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The Ninth Circuit U.S. Court of Appeals on Friday allowed a Washington state inmate to file a late appeal because his lawyer failed to file anything at all. In accepting convicted murderer Sergey Spitsyn’s claim that his lawyer committed misconduct by sitting on his file, a unanimous three-judge panel held that a one-year statute of limitation for filing a federal habeas corpus petition can be extended since Spitsyn may not be at fault for his tardy appeal. “We have previously held that equitable tolling may be appropriate when a prisoner has been denied access to his legal files,” Judge Richard Clifton wrote. “That logic would apply to Spitsyn’s situation as well.” He was joined by Judge Ronald Gould and Senior Judge Arthur Alarcon. Vancouver, Wash., resident Spitsyn was convicted of the murder of Tamara Gritchenko, a 14-year-old girl. Spitsyn, then 16, admitted to having sex with the girl but initially denied involvement in her murder. After a lengthy police interrogation in which Spitsyn changed his story several times, he confessed. He later recanted the confession, but was convicted of second-degree murder and sentenced to more than 12 years in prison. The case captivated Vancouver, Wash.’s Russian community. Spitsyn’s mother Ludmilla picketed outside the trial to protest her son’s innocence. After his appeal was denied by the Washington Supreme Court, Ludmilla paid $2,000 to Kelso, Wash., solo Robert Huffhines Jr. to file a federal appeal. Huffhines, who did not return a phone call seeking comment, never did so. He was disciplined by the Washington State Bar Association, telling the bar he didn’t think Spitsyn’s appeal had legal merit. When Spitsyn could not retrieve his files in time to file a pro se appeal, he asked a lower court judge to extend the one-year deadline. The judge denied the request. Seattle attorney Rita Griffith, appointed as Spitsyn’s counsel by the Ninth Circuit, said the panel seemed bothered by the fact that her client did not have access to his own materials. “What Mr. Huffhines failed to do was return the file,” Griffith said. “It was clear that Mr. Spitsyn and his mother were making efforts to get the file.” Huffhines eventually returned both the file and the $2,000 fee. Contrary to Huffhines, however, Griffith sees merit in Spitsyn’s case. “I am of the opinion that Mr. Spitsyn is innocent,” said Griffith, who does not yet know whether she will represent Spitsyn on the merits of his habeas petition. “His confession didn’t meet the facts of the crime.” Huffhines was admonished by the Washington Bar in 2000 for a separate incident, and was reprimanded for his handling of the Spitsyn matter in 2002. The Ninth Circuit remanded the case to the district court to develop a better record on why Spitsyn didn’t file an appeal until Sept. 2001 after he finally received his file in April. The Washington attorney general’s office did not sound too upset about losing the case. The state had offered speculation that Spitsyn could have filed a timely appeal anyway, urging the panel that late appeals are allowed only in extraordinary circumstances. “The argument that was made was based on the law, and the decision was based on equity,” Assistant Attorney General Carol Murphy said.

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