                                                                            FILED
                            NOT FOR PUBLICATION                              AUG 15 2013

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


PAYMAN BORHAN,                                    No. 11-55101

              Petitioner - Appellant,             D.C. No. 2:06-cv-06278-CAS-SH

  v.
                                                  MEMORANDUM*
KATHLEEN ALLISON, Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                    Christina A. Snyder, District Judge, Presiding

                         Argued and Submitted July 9, 2013
                               Pasadena, California

Before: BENAVIDES,** BYBEE, and NGUYEN, Circuit Judges.

       Payman Borhan, an inmate of the California Department of Corrections and

Rehabilitation, appeals the district court’s denial of relief sought pursuant to Rule

60(b)(6) of the Federal Rules of Civil Procedure. Borhan sought relief from the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
district court’s denial of his 28 U.S.C. § 2254 application for a writ of habeas

corpus, which was untimely filed due to his counsel’s error. We granted Borhan a

certificate of appealability (“COA”) to decide “whether the district court abused its

discretion in denying appellant’s motion for relief from judgment under [Rule]

60(b) based on federal habeas counsel’s alleged misconduct.” The COA also

ordered counsel, Lisa M. Bassis, to “show cause why the court should not impose

sanctions or initiate disciplinary proceedings against her.”

      The issue presented is whether the district court should have held a hearing

to determine whether the facts surrounding Ms. Bassis’s untimely filing of

Borhan’s § 2254 petition created an “extraordinary circumstance” warranting

equitable tolling pursuant to Holland v. Florida, 130 S. Ct. 2549 (2010). Because

Borhan’s allegations are suggestive of extraordinary circumstances, we vacate the

judgment and remand the case to the district court to hold an evidentiary hearing.

      We first address the State’s argument that we lack jurisdiction over this

appeal. Borhan requested a COA with respect to the district court’s November 1,

2010 and December 9, 2010 orders denying Rule 60(b) relief. The COA, which

referred to Borhan’s “motions,” encompassed both the November 1 and December

9 orders. Therefore, our review of both orders does not exceed the scope of the

COA. See Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir. 1999). Borhan also


                                           2
filed notices of appeal from the November 1 and December 9 orders within thirty

days, thus making the notices of appeal timely. See FED. R. APP. P. 4(a)(1)(A).

Since there are no pending motions with respect to the orders, the district court

does not retain jurisdiction over them. See FED. R. APP. P. 4(a)(4)(B)(i).

      As to the primary issue on appeal, Borhan is entitled to an evidentiary

hearing on his equitable tolling claim if he has made “a good-faith allegation that

would, if true, entitle him to equitable tolling.” Roy v. Lampert, 465 F.3d 964, 969

(9th Cir. 2006) (internal quotation marks omitted). In Holland, the Supreme Court

held that an attorney’s professional misconduct could, in some cases, “amount to

egregious behavior and create an extraordinary circumstance that warrants

equitable tolling.” 130 S. Ct. at 2563. The Ninth Circuit has applied a similar

“egregious” misconduct standard both before and after Holland. See Towery v.

Ryan, 673 F.3d 933, 936 (9th Cir. 2012); Spitsyn v. Moore, 345 F.3d 796, 800 (9th

Cir. 2003).

      In his motions filed in the district court, Borhan alleged that Ms. Bassis

engaged in grossly negligent behavior warranting equitable tolling. Beyond the

uncontested fact that Bassis filed an untimely § 2254 petition based on her reliance

on out-of-circuit case law directly contradicting Ninth Circuit case law, compare

White v. Klitzkie, 281 F.3d 920 (9th Cir. 2002), with Abela v. Martin, 348 F.3d 164


                                          3
(6th Cir. 2003) (en banc), overruled by Lawrence v. Florida, 549 U.S. 327 (2007),

Borhan alleged, in addition to other misconduct, that Bassis ignored his

communications questioning her calculation of the filing deadline and asking her to

conduct additional research. See ER 92, 103–10, 138, 211–12. Bassis filed a

declaration in the district court explaining her reliance on Abela, but that

declaration does not address Borhan’s subsequent allegations of misconduct. In

response to this court’s show-cause order, Bassis also filed two statements

vigorously denying Borhan’s allegations, but these statements were not before the

district court and thus cannot be considered in reviewing the court’s denial of Rule

60(b) relief. See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990).

      Based only on the record before the district court, and assuming Borhan’s

allegations are true, we conclude that Bassis’s conduct suggests that extraordinary

circumstances existed to support granting equitable tolling. Accordingly, Borhan

is entitled to an evidentiary hearing on his allegations to determine if he is, in fact,

eligible for equitable tolling. See Roy, 465 F.3d at 969; see also Whalem/Hunt v.

Early, 233 F.3d 1146, 1148 (9th Cir. 2000) (en banc) (“Because determinations

of . . . whether there are grounds for equitable tolling are highly fact-dependent,

and because the district court is in a better position to develop the facts and assess




                                            4
their legal significance in the first instance, we believe the best course is to remand

to the district court for appropriate development of the record.”).

      We defer consideration of sanctions or disciplinary action until after the

district court’s hearing. This panel does not retain jurisdiction over the

post-hearing decision regarding sanctions and disciplinary proceedings. All other

pending motions are denied.

      VACATED AND REMANDED.




                                           5
