by Dale Chappell

The U.S. Court of Appeals held on March 25, 2020, that a prisoner’s mental impairment that prevented him from “monitoring” his habeas counsel’s actions, which led to the delayed filing of his state habeas petitions, may have been cause for equitable tolling with respect to the late filing of his federal habeas petition.

Thomas Milam is serving a life sentence in a California state prison. His family hired a lawyer, Stratton Barbee, to file a state habeas corpus petition in 2007. The petition was filed just months after Milam’s conviction became final in 2008, and it was denied two months later on the merits by the state trial court. But Barbee didn’t file an appeal until nearly eight months later, and when that was summarily denied, he filed an appeal with the California Supreme Court over three months later. [Writer’s note: California has a unique habeas system, where an “appeal” is taken by simply filing another habeas petition in the next highest court, and there is no time limit as long as it’s filed within a “reasonable time.” Valdez v. Montgomery, 918 F.3d 687 (9th Cir. 2019).]

Milam’s family then hired a new lawyer, Al Amer, to file his federal petition. However, Barbee’s many delays resulted in Milam’s subsequent federal petition under 28 U.S.C. § 2254 being filed too late, because the one-year clock to file a federal petition is tolled when the state proceedings are “properly filed” and diligently pursued. 28 U.S.C. § 2244(d)(2). Amer never responded to the State’s argument that the petition was too late, even after being warned by the judge to do so. Judge John Kronstadt of the U.S. District Court for the Central District of California agreed with Magistrate Judge Michael Wilmer that Milam’s federal petition was filed too late and dismissed it. This was in May 2012. No appeal was filed by Amer.

At this point, it may be helpful to explain how Milam’s § 2244 petition made its way to the Ninth Circuit years after it was already denied.

Reopening Milam’s Federal Petition

Milam filed another § 2254 petition in the district court in October 2014. This time, acting pro se, he raised the issue of his mental health issues and included documents to support his claim. While the district court determined that Milam’s petition was an unauthorized “Second or successive” petition (he was required to obtain authorization from the Ninth Circuit to file another petition as per 28 U.S.C. § 2244), the court found a “potential basis for equitable tolling” based on his mental capacity and appointed the federal public defender (“FPD”) to represent him. The court also hinted that Milam may be able to file a motion under Federal Rule of Civil Procedure 60(b) to reopen his dismissed original § 2254 petition because of federalcounsel’s “ineptitude.”

The FPD followed the court’s suggestion and filed a Rule 60 motion four years after the original petition was dismissed in 2012. The State argued that Milam’s motion was filed too late. Under Rule 60(b)(6), there is no time limit, but a motion must be filed within a “reasonable time.” The State argued that Milam wasn’t diligent in seeking Rule 60 relief, and the delay was unreasonable. But it did acknowledge that the conduct of Milam’s federal lawyer, Amer, could constitute “gross negligence.”

The district court explained that while Rule 60 relief “occurs rarely in the habeas context,” gross negligence by a habeas attorney that amounts to “abandonment” is an “extraordinary circumstance” justifying the grant of a Rule 60 motion to reopen a federal habeas case. The court found that Milam’s federal lawyer, who was later disbarred, effectively abandoned Milam when he had a “viable claim for equitable tolling for various periods of time before the commencement of the federal case” that could have been raised as a reason to excuse his late federal petition. The court reopened Milam’s dismissed § 2254 petition. Milam v. Harrington, 2018 U.S. Dist. LEXIS 30797 (C.D. Cal. 2018).

Second Round of Milam’s
§ 2254 Petition

Back before the same court that granted Milam’s Rule 60 motion to reopen his § 2254 petition dismissed as untimely, the FPD submitted an expert’s opinion that Milam’s “mental impairment combined with the ineffective assistance of his state habeas counsel made it impossible to meet the filing deadline for his federal petition. It was the first time any argument or evidence was offered in federal court that Milam’s mental condition might excuse his late filing. The expert opined that “even with the assistance of others, Milam does not process the capacity to understand what is required of him” to ensure his petition was timely filed.

The district court, however, ruled that Milam’s mental capacity was “irrelevant to the equitable tolling because Petitioner was represented by an attorney during his incarceration.” The court adopted a categorical rule that having a lawyer meant Milam’s mental state could not be considered as to whether his petition was filed on time. The court then dismissed Milam’s petition as untimely (again) but granted a certificate of appealability. Milam v. Harrington, 2019 U.S. Dist. LEXIS 13450 (C.D. Cal. Jan. 4, 2019).

The Appeal

Equitable tolling applies to excuse a late habeas only when the petitioner shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing,” the Ninth Circuit explained, citing the U.S. Supreme Court’s position on equitable tolling. But equitable tolling is done on a “case-by-case” basis, which is ill-fitting for categorical rules, the Court instructed.

A lawyer’s errors are normally not enough by themselves to invoke equitable tolling, but they are a “part of the overall assessment” of equitable tolling. Bills v. Clark, 628 F.3d 1092 (9th Cir. 2010). “A petitioner’s mental impairment might justify equitable tolling if it interferes with the ability to cooperate with or monitor assistance the petitioner does secure” with the help of a lawyer, the Court reiterated under Ninth Circuit case law. “If Milam’s impairment prevented the monitoring of his state habeas lawyer, and if monitoring would have prevented state habeas counsel from waiting so long between filings, Milam’s impairment could have been a but-for cause of the untimely filing,” Judge Andrew Hurwitz wrote for the majority opinion, citing other circuits that have reached the same conclusion.

The Court also noted that the district court had assumed incorrectly that attorney abandonment was required to find Barbee’s delayed filings in the state habeas appeals affected the timely filing of Milam’s federal petition, and it never considered whether Barbee, while not technically abandoning him, still caused the late filing of the federal petition. The Court explained that equitable tolling can be “based on a range of attorney misconduct not limited to abandonment,” quoting Luna v. Kernan, 784 F.3d 640 (9th 2015).

Accordingly, the Court reversed the dismissal and remanded to (1) establish whether Milam’s mental impairment affected his “monitoring” of the state and federal proceedings to assist counsel and ensure timely filings and (2) establish whether state habeas counsel contributed to the untimely federal petition. See: Milam v. Harrington, 953 F.3d 1128 (9th Cir. 2020). 

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