Reynaldo Agavo v. Calvin Johnson; Attorney General for the State of Nevada

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
REYNALDO AGAVO,
Petitioner-Appellee,
v.
CALVIN JOHNSON; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellants.
No. 21-16908
D.C. No.
2:13-cv-01741-JCM-DJA
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted November 17, 2022
San Francisco, California
Before: McKEOWN and PAEZ, Circuit Judges, and SESSIONS,** District Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
FILED
JAN 5 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Respondents Calvin Johnson and the Attorney General for the State of
Nevada (collectively “the State”) appeal the district court’s order conditionally
granting Reynaldo Agavo’s petition for a writ of habeas corpus. We have
jurisdiction under 28 U.S.C. § 1291, and affirm the district court’s decision for the
reasons set forth below.
1. Equitable Tolling. Agavo filed his federal habeas corpus petition less
than one month late. The district court applied equitable tolling on the basis of
attorney abandonment and allowed the petition to proceed. We review the
timeliness question de novo. Flemming v. Matteson, 26 F.4th 1136, 1138 (9th Cir.
2022). “Unless the facts are undisputed, we review the district court’s findings of
fact underlying a claim for equitable tolling for clear error.” Rudin v. Myles, 781
F.3d 1043, 1053 (9th Cir. 2015).
The habeas corpus limitations period is subject to equitable tolling if the
petitioner demonstrates “(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way and prevented timely
filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (internal citation omitted).
The record supports Agavo’s claim that he pursued his rights diligently. Whether
alone or through his family, Agavo worked vigilantly to communicate with defense
counsel through the course of collateral proceedings. Despite those efforts,
counsel failed to notify Agavo promptly when the state court issued a final

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decision on post-conviction review. Agavo’s counsel’s office also made a mailing
error, further delaying Agavo’s submission, which was only corrected on account
of Agavo’s family’s request. Upon receiving counsel’s belated notification, Agavo
moved swiftly to submit his federal habeas corpus petition.
Counsel’s failures amount to abandonment and thus, constitute an
extraordinary circumstance. See Gibbs v. Legrand, 767 F.3d 879, 885 (9th Cir.
2014). Although “garden variety claim[s] of excusable neglect” do not constitute
extraordinary circumstances, Holland, 560 U.S. at 651–52 (internal citation
omitted), “a client cannot be charged with the acts or omissions of an attorney who
has abandoned him,” Maples v. Thomas, 565 U.S. 266, 283 (2012). Here, counsel
was retained with the prospect of representing Agavo in both state and federal
collateral proceedings, yet failed to maintain contact with his client and keep him
properly informed. The “[f]ailure 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.” Gibbs, 767 F.3d at 886. We
therefore agree with the district court’s application of equitable tolling.1
1 The State also challenges the district court’s conclusion that Ground 7 of the
petition, alleging overpayment of a witness, was timely filed. Because the district
court subsequently dismissed Ground 7 as moot, we decline to address that issue.

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2. Habeas Corpus. The district court found a violation of Agavo’s rights
under the Confrontation Clause and conditionally granted his petition for habeas
corpus under 28 U.S.C. § 2254. We review a ruling on a habeas corpus petition de
novo, and any underlying factual findings for clear error. See Martinez v. Cate,
903 F.3d 982, 991 (9th Cir. 2018). “The district court’s application of [the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)] to the last
reasoned state court decision is a mixed question of law and fact which we review
de novo.” Mann v. Ryan, 828 F.3d 1143, 1151 (9th Cir. 2016).
Pursuant to the AEDPA, we may grant habeas relief on a claim adjudicated
on the merits in state court only if the state court decision “was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or if the decision “was
based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. §§ 2254(d)(1)–(2).
In barring any reference to the California allegations, the Nevada courts
unreasonably applied clearly established federal law. The United States Supreme
Court has long held that the Confrontation Clause prohibits a trial court from
completely barring cross-examination that a jury might reasonably find undermines
the credibility of a key witness. Delaware v. Van Arsdall, 475 U.S. 673, 679
(1986); see also Olden v. Kentucky, 488 U.S. 227, 232 (1988). Because the

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California allegations would have reasonably called into question the credibility of
both the child and her mother, Agavo had a right under the Confrontation Clause to
engage in reasonable cross-examination. Id.
The Supreme Court has acknowledged that if a trial court is concerned about
matters such as “harassment, prejudice, confusion of the issues, the witness’ safety,
or interrogation that is repetitive or only marginally relevant,” the court can
“impose reasonable limits.” Van Arsdall, 475 U.S. at 679. Here, the Nevada
Supreme Court speculated that the trial court may have had such concerns. The
Nevada Supreme Court did not address the possibility of reasonable limits on the
proposed testimony. Given that the trial court also failed to address such
considerations, we conclude that the absolute prohibition of cross-examination was
“beyond reason.” Olden, 488 U.S. at 232.
We further find that the Confrontation Clause violation was harmful. See
Fry v. Pliler, 551 U.S. 112, 121–22 (2007) (citing Brecht v. Abrahamson, 507 U.S.
619 (1993)); Van Arsdall, 475 U.S. at 684. The Nevada Supreme Court
acknowledged that “this was a very close case.” Agavo v. State, 281 P.3d 1148
(Nev. 2009); see Olden, 488 U.S. at 233 (finding harm where “the State’s case
against petitioner was far from overwhelming”). The prosecution asserted in its
closing argument that the case “boil[ed] down to” a credibility battle between the
child and Agavo. The State also portrayed the mother as believing her daughter’s

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allegations. The proposed cross-examination would undoubtedly have provided
the jury a different perspective on both witnesses. See Van Arsdall, 475 U.S. at
679. In sum, the outcome of this case depended largely on the credibility of the
primary witnesses, and defense counsel’s inability to use the California allegations
to potentially undermine that credibility had a “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht, 507 U.S. at 638.
AFFIRMED.

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