                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        MAY 30 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

LARISSA SCHUSTER,                               No.    16-15604

                Petitioner-Appellant,           D.C. No.
                                                1:12-cv-01482-AWI-SAB-HC
 v.

DEBORAH K. JOHNSON,                             MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Eastern District of California
                   Anthony W. Ishii, District Judge, Presiding

                       Argued and Submitted May 15, 2017
                            San Francisco, California

Before: McKEOWN and MURGUIA, Circuit Judges, and RUFE,** District Judge.

      Petitioner Larissa Schuster appeals the district court’s dismissal of her

habeas petition as untimely. The district court granted Schuster’s request for a

certificate of appealability on the following question: “whether some extraordinary

circumstance prevented Petitioner from timely filing her federal habeas petition


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Cynthia M. Rufe, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
such that equitable tolling is warranted.” ER 341. We have jurisdiction pursuant to

28 U.S.C. § 1291 and § 2253. For the reasons that follow, we reverse and remand.

      1.       We review de novo whether equitable tolling is warranted under the

Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Fue v. Biter,

842 F.3d 650, 653 (9th Cir. 2016) (en banc). To be entitled to equitable tolling of

AEDPA’s one-year limitations period, a habeas petitioner must show “‘(1) that

[she] has been pursuing [her] rights diligently, and (2) that some extraordinary

circumstance stood in [her] way’ and prevented timely filing.” Holland v. Florida,

560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418

(2005)). While simple miscalculation of a filing deadline by counsel is not grounds

for equitable tolling, id. at 651-52, “egregious attorney misconduct of all stripes

may serve as a basis for equitable tolling,” Luna v. Kernan, 784 F.3d 640, 649 (9th

Cir. 2015). Furthermore, “[a] number of circuits, including ours, have held that

affirmatively misleading a petitioner to believe that a timely petition has been or

will soon be filed can constitute egregious professional misconduct.” Luna, 784

F.3d at 647.

      2.       The one-day-late filing in this case was due to case mismanagement

that “transcend[ed] garden variety negligence and enter[ed] the realm of

‘professional misconduct[.]’” Id. at 646. The conduct of the organization Petitioner

retained to handle her habeas petition was “‘far enough outside the range of


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behavior that reasonably could be expected’ in the typical case that [it] may be

regarded as ‘extraordinary.’” Id. at 648 (quoting Baldayaque v. United States, 338

F.3d 145, 152 (2d Cir. 2003)). The organization affirmatively misled Schuster to

believe that a licensed attorney would file her petition and do so on time. In reality,

the organization was grossly mismanaged and none of its attorneys ever filed her

petition. See ER 267. Instead, on the eve of the deadline, the organization recruited

Schuster’s trial counsel—whose alleged ineffective assistance was in part the

subject of the habeas petition—to finalize and file the petition. ER 80. Schuster

stated that, but for the organization’s continued false assurances, she would have

filed the petition herself. ER 267.

      3.     Considering collectively the actions of the organization handling

Schuster’s case, Luna, 784 F.3d at 647, Schuster has shown egregious conduct

constituting extraordinary circumstances that stood in her way and prevented

timely filing, Holland, 560 U.S. at 649. Because Schuster has also shown

reasonable diligence in pursuing her rights—she secured the services of the

organization eleven months before her deadline and repeatedly inquired into the

status of her petition—she is entitled to equitable tolling of the AEDPA deadline.

See Holland, 560 U.S. at 653.

      REVERSED and REMANDED.




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