Robert Linzy Bellon v. DWIGHT NEVEN, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT LINZY BELLON,
Petitioner–Appellant,
v.
DWIGHT NEVEN, Warden, et al.,
Respondents–Appellees.
No. 17–17005
D.C. No.
2:12–cv–01639–GMN–GWF
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Submitted June 12, 2019**
San Francisco, California
Before: GOULD and IKUTA, Circuit Judges, and PEARSON,*** District Judge.
Petitioner Robert Linzy Bellon, a state prisoner, appeals the denial of his
motion for relief from judgment under Fed. R. Civ. P. 60(b). He contends that our
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36–3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Benita Y. Pearson, United States District Judge for the
Northern District of Ohio, sitting by designation.
FILED
JUN 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 5 --

2
decision in Rudin v. Myles, 781 F.3d 1043 (9th Cir. 2015), entitles him to habeas
corpus relief because his attorney abandoned him.
“Motions for relief from judgment under Rule 60(b) are reviewed for abuse
of discretion.” United States v. Asarco Inc., 430 F.3d 972, 978 (9th Cir. 2005). A
district court abuses its discretion if it fails to apply the correct law or rests its
decision upon a clearly erroneous finding of material fact. Lemoge v. United
States, 587 F.3d 1188, 1192 (9th Cir. 2009). Questions of law underlying the
district court’s decision are reviewed de novo. Jeff D. v. Kempthorne, 365 F.3d
844, 850–51 (9th Cir. 2004).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
establishes a one-year period of limitation within which a petitioner may seek
federal habeas relief. 28 U.S.C. § 2244(d)(1). AEDPA is subject to equitable
tolling. Holland v. Florida, 560 U.S. 631, 649 (2010). A petitioner is entitled to
equitable tolling if he can establish that (1) he was pursuing his rights diligently,
but (2) some extraordinary circumstance stood in his way and prevented timely
filing. Id. Ordinary attorney negligence is not an extraordinary circumstance
sufficient to justify equitable tolling. Id. at 651–52. On the other hand,
circumstances in which an attorney’s egregious misconduct constitutes attorney
abandonment may entitle a petitioner to equitable tolling. Rudin, 781 F.3d at 1055.
Bellon argues that the district court erred by denying his Rule 60(b) motion

-- 2 of 5 --

3
because our holding in Rudin effected an intervening change in law that entitled
him to equitable tolling, which would have cured the untimely filing of his federal
habeas petition. He claims that Rudin broadened the scope of attorney
abandonment to include instances in which an attorney fails to inform a client of
the client’s need to protect her interest pro se.
Rudin never makes such a holding. We held that Rudin was entitled to
equitable tolling because her attorney had abandoned her. Rudin, 781 F.3d at
1056. In so doing, we noted that Rudin’s attorney “failed to inform Rudin of the
reasons for his delay, providing her no clue of ‘any need to protect [herself] pro
se.’” Id. But this was only one of several factors we relied on in reaching our
conclusion. We also observed that, over nearly two years of representation,
Rudin’s attorney never filed a state petition, or anything of substance, and did
nothing more than attend status hearings and request continuances on Rudin’s
behalf. Id. at 1050–51. Several months into the period of representation, Rudin’s
attorney stopped visiting her in prison. Id. at 1056. He had a collect call block
placed on his office phone. Id. at 1050. Taking all of these circumstances
together, we concluded Rudin’s attorney had “no intention to actually represent his
client.” Id. at 1056.
Bellon’s attorney, however, did not abandon Bellon. Bellon’s attorney filed
Bellon’s petition one day late. He was under the mistaken belief that the petition

-- 3 of 5 --

4
was timely filed. Bellon’s attorney maintained this position through
correspondence to Bellon, from the time he filed the petition through the date of
the state supreme court’s finding that the petition was untimely filed. An
attorney’s mistaken legal position does not support a finding of attorney
abandonment. Compare Miranda v. Castro, 292 F.3d 1063, 1066–68 (9th Cir.
2002) (attorney’s erroneous advice regarding timeliness does not constitute
extraordinary circumstance necessary for equitable tolling), with Luna v. Kernan,
784 F.3d 640, 645 (9th Cir. 2015) (equitable tolling proper when counsel
repeatedly assured petitioner that his petition would soon be filed, then misled
petitioner for years into thinking the petition had been filed).
Bellon attempts to distinguish the miscalculation of a filing deadline with the
failure to research and know the law resulting in a miscalculation of a filing
deadline. He points to no authority supporting this distinction.1 Although the
failure to research an issue of timeliness may factor into a court’s finding of
attorney abandonment, it is not sufficient to make that showing. Cf. Baldayaque v.
United States, 338 F.3d 145, 152 (2d Cir. 2003) (equitable tolling arguably proper
1 Bellon relies solely on Holland v. Florida. Holland notes that there is a difference between a
“simple ‘miscalculation that leads a lawyer to miss a filing deadline’” and “far more serious
instances of attorney misconduct” that may justify equitable tolling. Id. at 651–52 (quoting
Lawrence v. Florida, 549 U.S. 327, 336 (2007)). The attorney in Holland, aside from
miscalculating the statute of limitations for federal habeas relief, cut off virtually all contact with
petitioner over the span of several years, during which petitioner’s AEDPA limitations period
expired. Id. at 636–42. The attorney also never filed a federal habeas petition, despite
petitioner’s numerous requests. Id. at 642. No such misconduct occurred here.

-- 4 of 5 --

5
when attorney “did no research on [the] case” and failed to communicate with his
client).
In Rudin, we also held that Rudin was entitled to equitable tolling for the
period of time between the state district court’s erroneous excuse of the petitioner’s
untimely petition and the state court’s subsequent reversal of that decision. Rudin,
781 F.3d at 1059. Given this holding, the district court correctly noted that Bellon
could arguably have been entitled to equitable tolling from the date of state trial
court’s erroneous order excusing Bellon’s untimeliness to the date of the later
reversal. But by that date, Bellon’s statute of limitations to file his federal habeas
petition had long run. See id. at 1056 n.16 (“[E]xtraordinary circumstances cannot
toll a statute of limitations that has already run.”).
We affirm the district court’s denial of Bellon’s Rule 60(b) motion.2
AFFIRMED.
2 Bellon’s motion to supplement the record on appeal is denied.

-- 5 of 5 --