Payman Borhan v. Kathleen Allison

MEMORANDUM

Payman Borhan, an inmate of the California Department of Corrections and Rehabilitation, appeals the district court’s denial of relief sought pursuant to Rule 60(b)(6) of the Federal Rules of Civil Procedure. Borhan sought relief from the district court’s denial of his 28 U.S.C. § 2254 application for a writ of habeas corpus, which was untimely filed due to his counsel’s error. We granted Borhan a certificate of appealability (“COA”) to decide “whether the district court abused its discretion in denying appellant’s motion for relief from judgment under [Rule] 60(b) based on federal habeas counsel’s alleged misconduct.” The COA also ordered counsel, Lisa M. Bassis, to “show cause why the court should not impose sanctions or initiate disciplinary proceedings against her.”

The issue presented is whether the district court should have held a hearing to determine whether the facts surrounding Ms. Bassis’s untimely filing of Borhan’s § 2254 petition created an “extraordinary circumstance” warranting equitable tolling pursuant to Holland v. Florida, 560 U.S. 631 , 130 S.Ct. 2549 , 177 L.Ed.2d 130 (2010). Because Borhan’s allegations are suggestive of extraordinary…