United States District Court, D. Oregon
W. LOEWY Assistant Federal Public Defender Attorney for
F. ROSENBLUM Attorney General NICHOLAS M. KALLSTROM Assistant
Attorney General Attorneys for Respondent
OPINION AND ORDER
J. BROWN, UNITED STATES DISTRICT JUDGE.
an inmate at the Coffee Creek Correctional Institution,
brings this habeas corpus action pursuant to 28 U.S.C. §
2254. For the reasons that follow, the Court DENIES the
Petition for Writ of Habeas Corpus (ECF No. 1).
January 18, 2011, a Multnomah County grand jury indicted
Petitioner on six counts of Sodomy in the First Degree, seven
counts of Using a Child in a Display of Sexually Explicit
Conduct, and six counts of Sexual Abuse in the First Degree.
Resp. Exh. 102, pp. 1-3. Pursuant to a plea agreement, on
December 2, 2011, the trial court entered a judgment of
conviction on two counts of Sodomy in the First Degree and
two counts of Using a Child in a Display of Sexually Explicit
Conduct. Resp. Exh. 101. The trial judge sentenced Petitioner
to a total of 25 years of imprisonment. Resp. Exh. 101.
did not file a direct appeal. On November 8, 2012, Petitioner
filed a petition for state post-conviction relief
("PCR"). The PCR trial court denied relief. Resp.
Exh. 126. Petitioner appealed, but the Oregon Court of
Appeals affirmed without opinion and the Oregon Supreme Court
denied review. Lambert v. Steward, 276
Or.App. 461, 368 P.3d 85, rev. denied, 359 Or. 166,
376 P.3d 281 (2016). The appellate judgment issued on June 3,
2016. Resp. Exh. 132.
February 28, 2017, Petitioner filed her Petition for Writ of
Habeas Corpus in this Court. Petitioner concedes her Petition
was untimely. Petitioner argues, however, that the Court
should equitably toll the statute of limitations and consider
the Petition on its merits. Respondent disagrees, and asks
the Court to dismiss the action as untimely.
tolling is available to toll the one-year statute of
limitations available to 28 U.S.C. § 2254 habeas corpus
cases. Holland v. Florida, 560 U.S. 631, 645 (2010)
. A litigant seeking to invoke equitable tolling must
establish: (1) that she has been pursuing her rights
diligently; and (2) that some extraordinary circumstance
prevented her from timely filing the petition. Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005). A petitioner who
fails to file a timely petition due to her own lack of
diligence is not entitled to equitable tolling. Tillema
v. Long, 253 F.3d 494, 504 (9th Cir. 2001),
overruled on other grnds by Pliler v. Ford, 542 U.S.
225, 231 (2004) . The petitioner bears the burden of showing
that this "extraordinary exclusion" should apply.
Miranda v. Castro, 292 F.3d 1063, 1065 (9th Cir.
2002). The test for equitable tolling "is a very high
bar, and is reserved for rare cases." Yow Ming Yeh
v. Martel, 751 F.3d 1075, 1077 (9th Cir.), cert,
denied, 135 S.Ct. 486 (2014).
claims for equitable tolling based upon attorney-error do not
arise to the level of an extraordinary circumstance
sufficient to warrant equitable tolling. See, e.g., Frye
v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001)
(attorney negligence in general does not justify equitable
tolling); Holland, 560 U.S. at 651-52 ("garden
variety" negligence does not warrant equitable tolling).
"Justice Alito explained his understanding of the logic
behind this framework, reasoning that, 'the principal
rationale . . . is that the error of an attorney is
constructively attributable to the client and thus is not a
circumstance beyond the litigant's control.'"
Gibbs v. Legrand, 767 F.3d 879, 885 (9th Cir. 2014)
(quoting Holland, 560 U.S. 657 (Alito, J.,
concurring)), cert. denied 135 S.Ct. 1708 (2015).
Equitable tolling based upon attorney performance is only
appropriate where: (1) an attorney's performance goes
beyond error and amounts to "egregious professional
misconduct;" or (2) the attorney abandons her client
altogether. Luna v. Kernan, 784 F.3d 640, 646 (9th
the § 2244(d) limitation period began to run on January
3, 2012, the date that the 30-day time period expired for
Petitioner to file a direct appeal.  Prior to the expiration of
the time to appeal her conviction and sentence,
Petitioner's family retained attorney Andy Simrin to
represent Petitioner. Simrin advised Petitioner to forego a
direct appeal in favor of filing a PCR petition.
to filing the state PCR petition, Simrin wrote Petitioner
three times advising her of the time limitations for filing a