Gibbs v. LeGrand

Attorney misconduct, including not informing the client that their habeas corpus petition has already been denied, rises to the level of an extraordinary circumstance allowing for filing timeframe to be equitably tolled.

George Gibbs was convicted of various crimes and received a life sentence with the possibility of parole. Dayvid Figler was appointed to represent Gibbs in his post-conviction relief (“PCR”) appeal. Gibbs had difficulty communicating with Figler because of Figler’s lack of contact with Gibbs. Gibbs sent several letters attempting to get any information about his case progress from Figler, but to no avail. When the Nevada Supreme Court affirmed Gibbs’ PCR petition denial, Figler failed to inform Gibbs, causing Gibbs to miss his opportunity for an appeal. Gibbs wrote the Nevada State Bar to report his difficulties with Figler. Gibbs also filed his habeas corpus petition by himself, almost sixty-five days after he received his documents from Figler, and long after his original deadline had passed. Gibbs argues that his attorney’s misconduct entitled him to equitable tolling such that his petition was timely. The district court dismissed, indicating that Gibbs had not demonstrated that his counsel was incompetent but only that he had trouble communicating with the attorney. On appeal, the Ninth Circuit noted that a litigant seeking equitable tolling bears the burden of establishing two elements including: (1) that he has been pursuing his rights diligently; and, (2) that some extraordinary circumstances stood in his way and prevented timely filing. The panel found that Gibbs successfully proved both elements and that Figler’s failure to notify him of the denial constituted abandonment, and thereby created an extraordinary circumstance sufficient to justify equitable tolling. Additionally, the panel held that the standard of diligence required of a petitioner seeking equitable tolling is “reasonable” and not the “maximum feasible.” The panel noted that Gibbs satisfied this element by his actions immediately following his learning of the denial by the Nevada Supreme Court, and filing his own habeas corpus petition. REVERSED and REMANDED.