United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
a habeas corpus proceeding under 28 U.S.C. § 2254
brought by Petitioner Christopher Brian Kinder, a Nevada
prisoner who is represented by counsel. Currently before the
Court is Respondents' Motion to Dismiss
(“Motion”) (ECF No. 40. Kinder has opposed (ECF
No. 45), and Respondents have replied (ECF No. 55). For the
reasons discussed below, Respondents' motion is granted
in part and denied in part.
challenges his 2012 state court conviction of two counts of
Possession of Child Pornography pursuant to a conditional
guilty plea. (ECF No. 41-24.) The guilty plea was conditioned
upon Kinder's right to appeal a decision by the state
district court for Nye County, Nevada, denying his motion to
suppress evidence. (Id.) On November 29, 2012, the
state court entered a judgment of conviction sentencing
Kinder to 28 to 72 months for each count, with the second
sentence running consecutively to the first. (ECF No. 41-27.)
Kinder appealed through his trial counsel, Harold Kuehn. (ECF
No. 41-29.) The Nevada Supreme Court affirmed Kinder's
convictions on direct appeal and issued a remittitur on May
20, 2014. (ECF Nos. 42-12, 42-13.)
2015, Kinder sent a letter to the Nevada Supreme Court asking
when his direct appeal had been decided, and why he had not
been notified. (ECF No. 42-14 at 23.) Kinder claimed Kuehn
was under investigation facing possible disbarment,
Kinder had not received notice of the appellate decision or
his case file. (Id.) In response, the Nevada Supreme
Court sent Kinder a letter, stating that a decision was
reached in his case, a remittitur had issued, and the time
for filing a rehearing petition had expired. (Id. at
24.) Thus, Kinder's letter was returned unfiled, and he
was instructed not to resubmit the document. (Id.)
filed a pro se state habeas petition on August 24,
2015. (ECF No. 42-14.) He also moved for withdrawal of his
counsel and delivery of records. (ECF Nos. 42-15, 42-16.) The
state district court denied the petition as time-barred in
October 2015. (ECF No. 42-20.) Kinder appealed. (ECF No.
42-21.) The Nevada Court of Appeals affirmed the state
district court's ruling in May 2016. (ECF No. 42-29.)
Kinder petitioned for review. (ECF No. 42-30.) On July 22,
2016, the Nevada Supreme Court denied review. (ECF No.
42-32.) Remittitur issued on August 16, 2016. (ECF No.
Federal Habeas Action
27, 2016, Kinder initiated this federal habeas proceeding
pro se. (ECF No. 1.) The Court subsequently
appointed counsel and granted leave to amend the petition.
(ECF Nos. 15, 18.) Counsel filed a Second Amended Petition
(ECF No. 39) (“Petition”) in October 2018,
alleging four grounds for relief under the Sixth and
Fourteenth Amendments of the United States Constitution:
1. Kinder's trial attorney ineffectively failed to
contest the probable cause for the /// search warrant of his
2. Kinder's attorney ineffectively failed to object when
the court imposed lifetime supervision even though he did not
meet the criteria for this requirement.
3. Kinder's attorney did not tell him one count of
possession was the maximum the State could prove under Nevada
4. Kinder's attorney was ineffective for failing to
correct faulty information in Kinder's Presentence
Investigation Report (“PSI”).
now move to dismiss the Petition as untimely, unexhausted,
and/or procedurally defaulted.
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) establishes a one-year period of
limitations for federal habeas petitions filed by state
prisoners under 28 U.S.C. § 2254. The one-year
limitation period begins to run from the latest of four
possible triggering dates, with the most common being the
date on which the petitioner's state court conviction
became final (by either the conclusion of direct appellate
review or the expiration of time for seeking such review). 28
U.S.C. § 2244(d)(1)(A).
concedes that his petition was filed after the expiration of
the one-year statutory period. He argues, however, that he is
entitled to equitable tolling to excuse his untimely filing
based on extraordinary circumstances.
tolling is appropriate only if a petitioner can show that:
(1) he has been pursuing his rights diligently, and (2) some
extraordinary circumstance stood in his way and prevented
timely filing. Holland v. Florida, 560 U.S. 631, 649
(2010). Equitable tolling is “unavailable in most
cases, ” Miles v. Prunty, 187 F.3d 1104, 1107
(9th Cir. 1999), and “the threshold necessary to
trigger equitable tolling is very high, lest the exceptions
swallow the rule, ” Miranda v. Castro, 292
F.3d 1063, 1066 (9th Cir. 2002) (quotation omitted). The
petitioner ultimately has the burden of proof on this
“extraordinary exclusion.” Id. at 1065.
He accordingly must demonstrate a causal relationship between
the extraordinary circumstance and the lateness of his
filing. E.g., Spitsyn v. Moore, 345 F.3d
796, 799 (9th Cir. 2003). Accord Bryant v. Arizona
Attorney General, 499 F.3d 1056, 1061 (9th Cir. 2007).
Ninth Circuit has “adopted the ‘stop clock'
approach to analyzing claims for equitable tolling.
“[T]he statute-of-limitations clock stops running when
extraordinary circumstances first arise, but the clock
resumes running once the extraordinary circumstances have
ended or when the petitioner ceases to exercise reasonable
diligence, whichever occurs earlier.” Luna v.
Kernan, 784 F.3d 640, 651 (9th Cir. 2015) (citing
Gibbs v. Legrand, 767 F.3d 879, 891-92 (9th Cir.
asserts he is entitled to equitable tolling based on the
misconduct and/or abandonment by his trial/appellate counsel.
“Equitable tolling may be warranted in instances of
unprofessional attorney behavior; however, the AEDPA deadline
will not be tolled for a garden variety claim of excusable
attorney neglect or mistake.” Doe v. Busby,
661 F.3d 1001, 1011-12 (9th Cir. 2011) (citing
Spitsyn, 345 F.3d at 800-02); see also Irwin v.
Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990)
(“[T]he principles of equitable tolling described above
do not extend to what is at best a garden variety claim of
excusable neglect.”). The attorney misconduct must be
“a sufficiently egregious misdeed like
malfeasance or failing to fulfill a basic duty of client
representation” to warrant equitable tolling.
Doe, 661 F.3d at 1012 (citing Spitsyn, 345
F.3d at 801). “Failure to inform a client that his case
has been decided, particularly where that decision implicates
the client's ability to bring further proceedings
and the attorney has committed himself to informing
his client of such a development, constitutes attorney
abandonment” that warrants equitable tolling.
Gibbs, 767 F.3d at 886; see also Maples v.
Thomas, 565 U.S. 266, 283 (2012). Further, the complete
lack of a case file might, under some circumstances, justify
equitable tolling if “the hardship caused by lack of
access to his materials was an extraordinary circumstance
that caused” the untimely filing of his federal
petition. Waldron-Ramsey v. Pacholke, 556 F.3d 1008,
1013 (9th Cir. 2009); see also Lott v. Mueller, 304
F.3d 918, 924-25 (9th Cir. 2002).
the parties' arguments and the evidence submitted, the
court finds that the statute of limitations should be
equitably tolled through the filing of Kinder's pro
se petition based on Kuehn's abandonment.
his direct appeal was pending, on May 30, 2013, Kinder
alleged he received a letter from Kuehn stating that the
Nevada Supreme Court ordered a full briefing and the appeal
could take anywhere from two months to two years for
decision. (ECF No. 42-26 at 4.) Kinder received another
letter from Kuehn on January 13, 2014, informing him that
oral argument was scheduled and Kuehn would keep Kinder
informed of the status thereafter. (Id. at 4-5.)
This was Kuehn's last communication with Kinder.
(Id. at 5.) Kinder purportedly attempted to contact
Kuehn by telephone several times, but the calls were never
point thereafter, Kinder's family learned that attorney
Nathan Gent “took over” Kuehn's cases.
(Id.) Kinder represents that on April 23, 2015, he
spoke to Gent who confirmed that he took over for Kuehn. (ECF
No. 42-14 at 25.) Kinder inquired about the status of his
appeal. (Id.) Gent told him the appeal had concluded
but was not successful. (Id.) Gent declined to mail
Kinder a copy of the decision and instructed Kinder to obtain
the decision by other means. (Id.)
8, 2015, Kinder wrote to the Nevada Supreme Court asking when
his direct appeal was decided, and why he had not been
notified by the clerk of the court. (Id. at 23.) In
response, the Nevada Supreme Court sent Kinder a letter on
June 11, 2015, stating that a decision was reached in his
case, a remittitur had issued, and the time for filing a
rehearing petition had expired. (Id. at 24.)
Kinder's letter was ...