NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 25 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DARRELL CONNERS, No. 21-15693
Plaintiff-Appellant, D.C. No. 3:15-cv-00372-RCJ-CLB v.
WILLIAM HUTCHINGS, Warden; MEMORANDUM* ATTORNEY GENERAL FOR THE STATE OF NEVADA,
Defendants-Appellees.
Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding
Submitted May 23, 2023** Pasadena, California
Before: GRABER and WARDLAW, Circuit Judges, and BAKER,*** International Trade Judge.
Darrell Conners, a Nevada state prisoner, appeals the district court’s
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely. In his
petition, Conners argues that his federal and state sentences were to run
concurrently, but were imposed consecutively due to ineffective assistance of
counsel. 1 Exercising our jurisdiction under 28 U.S.C. § 2253, we find the petition
timely and reverse and remand for the district court to address the merits of the
petition.
Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), we review de novo the district court’s denial of Conners’ federal
habeas petition as untimely and its determination that Conners was not entitled to
statutory tolling. Noble v. Adams, 676 F.3d 1180, 1181 (9th Cir. 2012); Spitsyn v.
Moore, 345 F.3d 796, 799 (9th Cir. 2003). We also review de novo the district
court’s determination that Conners was not entitled to equitable tolling. Gibbs v.
Legrand, 767 F.3d 879, 884 (9th Cir. 2014).
1. The district court properly determined that Conners’ federal habeas
petition was untimely under AEDPA and that he was not entitled to statutory
1 Conners also filed a 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence based on the same underlying ineffective assistance of counsel issues. In its amended judgment, the district court “found for Conners on his claim that he received ineffective counsel” and attempted to “cure the default” by permitting Conners “to serve his time under Counts 1 and 3 concurrently with his state court sentence.” Case No. 2:11-0304, dkt. 148 at 2. However, the district court found that “Count 2 cannot be concurrent to any other sentence,” and therefore Conners would serve a consecutive term as to that count. Id. at 2–3.
2 tolling. AEDPA establishes a one-year period within which an individual seeking
relief must file an application for a writ of habeas corpus. 28 U.S.C § 2244(d)(1).
Under 28 U.S.C. § 2244(d)(1)(D), the limitation period may not begin until “the
date on which the factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence.” Here, Conners may not
have realized that his sentences were running consecutively until the day he filed
his motion nunc pro tunc. Even assuming, as the district court did, that the one-
year period started on the day after Conners filed his nunc pro tunc motion
(January 9, 2014), he still “effectively filed his federal petition on July 8, 2015, six
months late.”
Further, neither Conners’ nunc pro tunc motion, which the district court
construed as a § 2255 motion, nor his motion to withdraw his plea, which the state
court construed as a state post-conviction habeas petition, tolled the one-year
statutory period. The nunc pro tunc motion did not collaterally attack the state
conviction at issue and was ineligible for tolling under 28 U.S.C. § 2244(d)(2).
Duncan v. Walker, 533 U.S. 167, 181–82 (2001). The motion to withdraw also did
not toll the one-year period because the period had already expired, and a state
post-conviction habeas petition cannot revive an expired federal period of
limitations. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
2. The district court erred in holding that Conners was not entitled to
3 equitable tolling. A habeas petitioner seeking equitable tolling bears the burden of
establishing: “(1) that he has been pursuing his rights diligently and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.” Smith v.
Davis, 953 F.3d 582, 588 (9th Cir. 2020) (en banc) (internal quotation marks
omitted) (citing Holland v. Florida, 560 U.S. 631, 649 (2010)). Conners met his
burden of showing that extraordinary circumstances prevented him from timely
filing and that he has “been reasonably diligent in pursuing his rights not only
while [the] impediment to filing caused by an extraordinary circumstance existed,
but before and after as well, up to the time of filing his [petition] in federal court.”
Id. at 598–99.
Extraordinary circumstances prevented Conners from filing on time. First,
the state sentencing transcript reveals that Conners’ counsel and the state trial
judge erroneously believed that Conners’ state sentence could and would run
concurrently with his federal sentence. See Reynolds v. Thomas, 603 F.3d 1144,
1149 (9th Cir. 2010), abrogated on other grounds by Setser v. United States, 566
U.S. 231 (2012). No one, including Conners’ state and federal counsel, notified
him about this error, which caused confusion and amounts to “egregious”
unprofessional attorney conduct and an extraordinary circumstance. See Holland,
560 U.S. at 651–52 (noting that an attorney’s unprofessional conduct can
sometimes “amount to egregious behavior and create an extraordinary
4 circumstance that warrants equitable tolling”); see also Benjamin v. Kelly, No. 21-
35260, 2022 WL 1285040 (9th Cir. Apr. 29, 2022) (unpublished). Second, in
addition to the complex nature of Conners’ situation, his continued representation
by multiple ineffective and conflicted counsel, who failed to understand his
intertwining cases, contributed to his failure to timely file his habeas petition.2
Accordingly, the district court overlooked the multiple challenging conditions
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 25 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
DARRELL CONNERS, No. 21-15693
Plaintiff-Appellant, D.C. No. 3:15-cv-00372-RCJ-CLB v.
WILLIAM HUTCHINGS, Warden; MEMORANDUM* ATTORNEY GENERAL FOR THE STATE OF NEVADA,
Defendants-Appellees.
Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding
Submitted May 23, 2023** Pasadena, California
Before: GRABER and WARDLAW, Circuit Judges, and BAKER,*** International Trade Judge.
Darrell Conners, a Nevada state prisoner, appeals the district court’s
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable M. Miller Baker, Judge for the United States Court of International Trade, sitting by designation. dismissal of his 28 U.S.C. § 2254 habeas corpus petition as untimely. In his
petition, Conners argues that his federal and state sentences were to run
concurrently, but were imposed consecutively due to ineffective assistance of
counsel. 1 Exercising our jurisdiction under 28 U.S.C. § 2253, we find the petition
timely and reverse and remand for the district court to address the merits of the
petition.
Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), we review de novo the district court’s denial of Conners’ federal
habeas petition as untimely and its determination that Conners was not entitled to
statutory tolling. Noble v. Adams, 676 F.3d 1180, 1181 (9th Cir. 2012); Spitsyn v.
Moore, 345 F.3d 796, 799 (9th Cir. 2003). We also review de novo the district
court’s determination that Conners was not entitled to equitable tolling. Gibbs v.
Legrand, 767 F.3d 879, 884 (9th Cir. 2014).
1. The district court properly determined that Conners’ federal habeas
petition was untimely under AEDPA and that he was not entitled to statutory
1 Conners also filed a 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence based on the same underlying ineffective assistance of counsel issues. In its amended judgment, the district court “found for Conners on his claim that he received ineffective counsel” and attempted to “cure the default” by permitting Conners “to serve his time under Counts 1 and 3 concurrently with his state court sentence.” Case No. 2:11-0304, dkt. 148 at 2. However, the district court found that “Count 2 cannot be concurrent to any other sentence,” and therefore Conners would serve a consecutive term as to that count. Id. at 2–3.
2 tolling. AEDPA establishes a one-year period within which an individual seeking
relief must file an application for a writ of habeas corpus. 28 U.S.C § 2244(d)(1).
Under 28 U.S.C. § 2244(d)(1)(D), the limitation period may not begin until “the
date on which the factual predicate of the claim or claims presented could have
been discovered through the exercise of due diligence.” Here, Conners may not
have realized that his sentences were running consecutively until the day he filed
his motion nunc pro tunc. Even assuming, as the district court did, that the one-
year period started on the day after Conners filed his nunc pro tunc motion
(January 9, 2014), he still “effectively filed his federal petition on July 8, 2015, six
months late.”
Further, neither Conners’ nunc pro tunc motion, which the district court
construed as a § 2255 motion, nor his motion to withdraw his plea, which the state
court construed as a state post-conviction habeas petition, tolled the one-year
statutory period. The nunc pro tunc motion did not collaterally attack the state
conviction at issue and was ineligible for tolling under 28 U.S.C. § 2244(d)(2).
Duncan v. Walker, 533 U.S. 167, 181–82 (2001). The motion to withdraw also did
not toll the one-year period because the period had already expired, and a state
post-conviction habeas petition cannot revive an expired federal period of
limitations. Ferguson v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003).
2. The district court erred in holding that Conners was not entitled to
3 equitable tolling. A habeas petitioner seeking equitable tolling bears the burden of
establishing: “(1) that he has been pursuing his rights diligently and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.” Smith v.
Davis, 953 F.3d 582, 588 (9th Cir. 2020) (en banc) (internal quotation marks
omitted) (citing Holland v. Florida, 560 U.S. 631, 649 (2010)). Conners met his
burden of showing that extraordinary circumstances prevented him from timely
filing and that he has “been reasonably diligent in pursuing his rights not only
while [the] impediment to filing caused by an extraordinary circumstance existed,
but before and after as well, up to the time of filing his [petition] in federal court.”
Id. at 598–99.
Extraordinary circumstances prevented Conners from filing on time. First,
the state sentencing transcript reveals that Conners’ counsel and the state trial
judge erroneously believed that Conners’ state sentence could and would run
concurrently with his federal sentence. See Reynolds v. Thomas, 603 F.3d 1144,
1149 (9th Cir. 2010), abrogated on other grounds by Setser v. United States, 566
U.S. 231 (2012). No one, including Conners’ state and federal counsel, notified
him about this error, which caused confusion and amounts to “egregious”
unprofessional attorney conduct and an extraordinary circumstance. See Holland,
560 U.S. at 651–52 (noting that an attorney’s unprofessional conduct can
sometimes “amount to egregious behavior and create an extraordinary
4 circumstance that warrants equitable tolling”); see also Benjamin v. Kelly, No. 21-
35260, 2022 WL 1285040 (9th Cir. Apr. 29, 2022) (unpublished). Second, in
addition to the complex nature of Conners’ situation, his continued representation
by multiple ineffective and conflicted counsel, who failed to understand his
intertwining cases, contributed to his failure to timely file his habeas petition.2
Accordingly, the district court overlooked the multiple challenging conditions
Conners encountered, which when combined, created extraordinary circumstances
preventing Conners from filing his petition on time.
Further, Conners was diligent before, during, and after the impediment
caused by the extraordinary circumstance ended. Smith, 953 F.3d at 598–99.
“[T]he diligence required for equitable tolling purposes is ‘reasonable diligence,’
not ‘maximum feasible diligence.’” Id. at 599 (quoting Holland, 560 U.S. at 653
(citations omitted by Smith)). In January 2014, upon realizing that he was not
being moved into federal custody for a concurrent sentence, Conners immediately
tried to resolve his sentencing issue by contacting his then federal public defender,
William Carrico, who continued to provide ineffective assistance. Our caselaw
“illustrate[s] the basic principle that a petitioner’s reasonable reliance on an
2 For example, Conners’ first appointed counsel, Darin Imlay, misled Conners at his initial state sentencing hearing. Conners’ second appointed counsel, William Carrico, ineffectively assisted Conners with filing a nunc pro tunc motion, which the district court construed as a Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 and denied on May 28, 2014.
5 attorney should not prejudice his opportunity to file a habeas petition.” Gibbs, 767
F.3d at 890 (finding that the defendant acted with reasonable diligence when he
relied on his attorney during the period in question and had no reason to contact the
court) (citing Holland, 560 U.S. at 631; Maples v. Thomas, 565 U.S. 266 (2012);
Spitsyn, 345 F.3d at 796; Doe v. Busby, 661 F.3d 1001 (9th Cir. 2011)). Conners
repeatedly sought Carrico’s affidavit attesting to his ineffectiveness as counsel,
which Carrico had promised but failed to provide. Meanwhile, Conners continued
trying to resolve his sentencing issue pro se by moving to withdraw his plea in his
state robbery case in March 2015 and subsequently appealing to the Nevada Court
of Appeals. In federal court, Conners wrote to the district court about the
ineffective assistance of his counsel in April 2015, filed a successive motion in
May 2015, and filed the petition before us in July 2015. Since Conners’ state
conviction became final, he has sought relief through every reasonable avenue
possible, both in federal and state courts, see Roy v. Lampert, 465 F.3d 964, 972
(9th Cir. 2006), and “work[ed] on his petition with some regularity” as
circumstances permitted until it was filed with the court. Smith, 953 F.3d at 601.
Therefore, we conclude that Conners is entitled to equitable tolling.
Accordingly, we REVERSE the district court’s dismissal of Conners’
petition as untimely and REMAND the case for the district court to decide whether
Conners’ § 2254 petition is meritorious.
6 REVERSED AND REMANDED.