Christian Walker v. E. McDaniel

MEMORANDUM

Christian Walker appeals from the denial of his petition for habeas corpus, which the district court dismissed as untimely. Walker concedes his petition is untimely but seeks equitable tolling of 28 U.S.C. § 2244 (d)’s one-year statute of limitations based on misconduct of his lawyers and evidence of his actual innocence that was not presented at trial. We affirm the district court’s denial of equitable tolling based on attorney misconduct but vacate the district court’s denial of equitable tolling based on evidence of actual innocence. We remand for an evidentiary hearing to determine if the evidence of Walker’s innocence warrants equitable tolling.

1. Attorney misconduct may warrant equitable tolling if a petitioner has been diligent in the face of egregious misconduct. Holland v. Florida, — U.S. -, 130 S.Ct. 2549, 2562-64 , 177 L.Ed.2d 130 (2010). Drawing every inference in Walker’s favor, his attorneys’ conduct cannot excuse his late filing. Walker first claims that he is entitled to equitable tolling because his attorney on direct appeal failed to notify him that the Nevada Supreme Court had affirmed his conviction. Even if the statute of limitations were tolled…