Sergey Spitsyn v. Robert Moore, Warden

Sergey Spitsyn appeals from the district court’s dismissal of his petition for habeas corpus relief under 28 U.S.C. § 2254 as untimely. He argues that the deadline for filing his petition should be subject to equitable tolling because the delay in filing resulted from an “extraordinary circumstance” beyond his control, specifically his attorney’s misconduct. Based upon the unique facts of this case, where an attorney was retained to prepare and file a petition, failed to do so, and disregarded requests to return the files pertaining to petitioner’s case until well after the date the petition was due, we agree that equitable tolling of the deadline is appropriate. We vacate the dismissal and remand the matter to the district court for further proceedings.

I. BACKGROUND

Spitsyn was convicted of murder in the second degree in Washington state court and was sentenced to 164 months’ imprisonment. Spitsyn appealed to the Washington Court of Appeals, which affirmed the conviction in an unpublished opinion on April 16, 1999. The Washington Supreme Court denied review on November 2, 1999. Spitsyn did not thereafter file a petition for a writ of certiorari with the United States…