                                   RECOMMENDED FOR PUBLICATION
                                   Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                          File Name: 20a0230p.06

                        UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT



 NIMA NASSIRI,                                                  ┐
                                    Petitioner-Appellant,       │
                                                                │
                                                                 >        No. 19-1025
         v.                                                     │
                                                                │
                                                                │
 THOMAS P. MACKIE, Warden,                                      │
                                    Respondent-Appellee.        │
                                                                ┘

                              Appeal from the United States District Court
                         for the Western District of Michigan at Grand Rapids.
                           No. 1:18-cv-00213—Janet T. Neff, District Judge.

                                  Decided and Filed: July 27, 2020

                        Before: CLAY, WHITE, and READLER, Circuit Judges.
                                       _________________

                                               COUNSEL

ON BRIEF: Stuart G. Friedman, Southfield, Michigan, for Appellant.
                                         _________________

                                                OPINION
                                         _________________

        CLAY, Circuit Judge. Petitioner Nima Nassiri appeals the district court’s judgment sua
sponte denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus as barred by the one-
year statute of limitations of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), id.
§ 2244(d)(1).    On appeal, Nassiri argues that the counsel responsible for his late filing
inadequately presented his equitable tolling argument before the district court, due to counsel’s
conflicted interests.
 No. 19-1025                           Nassiri v. Mackie                                    Page 2


       For the reasons set forth in this opinion, we VACATE the district court’s judgment and
REMAND to allow Nassiri an opportunity to develop and present his equitable tolling argument
anew, while represented by unconflicted counsel.

                                         BACKGROUND

       In 2014, a jury convicted Nassiri of the second-degree murder of his wife. People v.
Nassiri, No. 324868, 2016 WL 1391300, at *1 (Mich. Ct. App. Apr. 7, 2016); see Mich. Comp.
Laws § 750.317. He was sentenced to twenty to forty years’ imprisonment. 2016 WL 1391300,
at *1. The Michigan Court of Appeals affirmed Nassiri’s conviction, id., and the Michigan
Supreme Court denied leave to appeal on November 30, 2016, People v. Nassiri, 887 N.W.2d
403 (Mich. 2016) (mem.).

       On March 1, 2018, Nassiri, proceeding through independently retained counsel, filed
with the district court a 28 U.S.C. § 2254 petition for a writ of habeas corpus, asserting two
claims of ineffective assistance of trial counsel. The district court screened that petition pursuant
to Rule 4 of the Rules Governing Section 2254 Cases. A magistrate judge then issued a report
and recommendation (“R&R”) recommending that the court sua sponte deny the petition as
untimely. She concluded that Nassiri’s petition had not been submitted within AEDPA’s one-
year statute of limitations, 28 U.S.C. § 2244(d)(1)(A), after methodically calculating the relevant
dates based on the provisions of Federal Rule of Civil Procedure 6. In particular, she determined
that Nassiri’s time for seeking Supreme Court review of the state court’s judgment expired on
February 28, 2017. His statute of limitations therefore expired on February 28, 2018—one year
later, and one day before his petition was submitted.

       Nassiri’s counsel had not recognized the petition’s untimeliness prior to submission, and
so did not make any arguments in the petition about why his delay should be excused.
Nevertheless, the magistrate judge recognized that the AEDPA statute of limitations was subject
to equitable tolling and addressed this possible defense. She inferred that Nassiri’s counsel had
simply miscalculated the filing deadline and concluded that this was a “garden variety claim of
excusable neglect” that did not warrant equitable tolling. (R&R, R. 3 at PageID #130 (quoting
Holland v. Florida, 560 U.S. 631, 651 (2010)).) She also observed that Nassiri did not claim
 No. 19-1025                           Nassiri v. Mackie                                    Page 3


actual innocence, and thus his failure to comply with the statute of limitations could not be
excused on that basis. After so concluding, she recommended that the district court deny a
certificate of appealability (“COA”), finding that reasonable jurists could not debate whether
Nassiri’s petition was timely.

       Nassiri then filed an objection to the magistrate’s R&R, which was prepared and
submitted by the same counsel responsible for his untimely filing. In it, counsel acknowledged
that Nassiri’s petition “was unknowingly filed one day late” and that she had failed to argue for
equitable tolling because she thought the petition was timely. (Pet’r Obj. to R&R, R. 4 at
PageID #134.) Counsel explained that she had used a mechanical device called a Date Finder to
determine the filing deadline and that the device had wrongly indicated that the deadline was
March 1, 2018. Counsel further noted that Nassiri had relayed to her, via his sister who often
served as an intermediary, “his concern that the March 1 filing deadline was wrong.” (Id. at
#136.) Counsel also submitted an affidavit alongside the objection, in which she acknowledged
that Nassiri’s sister told her of his concern on a phone call and said that she responded by simply
using the Date Finder to again determine that the deadline was March 1, 2018, without
confirming the accuracy of the date through any other method. Based on this fact, counsel
argued in the objection that she was “seriously negligent” when she “failed to use an alternative
method to confirm the DateFinder determination after Petitioner himself questioned the accuracy
of the March 1, 2018 deadline.” (Id. at ##136–37.) This serious negligence, she contended, was
an extraordinary circumstance justifying tolling the statute of limitations.

       On December 7, 2018, the district court issued an opinion adopting the magistrate’s
R&R.    The court acknowledged that Nassiri’s counsel was “ineffective,” but nevertheless
concluded that her ineffectiveness did not merit tolling the statute of limitations because the facts
presented did not show that counsel had “abandoned” Nassiri. (Dist. Ct. Op. & Order, R. 5 at
PageID ##150–51.) It further observed that “Petitioner does not assert that further proceedings,
including an evidentiary hearing, might indicate that he should prevail.”            (Id. at #151.)
Accordingly, the district court denied Nassiri’s petition and declined to issue a COA.

       Nassiri, now represented by new counsel, filed a timely notice of appeal and moved this
Court for a certificate of appealability. This Court granted a COA, concluding that “[b]ecause
 No. 19-1025                          Nassiri v. Mackie                                    Page 4


there is some evidence that Nassiri’s attorney did not present the full picture” of her misconduct
to the district court, “jurists of reason could debate whether the district court was correct in its
procedural ruling.” (Order Granting COA, Doc. No. 9 at 3.)

                                          DISCUSSION

                                                 I.

       This case comes before us in an unusual procedural posture. Nassiri asserts that he is
entitled to equitable tolling based on the misconduct of his former attorney, and he argues for the
first time on appeal that the same former attorney minimized the severity of her misconduct
before the district court. His chances of success hinge on factual allegations not fully presented
to the district court—namely, that his attorney disregarded his requests to submit his petition on
time and that she misled him to believe the petition would be timely filed. Before turning to the
merits of Nassiri’s argument, then, we must determine whether we can consider the new
argument and factual allegations made on appeal.

       As a general rule, this Court declines to consider arguments not presented below, as
“[o]ur function is to review the case presented to the district court, rather than a better case
fashioned after a district court’s unfavorable order.” Hall v. Warden, Lebanon Corr. Inst., 662
F.3d 745, 753 (6th Cir. 2011) (quoting DaimlerChrysler Corp. Healthcare Benefits Plan v.
Durden, 448 F.3d 918, 922 (6th Cir. 2006)). We have explained that it is inappropriate to
consider a new equitable tolling argument on appeal where that argument “was not presented in
the district court and [was] not within the scope of the COA.” Id. at 752.

       This case presents neither of these concerns. Nassiri’s requested relief is a remand to the
district court. This would permit that court to exercise its proper factfinding role and avoid
coopting that role for this Court. And the facts alleged on appeal are clearly within the scope of
the COA granted by this Court—in fact, they are the very reason a COA was granted.

       Moreover, even when faced with these concerns, we may consider new arguments on
appeal if failing to do so would result in a “plain miscarriage of justice.” Id. at 753 (quoting
Durden, 448 F.3d at 922). Before the district court, the same counsel responsible for Nassiri’s
 No. 19-1025                          Nassiri v. Mackie                                    Page 5


delayed filing took up the task of arguing that her conduct was egregious enough to qualify as an
exceptional circumstance preventing timely filing. Nassiri has thus had no previous opportunity
to argue that his attorney misrepresented her conduct. Given this situation, refusing to consider
new facts and argument on appeal would result in a miscarriage of justice, and we will therefore
consider those facts and argument in deciding whether to remand this case.

                                                 II.

       The seriousness of Nassiri’s former counsel’s conflict of interest suggests that a remand
is appropriate here. The Supreme Court has repeatedly expressed concern about attorneys
presenting arguments regarding their own misconduct. In Maples v. Thomas, 565 U.S. 266, 285
n.8 (2012), for instance, the Court cautioned that a law firm representing a criminal defendant
faced “a significant conflict of interest” in representing him on habeas review after it had missed
a state-court deadline, resulting in procedural default. After that error, the Court observed, “the
firm’s interest in avoiding damage to its own reputation was at odds with [the petitioner’s]
strongest argument—i.e., that his attorneys had abandoned him, therefore he had cause to be
relieved from the default.” Id. The Court suggested that the firm should have “cede[d] [the
petitioner’s] representation to a new attorney, who could have made [his] abandonment argument
plain to the Court of Appeals.” Id.; accord Christeson v. Roper, 574 U.S. 373, 378 (2015)
(explaining that “[c]ounsel cannot reasonably be expected” to argue that equitable tolling was
justified by a “serious instance[] of attorney misconduct” when that claim would require counsel
to “denigrate their own performance,” thus “threaten[ing] their professional reputation and
livelihood” (quoting Holland, 560 U.S. at 651–52)).

       This situation presents particular concern because the district court sua sponte denied
Nassiri’s petition as untimely. When a court exercises this power, it must give the petitioner “a
fair opportunity to show why the limitation period should not yield dismissal of the petition.”
Shelton v. United States, 800 F.3d 292, 294 (6th Cir. 2015) (quoting Day v. McDonough, 547
U.S. 198, 210 (2006)). The district court here gave Nassiri his due opportunity to be heard, via
his objection to the magistrate judge’s R&R. But it is not clear that that opportunity was fair,
given the conflicted counsel representing him.
 No. 19-1025                           Nassiri v. Mackie                                     Page 6


          Remand is an appropriate remedy. When faced with lingering questions of fact in
confronting an equitable tolling argument, courts frequently remand for further factual
development and legal argument. See, e.g., Downs v. McNeil, 520 F.3d 1311, 1325 (11th Cir.
2008); Fleming v. Evans, 481 F.3d 1249, 1256–57 (10th Cir. 2007); United States v. Wynn, 292
F.3d 226, 230 (5th Cir. 2002). The Supreme Court did so in the leading case addressing whether
attorney misconduct merits equitable tolling. See Holland, 560 U.S. at 653–54 (remanding to the
Eleventh Circuit “to determine whether the facts in this record entitle [the petitioner] to equitable
tolling, or whether further proceedings, including an evidentiary hearing, might indicate that
respondent should prevail”). This Court did so in Robertson v. Simpson, 624 F.3d 781, 786 (6th
Cir. 2010). See id. (remanding “for a determination of whether [counsel’s] cocaine use and
possible misadvice constitute sufficient extraordinary circumstances to warrant equitable
tolling”); see also, e.g., Ata v. Scutt, 662 F.3d 736, 745 (6th Cir. 2011).

          The Second Circuit also did so in a case substantially similar to this one. See Davis v.
Lempke, 642 F. App’x 31 (2d Cir. 2016) (order). In Davis v. Lempke, the Second Circuit noted
that counsel’s representation of the petitioner on appeal after his own failure to timely file the
habeas petition at issue raised the very same concerns previously set forth by the Supreme Court.
Id. at 32–33 (citing Christeson, 574 U.S. at 378).             The court observed that counsel’s
representation of the petitioner threatened the appellate proceedings’ integrity and public
perception, and thus exercised its discretion to disqualify counsel, even though “nothing about
[counsel’s] performance suggest[ed] that his advocacy before [the court] ha[d] been anything but
zealous.” Id. The court also expressed concern about whether the district court proceedings
were tainted by the same conflict of interest, despite counsel’s efforts to avoid that conflict by
arranging for another attorney to present the petitioner’s equitable tolling argument below. Id. at
33. Thus, despite the fact that the district court “had no particular reason” to recognize the
conflict of interest given this arrangement, the court elected to vacate the district court’s decision
and remand so the district court could hold a hearing on whether the petitioner’s equitable tolling
argument was fairly presented. Id. at 33–34. In this case, we think it appropriate to take similar
action.
 No. 19-1025                           Nassiri v. Mackie                                    Page 7


                                                III.

       Of course, a remand would be pointless if Nassiri had no potentially meritorious
equitable tolling argument to make before the district court. To be entitled to equitable tolling of
the AEDPA statute of limitations, a petitioner must show “‘(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented
timely filing.” Holland, 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)).

       The record leaves open the possibility that Nassiri could make both showings on remand.
Nassiri now alleges that he pursued his rights diligently not just by conveying his concerns about
his petition’s timeliness to his prior counsel at least once, but also by “ma[king] it clear [to
counsel] that [his family] wanted the [p]etition filed earlier.” (Pet’r Br. at 13.) Likewise, Nassiri
argues that counsel did not simply miscalculate the relevant filing deadline, which would
constitute only “a garden variety claim of excusable neglect” and not an “extraordinary
circumstance” preventing timely filing. Holland, 560 U.S. at 651 (quoting Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 96 (1990)). Counsel acknowledged below that she disregarded
Nassiri’s express concern about her incorrect calculation of his filing deadline. Beyond that,
Nassiri now contends that counsel flouted requests to file his petition on time or early and misled
him by “assur[ing] [his] sister (acting as his agent) that a timely petition had been or would soon
be filed.” (Pet’r Br. at 30.) Given Nassiri’s prior counsel’s conflict of interest, it stands to
reason that she may not have presented the district court with the full picture of either Nassiri’s
efforts to ensure that his petition was timely filed or her own misconduct leading up to the
untimely filing.

       Under the analysis applied by the district court, even if Nassiri could fully prove his
factual allegations regarding his prior counsel’s misconduct, they would constitute an
extraordinary circumstance only if that conduct rose to the level of abandonment. In applying
this standard, the district court relied heavily on the Supreme Court’s opinion in Maples v.
Thomas, which it implied narrowed the type of attorney misconduct that could constitute an
extraordinary circumstance to only active abandonment.
 No. 19-1025                         Nassiri v. Mackie                                       Page 8


         We note that this Court has yet to consider how Maples impacts our analysis of
extraordinary circumstances in the context of equitable tolling, but at least two of our sister
circuits have rejected the district court’s reading. See Cadet v. Fla. Dep’t of Corr., 853 F.3d
1216, 1236–37 (11th Cir. 2017) (rejecting the idea that Maples implicitly overruled Holland and
clarifying that attorney misconduct other than abandonment can constitute an extraordinary
circumstance for the purposes of equitable tolling); Luna v. Kernan, 784 F.3d 640, 649 (9th Cir.
2015) (“[I]t’s decidedly unclear to what extent, if any, Maples abrogated Holland’s reasoning on
the question whether attorney misconduct falling short of abandonment may qualify as an
extraordinary circumstance for equitable tolling purposes. For now, then, our cases holding that
egregious attorney misconduct of all stripes may serve as a basis for equitable tolling remain
good law.”); cf. Rivas v. Fischer, 687 F.3d 514, 538 & n.33 (2d Cir. 2012) (reasoning that
Maples modified Holland and adopting the rule that, “in order to rise to the level necessary to
constitute an ‘extraordinary circumstance,’ . . . attorney negligence must be so egregious as to
amount to an effective abandonment of the attorney-client relationship,” without clarifying
whether other forms of attorney misconduct could constitute extraordinary circumstances
(citations omitted)). Our sister circuits more closely dispute whether attorney negligence can
ever ground a showing of extraordinary circumstance post-Maples. Compare Cadet, 853 F.3d at
1236 (concluding based on Maples that attorney “negligence, even gross negligence, alone is
[not] enough to meet the extraordinary circumstance requirement for equitable tolling in a habeas
case”), with Rivas, 687 F.3d at 538 (concluding that negligence can only justify equitable tolling
if it rises to the level of “effective abandonment”), and Luna, 784 F.3d at 649 (reading Maples’
negligence analysis as cabined to the procedural default context, and concluding that “egregious
attorney misconduct,” including negligence, “may serve as a basis for equitable tolling”).

         In any event, we need not decide either question now, given that the full picture of
Nassiri’s counsel’s conduct is not yet before us.      The district court should consider these
questions anew and with the benefit of full briefing from both parties if it becomes necessary to
do so.    At this juncture, the evidence before us does not allow us to conclude that an
“extraordinary circumstance” prevented Nassiri’s timely filing, but also does not preclude such a
conclusion. We are therefore convinced that Nassiri is entitled to a remand in order to reargue
the issue below.
 No. 19-1025                           Nassiri v. Mackie                              Page 9


                                                IV.

       For these reasons, we VACATE the district court’s decision and REMAND in order to
allow Nassiri an opportunity to develop and present his equitable tolling argument anew, while
represented by unconflicted counsel.      On remand, the warden should also be permitted to
respond to Nassiri’s equitable tolling argument prior to any district court ruling.
