9th Circuit OKs one late habeas filing, nixes another, says both inmates abandoned by same lawyer
Updated: For the second time in one week, the San Francisco-based 9th U.S. Circuit Court of Appeals has issued a ruling in an inmate’s case seeking to have an untimely habeas petition heard.
Both times, the inmate blamed the delayed filing on an appellate lawyer who they say didn’t do his job. And, in what one appeals court panel described as a “deeply troubling” fact in its latest ruling, the unrelated cases involved the same appellate lawyer, Courthouse News reports.
However, there is one key difference between the two cases:
The 9th Circuit found the delay in filing the habeas petition excusable in its Wednesday opinion (PDF). It held that George Gibbs had been abandoned by Las Vegas lawyer Dayvid Figler during state post-conviction proceedings and reversed a U.S. district judge’s ruling that a federal habeas petition for Gibbs had been filed too late to be heard.
In last week’s ruling (PDF), a three-judge appellate panel agreed with a federal district court that Margaret Rudin’s habeas petition had been filed too late to be heard, even though she, too, had been abandoned by Figler, the 9th Circuit found.
Like Gibbs, she complained that Figler had not responded to multiple attempts to initiate contact and had not kept her informed about the status of post-conviction proceedings.
The 9th Circuit panel that decided the Gibbs case drew a distinction between the two appellate rulings, the Courthouse News article notes.
The panel that decided Rudin’s appeal said her habeas petition was untimely because she didn’t diligently pursue her rights after new appellate counsel replaced Figler.
But the Gibbs panel said Gibbs had been diligent both during and after Figler’s involvement, thus justifying the 9th Circuit ruling to allow his habeas petition to be heard. Nonetheless, “Figler’s abandonment of both Gibbs and Rudin is deeply troubling, to say the least,” Circuit Judge Marsha Berzon wrote in the Gibbs opinion.
At trial, Rudin clearly did not receive effective assistance of counsel, a dissenting judge in her appeal said, but Rudin was stymied from pursuing this legitimate appeal because her habeas petition was not timely filed.
“The majority finds unfairness but concludes that our hands are tied,” wrote District Judge Lynn S. Adelman, who was sitting on the appellate panel by designation. “I disagree with the latter proposition and conclude that,on the egregious facts of this case, the doctrine of equitable tolling is sufficiently expansive to provide petitioner with access to the federal courts.”
Figler told Courthouse News on Wednesday that he “diligently represented” Gibbs, which is “all a matter of public record,” and is glad the 9th Circuit ruling will allow a habeas petition to proceed concerning the work of Gibbs’ trial attorneys.
Contacted by the ABA Journal, he said he had likewise done what he could for Rudin and hopes a further appeal may allow her habeas petition to be heard, too.
He noted that he had not defended either Gibbs or Rudin at trial and said he did not represent them in any federal appellate matters.
For Rudin, he handled ineffective counsel concerns at the state trial court level, after a direct appeal in the case had already been dealt with by the Nevada Supreme Court, Figler told the ABA Journal.
He also represented Gibbs only in state court post-conviction proceedings, at a later stage following his direct appeal to the state supreme court, Figler said.
Figler said he respects the 9th Circuit’s decisions, which were based on the record presented to the court by his former clients’ current lawyers.
“Attorneys, we’re thick-skinned, you know,” he told Courthouse News. “We don’t get to go in there and challenge every allegation that’s made against us.”
Updated at 6 p.m. to include comments made by Figler to the ABA Journal and an additional comment made to Courthouse News.
