Rudin v. Myles

781 F.3d 1043, 2015 WL 1019959
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 10, 2014
DocketNo. 12-15362
StatusPublished
Cited by102 cases

This text of 781 F.3d 1043 (Rudin v. Myles) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rudin v. Myles, 781 F.3d 1043, 2015 WL 1019959 (9th Cir. 2014).

Opinions

Concurrence by Judge ADELMAN.

Dissent by Judge O’SCANNLAIN.

ORDER AND OPINION

ORDER

The opinion filed on September 10, 2014, and appearing at 766 F.3d 1161, is withdrawn. The superseding opinion will be filed concurrently with this order. The parties may file additional petitions for rehearing or rehearing en banc.

OPINION

MURGUIA, Circuit Judge:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year period of limitation within which an individual seeking relief must file an application for a writ of habeas corpus. See 28 U.S.C. § 2244(d)(1). Once that one-year period begins to run, it may be tolled only in certain circumstances. See id. § 2244(d)(2) (providing for statutory tolling); Holland v. Florida, 560 U.S. 631, 634, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010) (providing for equitable tolling). The question this case presents is whether Petitioner Margaret Rudin is entitled to statutory or equitable tolling of the AEDPA limitations period, excusing her six-year delay in filing her application. We conclude that she is entitled to equitable tolling sufficient to excuse her delay. We therefore reverse the district court’s order dismissing Rudiris application as untimely.

I. FACTS

The facts giving rise to this appeal are essential to our tolling analysis. We therefore describe those facts in more detail than we otherwise might.

A. Rudin’s Criminal Trial and Direct Appeal Proceedings

In April 1997, Rudin was charged with murder with the use of a deadly weapon and unauthorized surreptitious intrusion of privacy by listening device, both in violation of Nevada state law. See Nev.Rev. Stat. §§ 200.010; 193.165; 200.650. Those charges arose out of the death of Rudiris husband Ron, whose charred remains had been discovered in Lake Mojave a few years earlier. See Rudin v. State, 120 Nev. 121, 86 P.3d 572, 577 (2004). After pleading not guilty to both charges, Rudin retained the services of a private attorney, Michael Amador, to represent her at trial. Her trial began in the Eighth Judicial District Court of the State of Nevada (the “trial court” or the “court”) on March 2, 2001. '

Two-and-a-half weeks before trial commenced, it became clear to the court that Amador alone could not adequately defend Rudin. After a series of pretrial delays, the court appointed attorney Thomas Pita-ro to assist Amador with Rudiris defense. Pitaro quickly realized that Amador had not yet reviewed “thousands of pages of discovery,” and Pitaro soon became “concerned about the preparation that had been done for the trial.” Amador had not, for example, interviewed critical witnesses. As a result, the defense team would learn, for the first time at trial, the content of various witnesses’ testimony. In at least one instance, when a witness was called to the stand, Pitaro “went to get from Mr. Amador the [witness’s] file and found nothing inside.” As Pitaro would later de[1047]*1047scribe, “the preparation that [one] would hope normally would be done before trial starts was being done during the trial.”

But even with Pitaro’s help, Rudin’s trial was replete with alleged errors and professional misconduct on the part of the defense team. Amador, for example, began with an opening statement that had “no cohesive theme.” Over the course of trial, Amador was accused of creating a prejudicial conflict of interest by allegedly negotiating agreements for the literary and media rights to his representation. Rudin, 86 P.3d at 587-88. His general lack of preparation prompted Rudin twice to move for a mistrial, but both of her motions were denied. Id. at 579-80, 585-86. Pita-ro, who was appointed after Amador’s opening statement, described the representation as “‘a farce, and that disturbs me as an attorney.... This has become a sham, a farce and a mockery.’ ”1 Id. at 590 (Rose, J., dissenting).

A jury convicted Rudin on both charges. For her conviction for murder with the use of a deadly weapon, the trial court imposed a sentence of life imprisonment with a possibility of parole after twenty years. For her conviction for unauthorized surreptitious intrusion of privacy by a listening device, the court imposed a one-year sentence, to run concurrently with Rudin’s life sentence. Rudin’s judgment of conviction was entered on September 17, 2001.

On April 1, 2004, the Nevada Supreme Court affirmed both of Rudin’s convictions . on direct appeal. See Rudin v. State, 120 Nev. 121, 86 P.3d 572 (2004). The court concluded that Amador’s alleged conflict of interest and ineffectiveness, while sufficient to cause “concern,” “must be examined in a separate post-conviction proceeding at which time Rudin’s post-conviction attorney will examine the entire record, interview all relevant witnesses and present the matter to the district court for a full and complete airing and decision.” Id. at 588.2 The Nevada Supreme Court’s remittitur issued on April 27, 2004, and Rudin did not seek a writ of certiorari from the U.S. Supreme Court. The deadline for her to do so was June 30, 2004.3

B. Rudin’s Petitions for Collateral Relief

Around the time that appellate review of Rudin’s judgment of conviction concluded, two statutes of limitation began to run, both relating to her ability to seek collateral review of the errors that she alleged had affected her underlying criminal trial. The first limitations period is defined by state law and requires, except under certain circumstances, that a state-court petition for post-conviction relief be filed within one year of the Nevada Supreme Court issuing its remittitur:

Unless there is good cause shown for delay, a petition that challenges the validity of a judgment or sentence must be filed within 1 year after entry of the judgment of conviction or, if an appeal has been taken from the judgment, within 1 year after the Supreme Court issues [1048]*1048its remittitur. For the purposes of this subsection, good cause for delay exists if the petitioner demonstrates to the satisfaction of the court:
(a) That the delay is not the fault of the petitioner; and
(b) That dismissal of the petition as untimely will unduly prejudice the petitioner.

Nev.Rev.Stat. § 34.726(1). The second limitations period is defined by AEDPA, and it also establishes a one-year deadline for a state prisoner seeking a federal writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The AEDPA limitations period runs from the latest of four specified dates:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

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781 F.3d 1043, 2015 WL 1019959, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rudin-v-myles-ca9-2014.