Luna v. Kernan, No. 12-17332 [April 28, 2015]

Luna v. Kernan

Luna's court-appointed counsel filed his federal habeas petition 6 years after the statutory time limit. The magistrate judge noted that Luna “may have been better off without counsel.” The court found that contrary to the state’s contention to establish exceptional circumstance for equitable tolling the petitioner need not establish abandonment by his counsel, but a showing of professional misconduct [as opposed to “garden variety” negligence] will suffice if the misconduct is “sufficiently egregious.” Where counsel incorrectly move to voluntarily dismiss Luna’s timely filed petition, failed to both exhaust his remaining state court claims or file a federal petition within the statute of limitations, and continually led his client to believe his case would be heard on the merits because a fully exhaust federal habeas petition would be filed, the misconduct was sufficiently egregious. “[a]ffirmatively misleading a petitioner to believe that a timely petition has been or will soon be filed can constitute egregious professional misconduct.” The case was remanded back to the magistrate to consider diligence on Luna’s part as the court did not analyze the issue after finding a lack of extraordinary circumstances. To establish diligence Luna most show that 1) he kept in touch with his attorney and 2) that it was reasonable to continue to rely on his counsel's assurance about the progress of the case. The court found that the length of the delay, 6 years, was not by itself sufficient to show a lack of diligence, as argued by the state. Finally, the court affirmed that in determining equitable tolling that a “stop clock” approach should be used in connection with a diligence-through-filing requirement, i.e., that “the clock stops running when extraordinary circumstances first arise, but the clock resumes running once the extraordinary circumstances have ended or when the petitioner ceases to exercise reasonable diligence, whichever occurs earlier.” The petitioner must show that he/she remained diligent through filing. [The court did note that at some point, “our circuit may need to decide whether it makes sense to follow the stop-clock approach and at the same time impose a diligence-through-filing requirement.”]