Anthony Benjamin v. Brandon Kelly

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY BENJAMIN,
Petitioner-Appellant,
v.
BRANDON KELLY,
Respondent-Appellee.
No. 21-35260
D.C. No. 6:19-cv-00259-JE
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted February 10, 2022
Portland, Oregon
Before: PAEZ and NGUYEN, Circuit Judges, and EATON,** Judge.
Before us is the Certificate of Appealability issued by the United States
District Court for the District of Oregon pursuant to 28 U.S.C. § 2253(c)(2), and the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** Richard K. Eaton, Judge of the United States Court of International
Trade, sitting by designation.
FILED
APR 29 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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sole question of whether Petitioner-Appellant Anthony Benjamin1 is entitled to
equitable tolling of the statute of limitations with respect to two grounds for relief
raised in his second amended federal habeas petition (“Second Amended Petition”),
filed June 5, 2020.
We have jurisdiction under 28 U.S.C. § 1291 and § 2253, and review de novo
the district court’s decision to dismiss Grounds One and Three of Benjamin’s Second
Amended Petition as untimely.2 See Smith v. Davis, 953 F.3d 582, 587 (9th Cir.
2020) (en banc) (citation omitted). For the following reasons, we reverse and remand
for review on the merits.
A habeas petitioner is entitled to equitable tolling if he shows “‘(1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way’ and prevented timely filing” of his federal habeas petition. See
1 Benjamin is an inmate in the Oregon State Penitentiary who is seeking
federal habeas relief. His claim for relief is governed by a one-year statute of
limitations under the Antiterrorism and Effective Death Penalty Act of 1996. See 28
U.S.C. § 2244(d)(1).
2 Benjamin’s Second Amended Petition alleges three grounds for habeas
relief. Ground One alleges ineffective assistance of counsel. Ground Two alleges a
due process violation by the trial court. Ground Three alleges that, to the extent the
court finds the deprivations listed in Grounds One and Two, taken individually, do
not entitle Benjamin to relief, their cumulative effect warrants habeas relief. The
district court found that Ground Two was timely under the relation-back doctrine
and dismissed it on the merits.

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Holland v. Florida, 560 U.S. 631, 645, 649 (2010) (quoting Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005)).
1. “[T]he diligence required for equitable tolling purposes is ‘reasonable
diligence,’ not ‘maximum feasible diligence.’” Smith, 953 F.3d at 599 (quoting
Holland, 560 U.S. at 653). “In determining whether reasonable diligence was
exercised courts shall ‘consider the petitioner’s overall level of care and caution in
light of his or her particular circumstances.’” Id. (quoting Doe v. Busby, 661 F.3d
1001, 1013 (9th Cir. 2011)).
Benjamin acted with reasonable diligence. He frequently wrote his lawyer to
inquire about the status of his case and, on numerous occasions, sought his lawyer’s
advice as to whether the time for filing his federal habeas petition was running. Time
and time again, Benjamin’s lawyer assured him, albeit erroneously, that the statute
of limitations was tolled during the state post-conviction relief appeal. See Busby,
661 F.3d at 1014 (“Reasonable diligence does not require a petitioner to identify the
legal errors in his attorney’s advice and thereupon fire the attorney because such
errors would have been evident to a trained lawyer . . . .”).
Relying on his lawyer’s advice, Benjamin waited until his lawyer told him, on
January 3, 2019, that it was possible to file a federal habeas petition. Approximately
one month later, on February 12, 2019, he filed a pro se habeas petition.

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2. There is no per se rule governing whether an extraordinary
circumstance has prevented timely filing of a habeas petition—rather, the issue must
be decided on a case-by-case basis. See Smith, 953 F.3d at 590-91 (noting that the
second Holland element involves a “fact-specific inquiry”). It is a fixed requirement,
however, that the extraordinary circumstance be “the cause of a litigant’s untimely
filing, [or] there is nothing for equity to address.” Id. at 591 (emphasis added).
Where a lawyer repeatedly and specifically misleads a client about his rights
and obligations, that conduct can satisfy the Holland standard. See 560 U.S. at 651-
52 (distinguishing between “garden variety” negligence and more serious
misconduct where counsel failed to “communicate with the client, and to do basic
legal research,” or among other things, “made misleading statements” (citations
omitted)).
Here, Benjamin has shown that his lawyer’s actions qualify as an
extraordinary circumstance. Throughout his representation, Benjamin’s lawyer
continually misled him about when the statute of limitations was running on “what
was likely [Benjamin’s] single opportunity for federal habeas review,” thus
“seriously prejudic[ing]” him. Id. at 653. This amounts to more than “garden
variety” negligence, such as the mis-calendaring of a deadline, or similar errors of a
routine, clerical nature.

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Counsel’s incorrect legal advice was also the cause of Benjamin’s untimely
filing. That is, Benjamin would have taken timely action but for his lawyer’s
repeated misleading statements. See, e.g., Gibbs v. Legrand, 767 F.3d 879, 887 (9th
Cir. 2014) (“[Petitioner’s] ignorance of the limitations period was caused by
circumstances beyond the party’s control.” (citation omitted)).
Accordingly, Benjamin is entitled to equitable tolling from August 18, 2017
(the date the attorney-client relationship began) to January 3, 2019 (the date counsel
informed Benjamin that the statute of limitations began to run), and thus Grounds
One and Three of his Second Amended Petition were timely.3
REVERSED AND REMANDED.
3 The parties agree that the 178-day period between the filing of
Benjamin’s pro se habeas petition on February 12, 2019, and the filing of the state
court record on August 9, 2019, is tolled.

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