                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           JUN 05 2017
                   UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


JUAN VALENZUELA,                                 No.   15-56971

              Petitioner-Appellant,              D.C. No.
                                                 2:10-cv-02428-DSF-DFM
 v.

L. SMALL,                                        MEMORANDUM*

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                        Argued and Submitted May 8, 2017
                              Pasadena, California

Before:      KOZINSKI and OWENS, Circuit Judges, and SETTLE,** District
             Judge.


      To justify equitable tolling, Valenzuela must show that he diligently pursued

his rights and that an extraordinary circumstance “stood in his way” and prevented


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
                                                                                  page 2
timely filing. Holland v. Florida, 560 U.S. 631, 649 (2010). “[S]erious instances

of attorney misconduct” can create an extraordinary circumstance sufficient to

justify equitable tolling. Id. at 652; Doe v. Busby, 661 F.3d 1001, 1012–14 (9th

Cir. 2011). We apply this standard leniently when a prisoner proceeds pro se. Fue

v. Biter, 842 F.3d 650, 657 (9th Cir. 2016) (en banc).

      The effects of Melson’s undisputed misconduct, evidenced by professional

misconduct findings and an actual State Bar suspension, lingered beyond the

period of his formal representation. As a result of Melson’s misbehavior,

Valenzuela was left to personally draft and file his state habeas petition from

prison, a decade after his initial conviction, without a single exhausted claim. See

28 U.S.C. § 2254(b)(1)(A). Valenzuela was entitled to adequate time to exhaust

his claims in state court and prepare a federal habeas petition.

      Melson’s conduct was sufficiently extraordinary to justify equitable tolling

not only for the period of his representation, but also for the period (from

November 6, 2008 to July 8, 2009) in which Valenzuela’s properly filed pro se

petitions were pending before the California Court of Appeal and the California

Supreme Court. Valenzuela’s federal filing was thus timely.


      VACATED AND REMANDED.
                                                                            FILED
Juan Valenzuela v L. Small 15-56971
                                                                                JUN 05 2017
SETTLE, District Judge, concurring:                                      MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


      I concur in the judgment reached by the court. In my view, the impediment

that stood in Valenzuela’s way from November 6, 2008 to July 8, 2009 was the

absence of an exhausted claim. See Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th

Cir. 2006) (“Once a district court determines that a habeas petition contains only

unexhausted claims, it need not inquire further as to the petitioner’s intentions.

Instead, it may simply dismiss the habeas petition for failure to exhaust.”).

Although this impediment stood in Valenzuela’s way, our circuit recently held that

district courts may accept petitions asserting only unexhausted claims. Mena v.

Long, 813 F.3d 907, 912 (9th Cir. 2016).
