Lawyer’s Misconduct Was ‘Egregious,’ Panel Finds

     SAN FRANCISCO (CN) – Time limits to seek habeas relief may not apply to a man whose lawyer waited more than six years to file his petition, the 9th Circuit ruled Tuesday.
     Benito Luna, who is serving a life sentence for first-degree murder and attempted robbery, filed a pro se habeas petition in March 2004 “well ahead of time,” the 23-page opinion notes.
     But Luna’s appointed counsel, Joseph Wiseman, requested voluntary dismissal of the petition that August, even though a stay was available for Luna. Wiseman filed a new habeas petition in the California Court of Appeal that September.
     “Why it took Wiseman more than three months from the date of his appointment to accomplish the task isn’t apparent, as Wiseman did little more than retype, with minor edits, the text of the pro se petition Luna had filed in the state trial court,” Judge Paul Watford wrote for a three-person panel.
     Luna regularly contacted Wiseman about the status of the petition, and Wiseman assured him that everything was being filed on time, the opinion says.
     “Despite this assurance, Wiseman did not file Luna’s federal habeas petition shortly afterward,” Watford wrote. “He did not file it for another six-plus years.”
     Wiseman apparently believed that by “amending” Luna’s 2004 pro se petition he was exempt from filing deadlines.
     “The question here is whether Wiseman’s actions represent egregious professional misconduct or mere garden variety negligence,” Watford said.
     Egregious misconduct, he decided.
     “Instead of advancing his client’s interests, Wiseman affirmatively undermined them for no good reason,” Watford said.
     The court added that Wiseman clearly dismissed Luna’s original petition because he erroneously believed that all of Luna’s claims were unexhausted, and his actions following the dismissal “compounded the error.”
     “Wiseman’s misconduct consisted of undoing Luna’s diligent work and then misleading Luna to believe for six-plus years that everything was proceeding on track in federal court when that was not the case,” Watford said.
     For these reasons, Luna’s case meets the extraordinary-circumstances requirement for equitable tolling, Watford said.
     On remand, the district court must determine whether Luna demonstrated the required diligence.
     “To establish diligence here, Luna must show not only that he kept in touch with Wiseman, but also that it was reasonable for him to continue relying on Wiseman’s assurances about the progress of the case,” Watford said.
     “Other than the sheer length of the delay, however, we see nothing in the existing record to indicate that Luna should have become aware of the need to take action.”
     Barry Morris, who represents Luna in this appeal, said that the “really awful thing” about Wiseman’s conduct was that “he kept assuring [Luna] that everything was under control.”
     “What else was my client to do?” the Walnut Creek, Calif., attorney said in an interview.
     Wiseman could not be reached for comment.

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