Felon Ditched by Lawyer |to Get Habeas Hearing

(CN) - A man serving life in Nevada deserves a hearing of his federal habeas petition after being abandoned by his attorney, the 9th Circuit ruled Wednesday, calling it "deeply troubling" that a similar ruling last week involved the same lawyer.

George Gibbs was convicted more than decade ago for various crimes, including manufacture of a controlled substance and possession of child pornography, and received a life sentence with the possibility of parole.

The Nevada Supreme Court affirmed the conviction in 2003, but his attorney at the time failed to hand over the files, and another attorney agreed to file a petition, but never did. This kept Gibbs from seeking post-conviction relief in state court until 2007, according to the 9th Circuit.

The court appointed a third lawyer, Las Vegas attorney Dayvid Figler, to represent Gibbs in his post-conviction appeal to the state supreme court. Figler filed the appeal in August 2009, but allegedly didn't contact Gibbs again until May 25, 2010, promising to let him know when the court made a decision.

But Gibbs later claimed that Figler never held up his end. He said that he found out his petition had been rejected by the state supreme court in June 2010 only after writing the court himself.

Gibbs said that he fired Figler in 2011 and moved ahead on his own with a federal habeas petition. He filed his petition just over two months later, but U.S. District Judge Kent Dawson dismissed it as untimely.

Appealing to the 9th Circuit, Gibbs argued that his petition had been filed outside the one-year deadline only because Figler had mishandled the case by refusing to answer his letters from prison.

A unanimous appellate panel reversed the lower court ruling Wednesday, sending the case back to Las Vegas for a hearing on the merits of Gibbs's federal habeas petition.

"Failure to inform a client that his case has been decided, particularly where that decision implicates the client's ability to bring further proceedings and the attorney has committed himself to informing his client of such a development, constitutes attorney abandonment," wrote Judge Marsha Berzon for the three-judge panel. "Our case law confirms that Figler's behavior in failing to notify Gibbs of the Nevada Supreme Court's decision constituted abandonment, and thereby created extraordinary circumstances sufficient to justify equitable tolling." (Emphasis in original.)

Part of that case law is a September 10 ruling in which the appellate court found that Figler had abandoned another client, Margaret Rudin, who is serving a life sentence for the murder of her husband.

"We note a striking feature of Rudin: the very same attorney who abandoned Gibbs, Dayvid Figler, also abandoned Rudin," Judge Berzon wrote in a footnote to the Gibbs ruling.

The appellate panel in the Rudin case ultimately found Rudin's federal habeas petition untimely because she had not been "diligent in pursuing her rights once counsel had been appointed to replace Figler."

That was not the case with Gibbs, the panel found.

"Because Gibbs was diligent during and after Figler's involvement in this case, our analysis is entirely consistent with Rudin," Berzon wrote. "Figler's abandonment of both Gibbs and Rudin is deeply troubling, to say the least."

Figler said in an interview with Courthouse News on Wednesday that he "respected the court's decision" and was glad that the conduct of Gibbs' original attorneys would be reviewed.

"I diligently represented Mr. Gibbs," he said. "It's all a matter of public record."

"Attorneys, we're thick-skinned you know," he added. "We don't get to go in there and challenge every allegation that's made against us."

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