en banc reconsideration of Rudin’s
state post-conviction appeal that Oram filed an application for
habeas relief in federal court.
*

*

*

*

*

On April 25, 2011, Rudin, still represented by Oram,
applied for habeas relief in federal court. By that time,
almost seven years had passed since the deadline for seeking
a writ of certiorari from the U.S. Supreme Court, see

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28 U.S.C. § 2244(d)(1)(A), making her application almost six
years too late under AEDPA. In her application, Rudin
contended that the Nevada Supreme Court erred in finding
her state-court petition for post-conviction relief time-barred
because either (1) the petition was timely, or (2) the State had
waived any argument to the contrary when it failed to make
a timeliness argument before taking its appeal. For those
reasons, according to Rudin, the federal district court should
have considered her state-court petition to be “properly filed”
and given her the benefit of statutory tolling of the AEDPA
limitations period. See 28 U.S.C. § 2244(d)(2). In the
alternative, Rudin argued that equitable tolling pursuant to
Holland v. Florida, 130 S. Ct. 2549 (2010), also applied to
her case. The district court granted the State’s motion to
dismiss, dismissed Rudin’s petition with prejudice, and
denied the certificate of appealability. On October 24, 2012,
we granted Rudin’s request for a certificate of appealability
on the question “whether the district court properly
determined that the petition was barred by the statute of
limitations.” We turn now to that question.
II. DISCUSSION
We review de novo the question whether a petitioner’s
application for federal habeas relief was timely filed. Noble
v. Adams, 676 F.3d 1180, 1181 (9th Cir. 2012). We also
review de novo the question whether AEDPA’s statute of
limitations should be tolled. See Spitsyn v. Moore, 345 F.3d
796, 799 (9th Cir. 2003). Unless the facts are undisputed, we
review the district court’s findings of fact underlying a claim
for equitable tolling for clear error. Stancle v. Clay, 692 F.3d
948, 953 (9th Cir. 2012). The petitioner bears the burden to
establish that she is entitled to tolling of the AEDPA
limitations period. Id.

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A. Statutory Tolling
We begin with Rudin’s argument that she is entitled to
statutory tolling of the AEDPA limitations period. On this
point, Rudin appears to argue that the Nevada Supreme Court
erred when it found her state post-conviction petition
untimely, and that had it not so erred, her petition would be
considered “properly filed” under 28 U.S.C. § 2244(d)(2),
entitling her to statutory tolling of the AEDPA limitations
period.
While we may not have made the same decision as the
Nevada Supreme Court, we are not at liberty to second guess
that court’s decision when it was acting on direct appeal of
the state post-conviction court’s judgment. The state supreme
court concluded that Rudin’s petition was untimely under
state law, and “[w]hen a postconviction petition is untimely
under state law, that [is] the end of the matter for purposes of
§ 2244(d)(2).” Pace v. DiGuglielmo, 544 U.S. 408, 414
(2005) (internal quotation marks omitted) (second alteration
in original); accord Zepeda v. Walker, 581 F.3d 1013, 1018
(9th Cir. 2009). In light of Pace, and because the Nevada
Supreme Court is the final arbiter of Nevada state law, that is
the end of the matter here. Rudin is not entitled to statutory
tolling under § 2244(d)(2) for the duration of her state postconviction proceedings.14
14

We likewise reject Rudin’s argument that she can claim the benefit of
equitable tolling in state court, thereby entitling her to statutory tolling in
federal court. Equitable tolling under Holland v. Florida is a federal
doctrine entirely separate from state law. See 130 S. Ct. at 2563
(“Equitable tolling [is] an inquiry that does not implicate a state court’s
interpretation of state law.”); see also Coleman v. Thompson, 501 U.S.
722, 732 (1991) (applying the independent and adequate state ground
doctrine to the habeas context).

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B. Equitable Tolling
We turn, therefore, to Rudin’s argument that she is
entitled to equitable tolling under Holland v. Florida. A
petitioner is entitled to equitable tolling if she can establish
that (1) she was pursuing her rights diligently, but (2) some
extraordinary circumstance stood in her way. Pace, 544 U.S.
at 418; Sossa v. Diaz, 729 F.3d 1225, 1229 (9th Cir. 2013)
(“[E]quitable tolling is available ‘only when extraordinary
circumstances beyond a prisoner’s control make it impossible
to file a petition on time and the extraordinary circumstances
were the cause of [the prisoner’s] untimeliness.’ ” (quoting
Bills v. Clark, 628 F.3d 1092, 1097 (9th Cir. 2010) (second
alteration in original))). Rudin bears a heavy burden to show
that she is entitled to equitable tolling, “lest the exceptions
swallow the rule,” Bills, 628 F.3d at 1097 (internal quotation
marks omitted); however, the grounds for granting equitable
tolling are also highly fact-dependent, Sossa, 729 F.3d at
1229. At bottom, the purpose of equitable tolling is to
“soften the harsh impact of technical rules which might
otherwise prevent a good faith litigant from having [her] day
in court.” United States v. Buckles, 647 F.3d 883, 891 (9th
Cir. 2011) (internal quotation marks omitted); see also
Holland, 130 S. Ct. at 2563 (“[W]e have followed a tradition
in which courts of equity have sought to ‘relieve hardships
which, from time to time, arise from a hard and fast
adherence’ to more absolute legal rules, which, if strictly
applied, threaten the ‘evils of archaic rigidity.’ ” (quoting
Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238,
248 (1944))).
In Holland, the Supreme Court held that AEDPA’s
limitations period may be tolled for equitable reasons. 130 S.
Ct. at 2562. In that case, the petitioner’s attorney had failed

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to file a timely application despite the petitioner’s repeated
requests to do so, failed to inform the petitioner about crucial
facts related to his case, and failed to communicate altogether
with his client over a period of several years. Id. at 2564.
The Supreme Court found those circumstances to constitute
more than a “garden variety claim of excusable neglect,” and
instead concluded that the attorney’s egregious misconduct
amounted to, in essence, abandonment. Id.; id. at 2568
(Alito, J., concurring); see also Maples v. Thomas, 132 S. Ct.
912, 923–24 (2012) (adopting Justice Alito’s reasoning in
Holland addressing attorney abandonment).15 Because of that
abandonment, the petitioner’s delay could be deemed to result
from misconduct that could not constructively be attributed
to him, and therefore the AEDPA limitations period could
potentially be tolled for the relevant period of time. Holland,
130 S. Ct. at 2564–65.
To be entitled to equitable tolling of the AEDPA
limitations period, Rudin thus bears the burden to prove that
she has been pursuing her rights diligently but that
extraordinary circumstances made it impossible for her to file
her application on time. See Pace, 544 U.S. at 418. Under
Holland, attorney abandonment may give rise to such
extraordinary circumstances. 130 S. Ct. at 2564. “The
diligence required for equitable tolling purposes is

15

Mere negligence on the part of a prisoner’s post-conviction counsel
does not warrant equitable tolling. Holland, 130 S. Ct. at 2564. “That is
so . . . because the attorney is the prisoner’s agent, and under ‘well-settled
principles of agency law,’ the principal bears the risk of negligent conduct
on the part of his agent.” Maples, 132 S. Ct. at 922 (quoting Coleman,
501 U.S. at 753–54). But when an attorney abandons his client, the
principal-agent relationship is severed, and the attorney’s “acts or
omissions therefore ‘cannot fairly be attributed to [the client].’ ” Id. at
923 (quoting Coleman, 501 U.S. at 753) (alteration in original).

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‘reasonable diligence,’ not ‘maximum feasible diligence.’ ”
Id. at 2565 (citations and second and third internal quotation
marks omitted). We readily conclude that extraordinary
circumstances in part gave rise to Rudin’s delay in filing her
application for federal habeas relief.
1. July 1, 2004, Through November 10, 2004
Between July 1, 2004, the day the AEDPA limitation
period began to run, and November 10, 2004, the day that
Figler was appointed to represent Rudin, Rudin was not
represented by counsel. During that time, Rudin cannot
establish that “extraordinary circumstances” existed to
equitably toll the AEDPA limitation period. See Roy v.
Lampert, 465 F.3d 964, 970 (9th Cir. 2006) (“[P]ro se status,
on its own, is not enough to warrant equitable tolling.”).
Thus, during that time, 133 non-tolled days passed on
Rudin’s AEDPA clock.
2. November 10, 2004, Through August 22, 2007
On November 10, 2004, Figler was appointed to represent
Rudin in her collateral review proceedings.16 After Figler
was appointed, however, he abandoned her. Over the course
of his period of representation, Figler visited Rudin in prison
only a handful of times, and by mid-2005, those visits had
stopped. He had a collect call block placed on his office
phone, making him all but impossible to reach. And while
we acknowledge that Figler physically attended the postconviction court’s status hearings, the record makes clear that

16

It is significant that Figler’s representation commenced before June
30, 2005. That is so because extraordinary circumstances cannot toll a
statute of limitations that has already run.

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he did so with seemingly no intention to actually represent his
client. All the while, Figler failed to inform Rudin of the
reasons for his delay, providing her no clue of “any need to
protect [herself] pro se.” See Maples, 132 S. Ct. at 917. On
the record before us, it does not appear that anyone was
aware of Rudin’s need to protect herself until at least
August 22, 2007. We therefore conclude that extraordinary
circumstances prevented Rudin from filing her application
for federal habeas relief between November 10, 2004, and
August 22, 2007.
Rudin was also diligent in pursuing her rights during that
time, beginning with her attempt to file pro per a petition for
post-conviction relief on November 10, 2004. Over the
course of Figler’s representation, Rudin made repeated
attempts to contact him, provided him with witness
information relevant to her case, and requested that he
provide her with copies of her files so that she could take
additional steps on her own behalf. When Figler repeatedly
failed to respond, Rudin prepared and filed her own motion
to substitute counsel, which had a “brief opening supplement”
attached to it. Until she filed that motion, Rudin had done
everything short of filing her own “opening brief,” which, as
the state court had already made clear, the local rules
prohibited her from doing. We conclude that Rudin was
“reasonably diligent” during the period of Figler’s
representation, which is all that is required for equitable
tolling purposes. See Holland, 130 S. Ct. at 2565.
Rudin is therefore entitled to equitable tolling of the
AEDPA statute of limitations during the time in which Figler
was representing her and up until the point at which Oram
became aware that Figler had never filed anything on Rudin’s

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behalf. That period of time ran from November 10, 2004, to
August 22, 2007.
The State argues that Rudin cannot avail herself of the
benefit of equitable tolling during that time because Figler
represented Rudin only in state court, not in federal court. On
that point, the State contends that Figler’s inadequacies in
state court had no bearing on Rudin’s ability to file a timely
federal application for relief. It argues that, pursuant to Pace,
Rudin should have filed a “protective” application in federal
court and asked the court to stay and abey its habeas
proceedings while she exhausted her state-court remedies.
544 U.S. at 416 (“A prisoner seeking state postconviction
relief [may file] a ‘protective’ petition in federal court and
as[k] the federal court to stay and abey the federal habeas
proceedings until state remedies are exhausted.”). Under the
specific circumstances of this case, we are not persuaded by
the State’s argument. See Holland, 130 S. Ct. at 2563
(“[S]pecific circumstances . . . could warrant special
treatment in an appropriate case.”).
For all Rudin knew–and, indeed, until August 22, 2007,
for all the State knew–Rudin’s state-court petition had already
been filed, making her eligible for statutory tolling under
§ 2244(d)(2). During the period that Figler had represented
her, almost every reference to the pending filing was to an
“opening” or “supplemental brief,” suggesting that the court
had already received her initial petition. Even the State
concedes that it believed that to be the case. During the
period in which Rudin “lacked a clue” of any need to protect
herself, we decline to impute to her knowledge that neither
the State nor the court possessed. See Lott v. Mueller,
304 F.3d 918, 923 (9th Cir. 2002) (declining to impute to a
petitioner knowledge that, “[e]ven with the benefit of legal

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27

training, ready access to legal materials and the aid of four
years of additional case law, . . . evaded both [petitioner’s]
appointed counsel and the expertise of a federal magistrate
judge”).17
3. August 23, 2007, Through April 25, 2011
On August 22, 2007, at the status conference in the state
post-conviction court, the parties first became aware of the
fact that Figler had never filed a post-conviction petition in
state court. From that point forward, Rudin should have been
aware of the possibility that nothing had been “properly filed”
17

The State filed a motion in this court to expand the record on appeal
to include various state-court documents that it had not, for whatever
reason, made a part of the record in the district court. As a general rule,
documents not filed with the district court cannot be made part of the
record on appeal. See Fed. R. App. P. 10(a) (“[T]he original papers and
exhibits filed in the district court; the transcript of proceedings, if any; and
a certified copy of the docket entries prepared by the district clerk” . . .
“constitute the record on appeal.”); Kirschner v. Uniden Corp. of Am.,
842 F.2d 1074, 1077 (9th Cir. 1988). There are of course narrow
exceptions to that general rule, which we may, in our discretion and in
“unusual circumstances,” invoke. Lowry v. Barnhart, 329 F.3d 1019,
1024–25 (9th Cir. 2003) (listing exceptions).
The State offers no compelling reason for its failure to make these
documents part of the record in the district court. Ironically, the reasons
it offers for doing so are the same reasons to which it objected when the
state post-conviction court found that Rudin had established good cause
for her filing delay: that “this is not a typical case,” that “Rudin’s trial was
one of the longest in Nevada history,” and that, overall, the proceedings
below were complex.
We do not need the documents that the State seeks to make part of the
record on appeal in order to decide this case. Thus, we decline to depart
from our general rule. The State’s motion to expand the record on appeal
is DENIED.

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in either state or federal court on her behalf. And at that time,
having been put on notice that her state-court petition may not
have been timely filed, 28 U.S.C. § 2244(d)(2), Rudin had
every reason to act diligently to protect her rights. Yet she
failed to do so.
Rudin offers no persuasive reason for her failure to act
diligently during that time, however. Although she could
have filed a protective federal habeas application while her
state-court post-conviction appeal was pending, she did not.
See Pace, 544 U.S. at 416. After the State filed its notice of
appeal in the Nevada Supreme Court, it should have been
eminently clear to Rudin (and Oram, her counsel) that
Rudin’s eligibility for AEDPA statutory tolling was in
jeopardy. Absent any compelling reason for her failure to act
during this time, Rudin cannot satisfy her burden to establish
that she is entitled to equitable tolling after August 22, 2007.18
18

The dissent takes issue with our conclusion in this respect, pointing
out that by the time Rudin learned that Figler had never filed a postconviction petition on her behalf, the AEDPA limitations had already run.
Therefore, the dissent argues, Rudin had nothing left to protect, and any
protective application for habeas relief would have been pointless.
But our caselaw still requires that Rudin show some degree of
diligence during that time. We cannot conclude that, simply because the
AEDPA statute of limitations had run, Rudin needn’t have filed anything
in federal court. Although a district court might have “dismissed [Rudin’s
application] because it was untimely,” Rudin would have had every right
to appeal such a decision and seek relief on equitable tolling grounds. In
any event, our cases do not permit us to resolve this appeal by speculating
as to what might have happened had Rudin been diligent; rather, those
cases required Rudin to show that she was diligent by filing something in
federal court. See White v. Martel, 601 F.3d 882, 884–85 (9th Cir. 2010)
(per curiam) (rejecting the argument that filing a protective application
after the AEDPA statute of limitations had run would have been “pointless
or even detrimental” and concluding that failure to file demonstrated a

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*

*

*

*

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29

*

In sum, we conclude that Rudin has satisfied her burden
to show that she is entitled to equitable tolling of the AEDPA
limitations period until August 22, 2007, when the
extraordinary circumstances making it impossible for her to
file on time were removed. See Sossa, 729 F.3d at 1229.
After that date, AEDPA’s one-year limitations period
resumed, giving Rudin until April 10, 2008, at the latest to
file her application for federal habeas relief in the district
court.19 She waited until April 25, 2011, to do so. We must
therefore also conclude that Rudin’s application was, by our
calculations, over three years–or 1109 days–too late.
III. CONCLUSION
We are troubled by the outcome of this case for many
reasons. Margaret Rudin’s direct appeal and collateral review
proceedings have been pending in either state or federal court
for a combined total of 13 years. She has potentially
meritorious claims that she has suffered prejudice at the
hands of her own attorneys’ egregious misconduct. Yet she
has never had an opportunity to present those claims in court.
Rudin’s defense counsel, Amador, indisputably engaged
in egregious professional misconduct during the course of her
underlying criminal trial. On direct appeal of her judgment

lack of diligence). Unfortunately, Rudin did not. We are therefore
compelled to conclude that she is not entitled to equitable tolling of the
AEDPA statute of limitations after August 22, 2007.
19

Again, giving Rudin every benefit of the doubt, we assume that
equitable tolling preserves the remaining AEDPA limitations period.

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of conviction, the Nevada Supreme Court acknowledged that
Rudin’s trial was plagued not only with inadequacies on the
part of defense counsel, but also with prosecutorial
misconduct and legal error on the part of the State and the
court.20 Although two members of the Nevada Supreme
Court found the record sufficiently clear as to the “inherent
prejudice created by [trial counsel]” to require immediate
reversal of Rudin’s judgment of conviction, a majority of the
court declined to address the effect of those errors, finding
them more appropriate for resolution on collateral review.
But then, in her collateral review proceedings, Rudin was
abandoned. Rudin’s first attorney filed nothing in any court
on her behalf, and he also failed entirely to investigate her
post-conviction claims. By the time Rudin requested and
obtained substitute counsel, her state and federal limitations
periods had already run, but nobody, not even the court, knew
that to be true. And although the state post-conviction court,
seeing the case as a “mockery of [its] promise to people who
are in the criminal justice system that they will have an
adequate defense,” initially granted Rudin relief, the Nevada
Supreme Court reversed that court’s judgment, finding
Rudin’s petition untimely and reinstating her criminal
convictions. Now, for reasons that completely escape us and
that remain unexplained by the record, Rudin’s current
counsel failed to file a protective habeas application in federal

20

On direct appeal, the Nevada Supreme Court noted that, at trial, the
State had withheld exculpatory evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963). The Nevada Supreme Court also noted
that the trial court had applied the wrong legal standard when it ruled on
Rudin’s requests for a mistrial. The state supreme court concluded,
however, that those errors were harmless.

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court to preserve Rudin’s right to any opportunity for review
that may have remained.
At this point, Rudin is still in prison, having served 13
years of her life sentence for murder. We know from the
state post-conviction court that the State’s “proof of guilt [at
that trial] was not a slam dunk by any stretch of the
imagination.” We also know from the post-conviction court
that, had Rudin been represented by competent counsel, the
jury’s verdict may have been different. Thus, what we do not
know is whether Rudin is lawfully imprisoned. And,
regrettably, that is something we may never know.
The prejudice that Rudin potentially suffered at trial has
only been compounded by the inadequacies of her attorneys
on collateral review, who have now precluded her from
having any chance at presenting her claims in federal court.
Thus, if ever there were a case in which equitable tolling
should apply to soften the harsh impact of technical rules,
perhaps this is that case. However, we are bound by AEDPA
and the standards established under our caselaw and that of
the U.S. Supreme Court, which circumscribe our power to
grant relief to cases in which extraordinary circumstances–in
other words, abandonment–made it impossible for the
petitioner to file on time.
Applying those equitable tolling standards here, we are
unable to conclude that, during the time in which Rudin was
represented by her current counsel, Oram, extraordinary
circumstances made it impossible for her to file a protective
application for habeas relief in federal court. While we can
find no explanation for Oram’s conduct, we likewise cannot
conclude that he abandoned her in a way that, under Holland,
would constitute extraordinary circumstances sufficient to

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equitably toll the AEDPA limitations period. For that reason,
this case–this patent denial of the safeguards of our criminal
justice system–calls for a remedy that we, as a circuit court,
simply cannot provide.
Because that is so, we must AFFIRM the district court’s
dismissal with prejudice of Rudin’s application. For the
reasons explained earlier, we DENY the State’s motion to
expand the record on appeal.

ADELMAN, District Judge, dissenting:
No one can seriously dispute that Margaret Rudin
received ineffective assistance of counsel during her state
court homicide trial, reportedly the longest such trial in
Nevada history. Although two justices of the Nevada
Supreme Court were prepared to grant relief based on the
record on direct appeal, a majority directed her to follow the
usual procedure of developing her ineffective assistance
claim by bringing a post-conviction motion. Rudin attempted
to do so but, based on a constellation of circumstances none
of which are fairly attributable to her lack of diligence, she
was prevented both from properly filing a post-conviction
motion and from timely filing a federal habeas corpus
petition.
The majority finds unfairness but concludes that our
hands are tied. I disagree with the latter proposition and
conclude that, on the egregious facts of this case, the doctrine
of equitable tolling is sufficiently expansive to provide
petitioner with access to the federal courts. Thus, I
respectfully dissent.

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I.
Regarding the facts, I emphasize only a few key points.
Rudin attempted to comply with the state supreme court’s
directive to present her ineffective assistance claim via a postconviction motion both by requesting the appointment of
post-conviction counsel and by attempting to file papers
which, according to her, raised the claim. In November 2004,
in response to Rudin’s request, the trial court appointed
Dayvid Figler as post-conviction counsel but declined to
accept Rudin’s pro se submission and instead gave it to
Figler. Figler did not file Rudin’s papers and, for almost two
years, did nothing except seek continuances. Justifiably fed
up, Rudin ultimately asked for and was provided new
counsel. By that time, however, both the state postconviction motion deadline and the federal habeas statute of
limitations had run.
In August 2007, Rudin’s new lawyer Christopher Oram
filed a brief in support of state post-conviction relief and
realized that no post-conviction motion had previously been
filed. He apprised the post-conviction court of this, and the
court found that because of the case’s extraordinary
circumstances, including the length and complexity of the
trial and Figler’s misconduct, the delay in filing was justified.
The state’s counsel complained that the court’s ruling set “a
bad precedent” and asked permission to file a brief on the
timeliness issue. The post-conviction court granted the
request, but the state then failed to file such a brief and
instead chose to contest the merits of Rudin’s claim. In
December 2008, the post-conviction court granted Rudin
relief on her ineffective assistance claim.

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The state appealed to the state supreme court and,
notwithstanding having forgone the timeliness issue in the
post-conviction court, argued that Rudin’s post-conviction
motion was untimely. Remarkably, in view of the state’s
previous failure to contest the issue, the state supreme court
ruled that the post-conviction court had failed to make a
sufficient finding of cause for its timeliness ruling. The court
also refused to remand the case to enable Rudin to make a
record on the issue. On January 20, 2011, the state supreme
court concluded its consideration of the case when it denied
en banc review over a dissent which memorably noted, “If
this is justice then I must be dreaming.” On April 25, 2011,
Rudin filed her federal habeas petition.
II.
A petitioner is entitled to equitable tolling if she shows
that she has been pursuing her rights diligently and some
extraordinary circumstance stood in her way. Pace v.
DiGuglialmo, 544 U.S. 408, 418 (2005). The diligence
required for equitable tolling purposes is “reasonable
diligence,” not “maximum feasible diligence.” Ford v.
Gonzalez, 683 F.3d 1230, 1237 (9th Cir. 2012). While the
threshold necessary to trigger equitable tolling is high, lest
the exceptions swallow the rule, Waldron-Ramsey v.
Pacholke, 556 F.3d 1008, 1011 (9th Cir. 2009), the grounds
for granting equitable tolling are highly fact-dependent,
Nedds v. Calderon, 678 F.3d 777, 780 (9th Cir. 2012).
When considering whether to apply equitable tolling, the
Supreme Court has emphasized the need for flexibility and
for avoiding mechanical rules. Holland v. Florida, 560 U.S.
631, 650 (2010). A court reviewing a habeas petition should
adhere to a tradition in which courts of equity have sought to

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relieve hardships which, from time to time, arise from a hard
and fast adherence to more absolute legal rules, and which, if
strictly applied, threaten the evils of archaic rigidity. Id.; see
also Harris v. Carter, 515 F.3d 1051, 1055 (9th Cir. 2008)
(“We have stated that the purpose of the equitable tolling
doctrine ‘is to soften the harsh impact of technical rules
which might otherwise prevent a good faith litigant from
having a day in court.’”) (quoting Jones v. Blanas, 393 F.3d
918, 928 (9th Cir. 2004)).
Rudin presents a compelling case for equitable tolling.
She consistently sought to press her ineffective assistance
claim in the state courts, as she was required to do before
turning to the federal courts, yet due to impediments created
by others she was prevented from obtaining review on the
merits. She attempted to file a pro se submission challenging
the effectiveness of her trial counsel, but the post-conviction
court turned it over to Figler. Had the court accepted
Rudin’s filing, statutory tolling would likely have applied
throughout the state post-conviction process.
As the majority recognizes, Figler then abandoned Rudin.
See, e.g., Holland, 560 U.S. at 651 (holding that
unprofessional attorney conduct, if sufficiently egregious,
may constitute an extraordinary circumstance justifying
equitable tolling); Spitsyn v. Moore, 345 F.3d 796, 801 (9th
Cir. 2003) (“We similarly conclude that the misconduct of
Spitsyn’s attorney was sufficiently egregious to justify
equitable tolling of the one-year limitations period under
AEDPA.”). And when Rudin realized that Figler was doing
nothing, she again demonstrated due diligence by asking the
post-conviction court to replace him.

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The state suggests that, notwithstanding Figler’s
misconduct, Rudin could have filed a protective petition in
federal court. But Rudin had no reason to know that a postconviction motion had not been docketed during the one year
limitation period set by state law such that she could not avail
herself of statutory tolling. Reasonable diligence did not
require her to file a protective federal petition based on the
possibility that the state post-conviction court would without
informing her refuse to file her pro se submission and that her
court-appointed lawyer would never file a post-conviction
motion in state court. As we stated in Harris, the fact that a
prisoner “could have filed a timely federal habeas petition at
a certain point in time is not dispositive.” 515 F.3d at 1055.
I part ways with the majority when it concludes that in
August 2007, after Rudin’s new lawyer advised the postconviction court that no state post-conviction motion had
been filed, Rudin failed to exercise reasonable diligence by
not filing a protective federal habeas petition. The facts do
not justify this conclusion. First, by August 2007 the federal
habeas statute of limitations had long since run. It would
have been pointless for Rudin to file a “protective” habeas
petition pursuant to Pace because, unlike in Pace, there was
nothing to protect. In Pace, the prisoner could have filed a
protective habeas petition before the federal habeas statute of
limitations had run and thus had a timely habeas petition on
file. In the present case, any protective petition that Rudin
might have filed in 2007 would have been untimely and
would not have protected anything. In all likelihood, it would
have been dismissed because it was untimely. See, e.g.,
Urrizaga v. Attorney General for Idaho, No. CV-07-434,
2008 WL 1701735, at *3 (D. Idaho Apr. 9, 2008) (dismissing
as untimely a petition that the prisoner apparently intended to

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function as protective because by the time he filed it the
statute of limitations had already expired).
The second reason that Rudin had no reason to file a
protective habeas petition based on the proceedings in the
post-conviction court is that the state provided her with good
cause to believe that it had given up on the timeliness issue.
As discussed, at the August 2007 hearing, the post-conviction
court found that, because of the extraordinary circumstances
of the case, the post-conviction submission by Rudin’s new
lawyer was timely. The state asked for and received
permission from the court to contest the timeliness issue but
then chose not to do so. The state essentially sandbagged
Rudin, lulling her into believing that it was not contesting the
post-conviction court’s conclusion that she had properly filed
a post-conviction motion which tolled the federal clock. See
Maghee v. Ault, 410 F.3d 473, 476 (8th Cir. 2005)
(“Equitable tolling is appropriate . . . where a defendant’s
conduct lulls the prisoner into inaction.”). The state’s failure
to raise the timeliness issue in the post-conviction court
certainly provided Rudin with a reasonable basis to believe
that she had no need to file a protective petition in federal
court; she was entitled to rely in good faith on the state’s
position. Cf. Harris, 515 F.3d at 1055 (finding equitable
tolling where the petitioner relied in good faith on thenbinding circuit precedent).
The majority attempts to buttress its contention that Rudin
should have filed a protective petition by citing the state’s
challenge to the timeliness of her post-conviction motion in
the state supreme court after the post-conviction court had
granted her relief in December 2008. Surely by this time, the
majority concludes, Rudin should have known that her
eligibility for statutory tolling was in jeopardy. But

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reasonable diligence did not require Rudin to file a protective
federal petition while the state appealed her victory. First, as
stated, the federal statute of limitations had long since run,
making a protective petition pointless. Second, a litigant in
Rudin’s position could have reasonably concluded that the
state had waived or forfeited its right to contest the timeliness
issue by not having done so in the post-conviction court.
Finally, at that point in the proceedings, Rudin had prevailed.
She had no reason to file a protective petition because she had
no claim to raise. She had won and, as a result, there was no
adverse decision for the federal courts to review. To
conclude that she is not entitled to equitable tolling because
she failed to file a protective petition after she had won her
case in state court seems extremely unfair.
And after she lost in the state supreme court in 2011, she
promptly filed in federal court.1
1

The majority cites White v. Martel, 601 F.3d 882, 884–85 (9th Cir.
2010) (per curiam), for the proposition that a prisoner must file a
protective petition to show reasonable diligence even though the AEDPA
limitations period has already run. In White, however, the prisoner’s state
court petition was held untimely on January 6, 2006, but the prisoner had
until January 12, 2006 to timely file a federal habeas petition. See id. at
884; White v. Subia, No. 2:06-cv-02840, 2008 WL 2302534, at *2 (E.D.
Cal. May 30, 2008). White turned on the fact that the prisoner waited until
December 14, 2006, nearly a year after his state court motion was rejected,
to file in federal court.
The facts of the present case are not comparable. Here, on August 22,
2007 (about two years after the federal statute of limitations had run), the
parties first discovered that no state post-conviction motion had been filed.
On that same date, the post-conviction court accepted Rudin’s supporting
brief as a proper motion, a determination the state failed to challenge until
after it lost on the merits. As discussed in the text, reasonable diligence
did not require Rudin to file a protective petition while the state, having
forfeited a timeliness challenge, appealed her victory.

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III.
Commentators have noted that modern habeas corpus law
requires prisoners to run a procedural gauntlet before they can
even get their cases in front of an article III judge for review
of the merits. See John H. Blume, et al., In Defense of
Non-Capital Habeas: A Response to Hoffmann and King,
96 Cornell L. Rev. 435, 442–43 (2011). Nevertheless, both
the Supreme Court and the Ninth Circuit have recognized that
equitable doctrines remain available to soften the harsh
impact of technical rules that prevent a good faith litigant
from having her day in court. If ever there was a case in
which the deadlines need to be relaxed to avoid a miscarriage
of justice, this is it.