Rudin v. Myles, No. 12-15362 (9th Cir. 2014)
Annotate this CasePetitioner, convicted of murdering her husband and unauthorized surreptitious intrusion of privacy by listening device, appealed the district court's dismissal of her 28 U.S.C. 2254 habeas corpus petition based on untimeliness. The Nevada Supreme Court concluded that the petition was untimely under state law. In light of Pace v. DiGuglielmo, and because the Nevada Supreme Court is the final arbiter of Nevada state law, petitioner is not entitled to statutory tolling under section 2244(d)(2) for the duration of her state post-conviction proceedings. The court concluded, however, that extraordinary circumstances in part gave rise to petitioner's delay in filing her application for federal habeas relief until August 27, 2007, when the extraordinary circumstances making it impossible for her to file on time were removed. After that date, the one-year limitations period resumed, giving petitioner until April 10, 2008, at the latest to file her application for federal habeas relief in the district court. Petitioner waited until April 25, 2011. Therefore, petitioner's application was too late. Accordingly, the court affirmed the district court's dismissal with prejudice of petitioner's application and denied the State's motion to expand the record on appeal.
Court Description: 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 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.
The court issued a subsequent related opinion or order on March 10, 2015.
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