Porter v. Ollison , 620 F.3d 952 ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES PORTER III,  No. 07-55305
Petitioner-Appellant,
v.  D.C. No.
CV 06-01118-R
DERRICK L. OLLISON,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Central District of California
Manuel Real, District Judge, Presiding
Argued November 6, 2009
Submitted July 19, 2010
Pasadena, California
Filed July 29, 2010
Before: Ronald M. Gould and Carlos T. Bea, Circuit Judges,
and William T. Hart,* District Judge.
Opinion by Judge Hart
*The Honorable William T. Hart, District Judge for the Northern Dis-
trict of Illinois, sitting by designation.
10881
PORTER v. OLLISON 10883
COUNSEL
Arthur H. Weed, Esq., Santa Barbara, California, for the peti-
tioner.
David Delgado-Rucci, Office of the California Attorney Gen-
eral, San Diego, California, Kevin Vienna, Supervising Dep-
uty Attorney General, Office of the California Attorney
General, San Diego, California, for the respondent.
OPINION
HART, District Judge:
James Porter III was found guilty of being a felon in pos-
session of a firearm and sentenced by a California court to a
10884 PORTER v. OLLISON
term of incarceration of 25 years to life. In his pro se federal
habeas corpus petition, Porter contends that there was insuffi-
cient evidence to support his conviction and that his trial
counsel was ineffective for failing to object to certain evi-
dence and a jury instruction. The merits of Porter’s habeas
petition are not before this court. The only question is
whether, on preliminary review, the federal habeas petition
was properly dismissed as untimely without responsive brief-
ing and an evidentiary hearing. The principal issue is the pos-
sible application of equitable tolling based on misconduct by
an attorney who resigned from the State Bar of California (the
“Bar”) while facing disciplinary proceedings for running a
habeas corpus “writ mill.” On preliminary review, it cannot
be conclusively determined that the federal petition was
untimely. For the reasons that follow, we vacate the district
court order denying Porter’s habeas petition as untimely and
remand on the ground further factual development will be
necessary before a conclusion can be made with respect to the
timeliness of Porter’s petition.
I. BACKGROUND
Because the case was dismissed on preliminary review,
respondent has not answered the petition. The full state court
pleadings and record were not before the district court. Any
preliminary determination is limited to Porter’s allegations
and exhibits, as well as any state court dockets or pleadings
that have been located (including on the Internet) and for
which it is proper to take judicial notice. See Smith v. Duncan,
297 F.3d 809, 815 (9th Cir. 2002); Abeyta v. Giurbino, 607
F. Supp. 2d 1123, 1127 n.5 (C.D. Cal. 2009).1
1
Judicial notice is taken of the court dockets in the state court proceed-
ings. Fed. R. Evid. 201(b); Dawson v. Mahoney, 451 F.3d 550, 551 (9th
Cir. 2006). Judicial notice is also taken of the second round habeas corpus
petition, including attachments, that was filed in the California Supreme
Court. Id. This document was not considered by the district court. The
attachments include the Superior Court’s order denying Porter’s second
round habeas petition and the Court of Appeal’s decision on direct appeal.
Judicial notice is also taken of California disciplinary proceedings. Fed. R.
Evid. 201(b); White v. Martel, 601 F.3d 882, 885 (9th Cir. 2010).
PORTER v. OLLISON 10885
On December 15, 1999, Porter was found guilty of being
a felon in possession of a firearm. On March 16, 2000, he was
sentenced to 25 years to life under California’s Three Strikes
Law. On December 18, 2000, the California Court of Appeal
affirmed the conviction and sentence. On March 14, 2001, the
California Supreme Court denied review.
The district court took notice of California Supreme Court
and California Court of Appeal records for a first round of
habeas proceedings. The district court and the parties on
appeal, though, did not note that a pro se habeas petition was
first filed in the state trial court on August 27, 20012 and
denied on September 5, 2001. See In re James Porter III, No.
SWHSS4984 (Super. Ct. Cal. San Bernardino County).3 On
September 26, 2001, Porter filed a pro se habeas petition in
the California Court of Appeal. On October 1, 2001, the peti-
tion was summarily denied. See http://appellatecases.
courtinfo.ca.gov/search/case/dockets.cfm?dist=42&doc_id=
663436&doc_no=E030333 (accessed Nov. 19, 2009). On
November 28, 2001, Porter filed a pro se habeas petition in
the California Supreme Court which was denied on April 17,
2002. See http://appellatecases.courtinfo.ca.gov/search/case/
mainCaseScreen.cfm?dist=0&doc_id=1834111&doc_no=
S102432 (accessed Nov. 19, 2009).
On April 24, 2003, Porter initiated a second round of
habeas proceedings by again filing a habeas petition in the
San Bernardino Superior Court. He was represented by attor-
ney Richard Dangler. On August 22, 2003, the petition was
denied. On December 1, 2003, a habeas petition was filed in
the California Court of Appeal. Porter was represented by
2
In a motion filed in the district court, Porter states that he signed the
petition on August 22, 2001. It will be assumed he provided the petition
for mailing on August 22.
3
The docket for this case may be accessed at http://www.sbcounty.gov/
courts/flash.asp (accessed Nov. 19, 2009) by entering a search for the case
number or petitioner’s name.
10886 PORTER v. OLLISON
Dangler. On December 9, 2003, the petition was denied. On
February 9, 2005, Porter filed a pro se habeas petition in the
California Supreme Court. On December 21, 2005, it was
denied.
On October 11, 2006, Porter’s pro se federal habeas corpus
petition was docketed. He indicates that it was placed for
mailing on September 24, 2006. Applying the “mailbox” rule,
Ramirez v. Yates, 571 F.3d 993, 996 n.1 (9th Cir. 2009); Jen-
kins v. Johnson, 330 F.3d 1146, 1149 n.2 (9th Cir. 2003),
overruled on other grounds, Pace v. DiGuglielmo, 544 U.S.
408 (2005), the federal petition is deemed to have been filed
on September 24, 2006.
A magistrate judge reviewed Porter’s petition and recom-
mended dismissing it as untimely. The magistrate judge cal-
culated that the time for filing a federal petition had already
expired before Porter began his second round of state habeas
petitions in April 2003. The magistrate judge held that equita-
ble tolling could not apply because there is no right to an
attorney in habeas corpus proceedings and Porter had not
shown that he had acted with diligence. In ruling on objec-
tions to the report, the district judge noted that the record indi-
cated only a single request by Porter for return of his files
from attorney Dangler, which did not constitute diligently
pursuing his rights. The court held that, because the time for
a federal appeal had already expired in April 2003, any delays
in returning the file could not have affected Porter’s ability to
file a timely petition. Additionally, the district judge rejected
actual innocence contentions that are not raised on appeal. A
judgment denying the petition was entered on January 8,
2007. Porter thereafter sought reconsideration, which was
denied, and timely appealed.
Viewed in a light favorable to petitioner, the facts are as fol-
lows:4 In November 2001, shortly before or after Porter filed
4
The facts alleged in the petition and facts supported by other documen-
tary submissions of the petitioner are viewed in a light favorable to peti-
tioner. See Evans v. Chavis, 546 U.S. 189, 201 (2006).
PORTER v. OLLISON 10887
his first round habeas petition in the California Supreme
Court, Porter (through his girlfriend Keena Love) retained
Dangler to represent him in state and/or federal habeas corpus
proceedings. Porter turned over to Dangler virtually all of his
legal documents, including his copies of trial transcripts. Por-
ter retained copies of some writs or draft writs.
When, in April 2002, the California Supreme Court issued
its order denying the pro se habeas petition, Dangler was rep-
resenting Porter. At this point in time, one round of state
habeas corpus petitions had been completed and more than
ten months remained to file a timely federal habeas corpus
petition. Dangler, however, did not thereafter file a timely
federal petition. Instead, more than a year later in April 2003,
Dangler initiated a second round of habeas petitions in the
California Superior Court. Dangler informed Porter that this
second round state petition was necessary in order to exhaust
issues that had not been previously raised. However, the
Superior Court petition did not raise any issues that had not
already been raised on direct appeal or in the prior pro se peti-
tions. This filing by Dangler was consistent with practices of
Dangler designed to run up the bills of clients — practices
that eventually resulted in disbarment proceedings being initi-
ated against him based on the charge of running a “writ mill.”
One of the documents submitted by Porter in the district
court is the decision of the Client Security Fund Commission
of the State Bar of California, which ruled that Dangler was
required to return the entire $7,250 fee that had been paid to
him for representing Porter in the state habeas proceedings. It
was found that the fee paid for representing Porter was lost
due to the “dishonest conduct” of Dangler. The Fund Com-
mission’s decision includes findings, based on the findings in
In re White, 121 Cal. App. 4th 1453, 18 Cal. Rptr. 3d 444(2004), that Dangler filed more than 50 habeas corpus peti-
tions for which he did not monitor the timeliness of filings,
ensure that frivolous claims were not filed, or limit petitions
to claims not already raised on direct appeal. Dangler hired
10888 PORTER v. OLLISON
law students to draft the petitions, paid them minimal
amounts, and did not actually review the petitions before fil-
ing them in court. It was found that Dangler would convince
clients to pay him to file pleadings he knew or should have
known had little chance of success. Dangler’s “entire opera-
tion was set up to dupe inmates and their vulnerable families
into paying him for basically worthless petitions prepared by
non-attorneys.”
Dangler contended before the Fund Commission that his
failure to act on Porter’s behalf from April 2002 through
March 2003 was caused by his poor health, but that he had
another attorney working in his office at the time. The Fund
Commission found, however, that this attorney, Roman Rec-
tor, had no experience in habeas corpus proceedings and
lacked the knowledge or experience to supervise persons
working on habeas corpus petitions.
In June 2004, while disciplinary proceedings were pending
against him, Dangler submitted his resignation from the Bar,
which the California Supreme Court accepted in August 2004.
In September 2004, Porter learned that Dangler had resigned
from the Bar. In a letter, Rector offered to take over the case,
but for an additional fee, and using Dangler to assist him in
a non-attorney role. Porter expressed interest in retaining Rec-
tor. Based on a letter Porter received from Rector on October
10, 2004, Porter believed Rector was representing him. Rector
informed Porter that he was still able to file a petition in the
California Supreme Court and that he was working on a draft.
Thereafter, Porter repeatedly attempted to contact Rector, but
without success. Porter ultimately filed a second pro se peti-
tion in the California Supreme Court.5 The Fund Commission
found that Rector and Dangler had a “questionable” financial
5
In the district court, Porter submitted two September 2004 letters from
Rector. The facts regarding further contact are taken from representations
Porter made, in his second round California Supreme habeas petition,
explaining delays in filing that petition.
PORTER v. OLLISON 10889
arrangement and that, as of 2004, Rector did not have the
experience to handle habeas petitions.6
The Fund Commission rejected Dangler’s excuse that the
initial delays in filing pleadings for Porter were due to Dan-
gler’s health, not Dangler’s dishonest conduct. It also rejected
Dangler’s contention that Porter had caused delays that pre-
cluded Dangler, prior to relinquishing his license, from filing
a habeas petition in the California Supreme Court.
In the district court, Porter also provided declarations from
his wife (Michelle Cunningham) and mother (Deborah Por-
ter). Deborah Porter states that she was in contact with Dan-
gler from 2001 to 2005 and she was told that a writ was being
pursued. It was not until 2004 or 2005 that she learned Dan-
gler was no longer licensed to practice. After deciding she
could not afford Rector’s additional fee, Deborah Porter
requested that the file be returned to her son. In their declara-
tions, both Deborah Porter and Cunningham state the “tran-
script” was not received by Cunningham until June or July
2006 and that she had to obtain permission to send the tran-
script to Porter in prison. After permission was obtained, the
transcript was sent to Porter in October 2006. One of Porter’s
contentions is that he could not prepare the federal habeas
corpus petition until Dangler or Rector returned his case file.
6
At oral argument, counsel for Porter represented that disciplinary pro-
ceedings are pending against Rector. State Bar records show that, by stipu-
lation dated October 26, 2009, Rector was suspended for 90 days, an 18-
month suspension has been stayed, and he is subject to two years of
probation. See http://members.calbar.ca.gov/courtDocs/06-O-11681-2.pdf
(accessed June 16, 2010). The suspension was served from February 26,
2010 to May 26, 2010. See http://members.calbar.ca.gov./search/
member_detail.aspx?x=212244 (accessed June 16, 2010). Most of the stip-
ulated misconduct relates to representation of habeas petitioners formerly
represented by Dangler. Rector stipulated to findings that he failed to
respond to a client’s inquiries; failed to review a case file before represent-
ing a client; and accepted compensation from someone other than clients
without the informed consent of each particular client.
10890 PORTER v. OLLISON
II. STANDARD OF REVIEW
The timeliness of the federal habeas petition, including
whether the limitation period should be tolled, is reviewed de
novo because there are no findings of fact. Townsend v.
Knowles, 562 F.3d 1200, 1204 (9th Cir.), cert. denied, 130 S.
Ct. 193 (2009) (quoting Harris v. Carter, 515 F.3d 1051,
1054 (9th Cir. 2008)); Waldron-Ramsey v. Pacholke, 556 F.3d
1008, 1011 (9th Cir.), cert. denied, 130 S. Ct. 244 (2009);
Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003). The dis-
trict court may dismiss a habeas petition only when “it plainly
appears from the petition and any attached exhibits that the
petitioner is not entitled to relief.” Rules Governing § 2254
Cases R. 4; Boyd v. Thompson, 147 F.3d 1124, 1128 (9th Cir.
1998).
Prisoner pro se pleadings are given the benefit of liberal
construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam) (“A document filed pro se is to be liberally con-
strued”). However, in construing pro se petitions liberally, the
petitioner is not entitled to the benefit of every conceivable
doubt; the court is obligated to draw only reasonable factual
inferences in the petitioner’s favor. McKinney v. De Bord, 507
F.2d 501, 504 (9th Cir. 1974).
III. ANALYSIS
[1] Under the Anti-Terrorism and Effective Death Penalty
Act (“AEDPA”), 28 U.S.C. § 2244(d)(1)(A), a federal peti-
tion for writ of habeas corpus ordinarily must be filed within
one year after the state court judgment becomes final by the
conclusion of direct review or the expiration of the time to
seek direct review. The time during which a properly filed
application for state post-conviction or collateral review
(including California habeas proceedings) is pending does not
count toward this one-year period. Id. § 2244(d)(2). Various
rules regarding the computation of the § 2244(d)(1) limitation
period and § 2244(d)(2) statutory tolling apply.
PORTER v. OLLISON 10891
The period between when direct review becomes final and
the filing of a state habeas petition is not tolled; tolling begins
when the state habeas petition is filed. Raspberry v. Garcia,
448 F.3d 1150, 1153 n.1 (9th Cir. 2006) (quoting Nino v.
Galaza, 183 F.3d 1003, 1006 (9th Cir. 1999)). In determining
when a pro se state or federal petition is filed, the “mailbox”
rule applies. A petition is considered to be filed on the date
a prisoner hands the petition to prison officials for mailing.
Ramirez, 571 F.3d at 996 n.1; Jenkins, 330 F.3d at 1149 n.2.
As to California habeas proceedings, collateral review is con-
sidered to be pending during the interim between a writ being
denied at one court level and a new petition being filed at the
next higher court level as long as the petition at the next level
is filed within a reasonable period of time. Carey v. Saffold,
536 U.S. 214, 222-25 (2002); Evans, 546 U.S. at 192-93. If
the time to file a federal petition has not already expired when
a second round of properly filed California habeas petitions
begins, the second round of petitions will also toll the
§ 2244(d)(1) period. See Dils v. Small, 260 F.3d 984, 986 (9th
Cir. 2001). For tolling to be applied based on a second round,
the petition cannot be untimely or an improper successive
petition. See Townsend, 562 F.3d at 1205. The time between
the completion of a first round and the beginning of a second
round is not tolled. Delhomme v. Ramirez, 340 F.3d 817, 820
(9th Cir. 2003).
In determining the running of the limitations period in this
case, certain finality rules apply. When, on direct appeal,
review is sought in the state’s highest court but no petition for
certiorari to the United States Supreme Court is filed, direct
review is considered to be final when the certiorari petition
would have been due, which is 90 days after the decision of
the state’s highest court. Bowen v. Roe, 188 F.3d 1157 (9th
Cir. 1999); Townsend, 562 F.3d at 1204. When the California
Supreme Court denies a habeas petition, that round of habeas
review is considered to be final 30 days thereafter. Raspberry,
448 F.3d at 1152; Delhomme, 340 F.3d at 819.
10892 PORTER v. OLLISON
[2] Recently, the United States Supreme Court held that
equitable tolling may apply to the limitation period of
§ 2244(d)(1). Holland v. Florida, 130 S. Ct. ___, 2010 WL
2346549 *9-12 (June 14, 2010). This Circuit had previously
so held. See Ramirez, 571 F.3d at 997; Waldron-Ramsey, 556
F.3d at 1011 n.2; Calderon v. United States Dist. Ct. for C.D.
of Cal. (Kelly), 163 F.3d 530, 541 (9th Cir. 1998) (en banc);
Calderon v. United States Dist. Ct. for C.D. of Cal. (Beeler),
128 F.3d 1283 (9th Cir. 1997), overruled on other grounds,
Kelly, supra. As respondent concedes, all other circuits that
have reached the issue had also so held. While recognizing
Ninth Circuit law was to the contrary, respondent preserved
the argument that equitable tolling can never apply to the
§ 2244(d)(1) limitation period. Holland conclusively resolves
that it may apply.
[3] “[A] ‘petitioner’ is ‘entitled to equitable tolling’ only if
he shows ‘(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his
way,’ and prevented timely filing.” Holland, 2010 WL
2346549 at *12 (quoting Pace, 544 U.S. at 418). The peti-
tioner must show that “the extraordinary circumstances were
the cause of his untimeliness and that the extraordinary cir-
cumstances made it impossible to file a petition on time.”
Ramirez, 571 F.3d at 997 (internal quotation marks & cita-
tions omitted). “[T]he threshold necessary to trigger equitable
tolling [under AEDPA] is very high, lest the exceptions swal-
low the rule.” Spitsyn, 345 F.3d at 799 (quoting Miranda v.
Castro, 292 F.3d 1063, 1066 (9th Cir. 2002)).
[4] Attorney negligence, including a miscalculation of a
filing deadline, is not a sufficient basis for applying equitable
tolling to the § 2244(d)(1) limitation period. Holland, 2010
WL 2346549 at *13-14; Randle v. Crawford, 604 F.3d 1047,
1058 (9th Cir. 2010); Spitsyn, 345 F.3d at 800; Miranda, 292
F.3d at 1068; Frye v. Hickman, 273 F.3d 1144 (9th Cir.
2001). However, attorney misconduct that is sufficiently egre-
gious to meet the extraordinary misconduct standard can be a
PORTER v. OLLISON 10893
basis for applying equitable tolling. Spitsyn, 345 F.3d at 801.
In Spitsyn, the attorney was retained a full year in advance of
the deadline, but completely failed to prepare or file a petition
even though the attorney was repeatedly contacted by both the
client and the client’s mother, and a grievance was filed with
the state bar association complaining about the lack of
response. Also, despite a letter terminating the representation
and requesting the file, the file was not turned over until two
months after the expiration of the filing deadline. This con-
duct was held to be sufficiently egregious. Id. at 798, 801. It
was still necessary that the petitioner act with reasonable dili-
gence. Id. at 802.
In Holland, 2010 WL 2346549 at *14, the Supreme Court
held that the facts before the court, which required further
development on remand, were sufficient to “suggest” far more
than “garden variety” negligence or “excusable neglect.”
To be sure, Collins failed to file Holland’s petition
on time and appears to have been unaware of the
date on which the limitations period expired—two
facts that, alone, might suggest simple negligence.
But, in these circumstances, the record facts we have
elucidated suggest that the failure amounted to more:
Here, Collins failed to file Holland’s federal petition
on time despite Holland’s many letters that repeat-
edly emphasized the importance of his doing so.
Collins apparently did not do the research necessary
to find out the proper filing date, despite Holland’s
letters that went so far as to identify the applicable
legal rules. Collins failed to inform Holland in a
timely manner about the crucial fact that the Florida
Supreme Court had decided his case, again despite
Holland’s many pleas for that information. And Col-
lins failed to communicate with his client over a
period of years, despite various pleas from Holland
that Collins respond to his letters.
10894 PORTER v. OLLISON
The court also indicated the extraordinary nature of the attor-
ney’s conduct was supported by the conduct being violations
of canons of professional responsibility. Id.[5] Ninety days after the March 14, 2001 California
Supreme Court Porter decision on direct review was Tuesday,
June 12, 2001. When Porter mailed his first pro se habeas
petition on August 22, 2001,7 the running of the § 2244(d)(1)
period was tolled. As of August 22, 70 days of the limitation
period had run, leaving 295 days to file a federal habeas peti-
tion. There is no contention that there were unreasonable
delays in filing the remaining petitions of the first round. The
first round was final 30 days after the California Supreme
Court’s denial, which was Friday, May 17, 2002. If there was
no further tolling, Porter’s deadline for filing a federal habeas
corpus petition was 295 days later, Monday, March 10, 2003.
Even assuming the next round of state petitions were properly
filed and would otherwise toll the limitation period, that round
did not begin until an attorney-filed petition was filed on
Thursday, April 24, 2003. Therefore, Porter needs equitable
tolling to reach the second round of state habeas petitions.
Assuming Porter is entitled to equitable tolling for the
entire time period that he was represented by Dangler and
believed he was represented by Dangler’s associate, Rector,
such tolling could last until February 5, 2005. At that point,
Porter’s second round of state petitions was still pending so
the limitations period would have continued to be tolled. On
December 21, 2005, the California Supreme Court denied the
second round of habeas review, which became final 30 days
later on Monday, January 23, 2006. 295 days later was Tues-
day, November 14, 2006, by which time the federal habeas
petition was on file.
7
The calculation relied on by the parties does not take this filing into
account.
PORTER v. OLLISON 10895
If Porter is entitled to equitable tolling of the § 2244(d)(1)
limitation period from March 10, 2002 through April 24, 2003
and also equitable tolling excusing any unreasonable delays
during his second round of state habeas petitions, it is unnec-
essary for there to be further tolling (based on Dangler’s and
Rector’s continued failure to return Porter’s files) for any time
period between the California Supreme Court’s 2005 denial of
habeas relief and the filing of the federal habeas petition.
[6] On remand, further development of the facts may ulti-
mately show that Porter is or is not entitled to equitable toll-
ing because of lack of diligence or because Dangler’s
egregious conduct did not prevent Porter from filing a timely
federal petition. Construing Porter’s pro se habeas petition
liberally, and on the facts supported by the submissions pres-
ently before the court, however, it cannot be conclusively
determined that Porter is not entitled to equitable tolling.
Other instances of Dangler’s misconduct are noted: Jones
v. Henry, 2006 WL 2382152 *6-7 (E.D. Cal. Aug. 17, 2006),
mag. j. report adopted, 2006 WL 3039566 (E.D. Cal. Oct. 25,
2006), reconsideration denied, 2007 WL 512422 (E.D. Cal.
Feb 12, 2007) (applying equitable tolling based on deficient
representation of Jones in state habeas proceedings by Dan-
gler and another separate attorney, both of whom were even-
tually disbarred (or resigned) based on that type of conduct);
Patrick v. Hubbard, 2008 WL 489516 (E.D. Cal. Feb. 20,
2008), mag. j. report adopted, 2008 WL 756137 (E.D. Cal.
March 20, 2008) (applying equitable tolling based on repre-
sentation by Dangler and Rector).
[7] It has been held that a habeas petitioner represented by
an attorney who was disbarred (or resigned the bar) for the
same type of conduct as in the petitioner’s case and required
to return his fee was engaged in egregious conduct that consti-
tutes extraordinary circumstances beyond attorney negligence.
See Spitsyn, 345 F.3d at 798 (favorably cited in Holland, 2010
WL 2346549 at *13) (state bar association subsequently repri-
10896 PORTER v. OLLISON
manded the attorney for deficiencies in representing Spitsyn).
See also Holland, 2010 WL 2346549 at *14 (noting attorney’s
conduct violated ethical rules). Compare also Ford v. Hub-
bard, 330 F.3d 1086, 1106 (9th Cir. 2003), vacated on other
grounds sub nom., Pliler v. Ford, 542 U.S. 225 (2004) (citing
Beeler, 128 F.3d at 1288) (favorably cited in Holland, 2010
WL 2346549 at *13)) (attorney moving out of state and leav-
ing behind unusable work product for replacement counsel is
an example of an attorney’s failure to protect the client’s
interest that constitutes egregious conduct justifying equitable
tolling); Baldayaque v. United States, 338 F.3d 145, 152 (2d
Cir. 2003) (favorably cited in Holland, 2010 WL 2346549 at
*13; Spitsyn, 345 F.3d at 801) (“extraordinary circumstances”
standard satisfied by attorney’s egregious conduct in failing to
follow client’s specific direction to file a 28 U.S.C. § 2255motion and failure to perform any research on the matter).
The district court dismissed this case based on the conclu-
sion that Porter did not act diligently. However, Porter pro-
vided facts that may support that Dangler’s egregious
representation prevented him from acting in a timely manner.
On preliminary review, it cannot be conclusively determined
that Porter will be unable to show that he acted with sufficient
diligence.
In Ford, the district court did not allow the petitioner to
amend the petition or expand his declaration, nor had it held
an evidentiary hearing. Because equitable tolling is highly
fact specific, this court declined to rule on equitable tolling
and instead remanded the case for further factual develop-
ment. 330 F.3d at 1107. In Whalem/Hunt v. Early, 233 F.3d
1146, 1148 (9th Cir. 2000) (en banc) (per curiam), this court
remanded the case for further consideration of equitable toll-
ing because it could not be determined that there were “no cir-
cumstances consistent with petitioner’s petition and
declaration under which he would be entitled to a finding of
. . . equitable tolling.” See also, Holland, 2010 WL 2346549PORTER v. OLLISON 10897
at *14 (quoting Gonzalez v. Crobsy, 545 U.S. 524, 540 (2005)
(Stevens, J., dissenting)).
In Spitsyn, this court noted that the existing record did not
“clearly answer” whether Spitsyn acted with reasonable dili-
gence and provided no explanation of why Spitsyn waited
five months after his file being returned before filing a habeas
petition. Nevertheless, the case was remanded to the district
court to develop the pertinent facts. 345 F.3d at 802. It was
also held that, on the limited record, it could not be assumed
that Spitsyn was dilatory for not filing a petition on his own
or retaining a new attorney during an extended period of time
that his counsel failed to respond sufficiently to requests from
Spitsyn and Spitsyn’s mother. Id. at 801.8
It is contended that Porter did not act diligently because the
filing of the February 2005 California Supreme Court petition
shows that he had the ability to file a habeas petition without
the return of his files and without the assistance of Dangler.
However, depending on further factual development, it would
be possible to find, as in Holland and Spitsyn, that Porter
acted diligently because he, his mother, and others continually
contacted Dangler and Rector until it became apparent in Feb-
ruary 2005 that neither would be providing further representa-
tion. In this case’s present posture, it cannot be conclusively
determined that Porter would not be able to show that the
effects of Dangler’s dishonest and bad faith representation
8
The district court distinguished the present case from Spitsyn on the
basis that the record in the present case only supports that Deborah Porter
made one request for the return of the file. On the present record, though,
it cannot be concluded that Porter did not make any such requests. In any
event, contrary to the district court’s assumption as to the facts in Spitsyn,
that case involved one request for return of Spitsyn’s file. See id. at 798.
There were numerous other contacts with the Spitsyn attorney, but the
record in the present case also supports that Porter, his mother, and others
had numerous communications with Dangler and Rector during the perti-
nent time periods. Moreover, Dangler’s misconduct is not limited to fail-
ing to return Porter’s files.
10898 PORTER v. OLLISON
carried over from when he was first retained in November
2001 until February 2005.
[8] The judgment of the district court will be vacated and
this case remanded to complete the preliminary review of the
merits of Porter’s federal habeas corpus petition. Any timeli-
ness determination by the district court will require factual
findings.
VACATED and REMANDED.