Rudin v. Myles

Equitable tolling is available if extraordinary circumstances made it impossible to file an application for federal habeas relief within the limitations period.

Margaret Rudin was convicted for “murder with the use of a deadly weapon and unauthorized surreptitious intrusion of privacy by [a] listening device.” “Rudin’s trial was replete with alleged errors and professional misconduct on the part of the defense team.” Rudin appealed, and the Nevada Supreme Court affirmed the convictions. After this appeal, Rudin was appointed post-conviction counsel after her appellate counsel moved to withdraw. Rudin attempted to file petitions for collateral review in state and federal court. Rudin’s efforts were thwarted by “substantial confusion [. . .] between the parties and the court about whether Rudin had already filed a petition for post-conviction relief,”. Rudin was later given new counsel, however, the statute of limitations for seeking state and federal relief had run out by the time Rubin’s new counsel filed relief petitions. Rudin appealed the state court’s denial of her application due to untimeliness, which the district court dismissed. On appeal, the Ninth Circuit determined Rubin was not entitled to statutory tolling because “‘[w]hen a postconviction petition is untimely under state law, that [is] the end of the matter . . .’” The panel then reviewed whether Rudin was entitled to equitable tolling. Rudin would be “entitled to equitable tolling if she [could] establish that (1) she was pursuing her rights diligently, but (2) some extraordinary circumstances stood in her way.” The panel found that found that Rudin had diligently pursued her rights by trying to file her petitions, contact her attorney, and get substitute counsel. The panel also found extraordinary circumstances in her attorney’s abandonment during her collateral review proceedings. However, these extraordinary circumstances were removed once Rudin received new counsel. The panel therefore found that Rudin was not entitled to equitable tolling, and affirmed the district court’s dismissal. AFFIRMED and DENIED.