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Name: Gibbs v. Legrand
Case #: 12-16859
Court: US Court of Appeals
District 9 Cir
Opinion Date: 09/17/2014

Defense attorney’s failure to inform defendant that his state postconviction writ petition was denied constituted client abandonment, tolling the AEDPA filing deadline. Gibbs was convicted of various offenses in Nevada and received a life sentence. He pursued a direct appeal and then a postconviction relief proceeding (PCR) through the Court of Appeal and Nevada Supreme Court. During PCR proceedings, Gibbs complained to the Nevada State Bar on a number of occasions of his difficulties in contacting his appointed attorney. In June 2010, the Supreme Court denied Gibbs’ PCR petition. Defense counsel did not inform Gibbs of this decision. Gibbs continued to write counsel but, not receiving a response, asked the Supreme Court for the docket in his case. In December 2010 Gibbs discovered his petition had been denied. Still, he wrote counsel seeking help, until, not receiving a response, he “terminated” his attorney. He arranged to retrieve his counsel’s file and, on May 3, 2011, mailed his federal writ petition. The District Court denied the petition as untimely and Gibbs appealed. Held: Reversed. Under AEDPA, a state prisoner generally has one year from the date his state court conviction becomes final to file a federal writ petition (28 USC § 2244(d)(1)(A)). This “period is tolled while a properly filed state post-conviction petition is pending,” and is subject to equitable tolling if the petitioner has been diligent in pursuing his rights but some extraordinary circumstance prevented timely filing. “An attorney’s failure to communicate about a key development in his client’s case can . . . amount to attorney abandonment and thereby constitute an extraordinary circumstance.” Here, the attorney’s failure to inform Gibbs that his case had been decided, after promising to do so, constituted attorney abandonment, and created extraordinary circumstances sufficient to justify equitable tolling. Further, Gibbs exercised reasonable diligence both during the time his efforts to seek relief were being thwarted by his attorney’s inaction and after the extraordinary circumstance was lifted.