NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 23 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRAYVON R CAIL, No. 23-2774 D.C. No. Petitioner - Appellant, 2:22-cv-00031-LK v.

MEMORANDUM*

DONALD HOLBROOK,

Respondent - Appellee,

and

STATE OF WASHINGTON,

Respondent.

Appeal from the United States District Court for the Western District of Washington Lauren J. King, District Judge, Presiding

Argued and Submitted December 4, 2024 Seattle, Washington

Before: W. FLETCHER, BERZON, and R. NELSON, Circuit Judges. Dissent by Judge R. NELSON.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Habeas petitioner Cail Holbrook appeals the district court’s order dismissing

his federal habeas petition as untimely and denying him an evidentiary hearing on

the issue of whether he is entitled to equitable tolling. The statute of limitations may

be equitably tolled if Cail shows “‘(1) that he has been pursuing his rights diligently,

and (2) that some extraordinary circumstance stood in his way’ and prevented timely

filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo,

544 U.S. 408, 418 (2005)). Because Cail has averred sufficient facts to warrant an

evidentiary hearing, we reverse and remand.

1. During his direct appeal and state collateral proceedings, Cail was

represented by an attorney from the Law Offices of John Henry Browne (“Browne”).

Cail asserts that his former attorney’s misconduct caused his untimely filing. In

assessing whether an attorney’s conduct constitutes an extraordinary circumstance,

we differentiate between “professional misconduct,” which meets the extraordinary

circumstances standard, and “garden variety negligence,” which does not. See Luna

v. Kernan, 784 F.3d 640, 646 (9th Cir. 2015). An attorney’s miscalculation of the

limitations period constitutes garden variety negligence and does not warrant

equitable tolling. See Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001); Doe v.

Busby, 661 F.3d 1001, 1011-12 (9th Cir. 2011); Holland, 560 U.S. at 651-52. In

contrast, “affirmatively misleading a petitioner to believe that a timely petition has

2 been or will soon be filed can constitute egregious professional misconduct”

warranting equitable tolling. Luna, 784 F.3d at 647; see also Doe, 661 F.3d at 1011.

The State contends that under Maples v. Thomas, 565 U.S. 266 (2012), no

attorney misconduct falling short of abandonment can constitute an extraordinary

circumstance for equitable tolling purposes. Luna explicitly rejected that

proposition, clarifying that “egregious attorney misconduct of all stripes may serve

as a basis for equitable tolling.” 784 F.3d at 649.

2. On appeal, Cail contends only that the district court erred in denying his

request for an evidentiary hearing on the issue of equitable tolling. A petitioner

“should receive an evidentiary hearing when he makes ‘a good-faith allegation that

would, if true, entitle him to equitable tolling.’” Roy v. Lampert, 465 F.3d 964, 969

(9th Cir. 2006) (emphasis in original) (quoting Laws v. Lamarque, 351 F.3d 919,

921 (9th Cir. 2003)).1 Alternatively, “when the record ‘is amply developed’ and does

not indicate the [extraordinary circumstance] caused the untimely filing, a district

court need not hold evidentiary hearings to further develop the factual record.”

1 The State asserts that submission of evidence substantiating the allegations supporting equitable tolling is necessary to obtain an evidentiary hearing, relying on Morris v. California, 966 F.2d 448, 455 (9th Cir. 1991). Morris addressed whether a petitioner could procure an evidentiary hearing on the issue of her attorney’s alleged conflict of interest. In contrast, to obtain an evidentiary hearing in the equitable tolling context, good faith allegations suffice. See Roy, 465 F.3d at 969; Laws, 351 F.3d at 921; Roberts v. Marshall, 627 F.3d 768, 772 (9th Cir. 2010); Orthel v. Yates, 795 F.3d 935, 940 (9th Cir. 2015); Sossa v. Diaz, 729 F.3d 1225, 1227-28, 1236 (9th Cir. 2013).

3 Orthel v. Yates, 795 F.3d 935, 940 (9th Cir. 2015) (quoting Roberts v. Marshall, 627

F.3d 768, 773 (9th Cir. 2010)). A pro se petitioner’s allegations are construed

liberally in assessing whether they warrant an evidentiary hearing. Roy, 465 F.3d at

970.

The underdeveloped record in this case leaves it unclear what representations

Browne’s office made to Cail regarding his federal petition. The only written

representation agreement in the record makes no mention of a federal habeas

petition. 2 Likewise, Browne’s declaration does not indicate that he agreed to

represent Cail during the federal proceedings, and Cail’s habeas petition was filed

pro se. But other evidence in the record suggests that the Browne firm did agree to

assist Cail with his federal petition.

First, Cail has averred that he “was under the impression that the firm would

handle the habeas corpus petition.” Second, a paralegal from Browne’s firm

continued to communicate with Cail about his federal habeas claim. Specifically, the

paralegal provided Cail with a filled-out habeas petition along with instructions for

filing it with the district court. Third, Cail asserts that “[a]ll notices from the [federal]

court w[ere] sent through Mr. Browne[’]s office,” and there is evidence in the record

2 The written representation agreement in the record defines the scope of services as including only “Sentencing, Arrest of Judgment, if appropriate, and Direct Appeal.” Browne’s representation, however, extended beyond the terms of this agreement, as Browne represented Cail during state collateral proceedings. The initial agreement is therefore not a reliable indication of the scope of Browne’s representation of Cail.

4 that Browne’s paralegal forwarded Cail documents that had been filed in Cail’s

federal habeas case, corroborating Cail’s assertion. 3 This conduit arrangement

would have been a curious one unless the Browne firm had agreed to assist with

Cail’s federal habeas petition.

This evidentiary uncertainty highlights the need for an evidentiary hearing to

determine what representations Browne made to Cail regarding the Browne firm’s

involvement in the federal habeas petition, and when.

3. Beyond making allegations and providing evidence of Browne’s assistance

with his federal petition, Cail has also suggested the possibility of affirmative

misrepresentations or other professional misconduct. He stated that he was “not

informed of Mr. Browne’s discontinued service until after this Court sent him a

notice . . . [e]ffectively stating that Cail was time-barred.”4 If true, the fact that Cail

was not told that Browne was not representing him until after Cail learned of the

timeliness problems from the court raises the possibility that Browne made

misrepresentations to Cail regarding his habeas petition. Elsewhere, Cail alleged that

3 The district court disregarded the evidence that Browne’s paralegal continued to contact Cail about his federal habeas petition, noting that the statute of limitations had already run by the time of the paralegal’s communications. In doing so, the district court failed to consider whether those communications were probative of a prior agreement for assistance that may have impacted Cail’s decision not to file a habeas petition within the limitations period. 4 Presumably, the “notice” Cail referenced was the magistrate judge’s report & recommendation, which advised the district judge to hold that Cail’s claim is time barred.

5 his untimely habeas petition resulted from the fact that Browne “didn’t disclose

notices in time and failed to timely file a response.” Although it is unclear what

notices were not disclosed or what response was not timely filed, these allegations,

along with the unusual circumstances surrounding Browne’s representation, suggest

the possibility of professional misconduct warranting equitable tolling.

While the evidence proffered so far certainly does not establish that Cail is

entitled to equitable tolling, “we do not require [Cail] to carry a burden of persuasion

at this stage in order to merit further investigation into the merits of his argument for

tolling.” Laws, 351 F.3d at 924. Rather, it is enough for us to conclude that “[t]he

record in this case is patently inadequate . . . to allow us or any other court to evaluate

the strength of [Cail’s] claim.” Id. Moreover, we read Cail’s allegations in light of

the fact that he was proceeding pro se. “[E]ven though pro se status alone is not

enough to warrant equitable tolling, it informs and colors the lens through which we

view the filings, and whether these filings made sufficient allegations.” Roy, 465

F.3d at 970. Interpreted in this light, we conclude that Cail’s allegations suffice to

trigger the need for an evidentiary hearing and remand for that purpose.

4. To obtain equitable tolling, Cail must also show that he diligently pursued

his rights. See Holland, 560 U.S. at 653. “The diligence required for equitable tolling

purposes is reasonable diligence, not maximum feasible diligence.” Id. (citation and

internal quotation marks omitted). “Reasonable diligence requires only ‘the effort

6 that a reasonable person might be expected to deliver under his or her particular

circumstances.’” Fue v. Biter, 842 F.3d 650, 654 (9th Cir. 2016) (quoting Doe, 661

F.3d at 1015).

Here, the diligence determination turns on the same factual issues that

underlie the extraordinary circumstances inquiry. If, for example, Browne’s firm

made misleading assurances or omissions regarding the timeliness of Cail’s federal

petition, Cail would have had no reason to file his federal petition earlier than he did.

Although not dispositive, the fact that Cail filed his federal habeas petition less than

one month after the mandate issued in his state proceedings suggests that he intended

all along to pursue his federal petition with diligence. Accordingly, on remand, the

evidentiary hearing should include an opportunity to provide evidence of and

testimony on Cail’s diligence.

We reverse the dismissal of the petition and remand for an evidentiary hearing

on whether Cail is entitled to equitable tolling.

REVERSED and REMANDED.

7

FILED

Cail v. Holbrook, No. 24-2774 DEC 23 2024

MOLLY C. DWYER, CLERK

R. Nelson, J., dissenting: U.S. COURT OF APPEALS

Trayvon Cail is not entitled to an evidentiary hearing because he has not made

a good-faith allegation “that would, if true, entitle him to equitable tolling.” Roy v.

Lampert, 465 F.3d 964, 969 (9th Cir. 2006) (cleaned up). Equitable tolling applies

only if an “extraordinary circumstance” prevented Cail from filing his habeas

petition on time. Holland v. Florida, 560 U.S. 631, 649 (2010). Counsel’s

negligence in failing to meet a deadline is not an extraordinary circumstance. Id. at

651–52.

Cail alleges that John Henry Browne agreed to represent him in habeas

proceedings but missed the deadline to file a habeas petition. Even if true, these

facts, on their own, “suggest simple negligence.” See id. at 652. And counsel’s

negligence is not an extraordinary circumstance. Id. at 651–52.

To be sure, Cail and the majority assert that Browne led Cail to believe that

his representation would extend to habeas proceedings. But this alleged

misrepresentation does not change the analysis. Even if Browne indicated that he

would represent Cail in habeas proceedings, Cail has still at most alleged that

Browne represented him but failed to timely file a petition. Again, those facts, by

themselves, “suggest simple negligence.” Holland, 560 U.S. at 652; see also Luna

1 v. Kernan, 784 F.3d 640, 646–48 (9th Cir. 2015) (emphasizing that counsel’s errors

went beyond merely failing to file a petition on time (quotation omitted)).

Because Cail has not alleged any fact that, if true, would entitle him to

equitable tolling, the district court did not abuse its discretion in declining to hold an

evidentiary hearing. The majority vacates the district court’s dismissal of the habeas

petition, reverses the denial of an evidentiary hearing, and remands for the district

court to hold a hearing on whether Cail is entitled to equitable tolling. Because I

would affirm the district court, I respectfully dissent.

2