Whether the Ninth Circuit properly applied 28 U.S.C. § 2254(d)(1) in holding that Nevada courts unreasonably applied clearly established Confrontation Clause precedent by excluding evidence offered to impeach witness credibility, and whether attorney misconduct constitutes an extraordinary circumstance for equitable tolling under 28 U.S.C. § 2254(a) when counsel fails to timely notify a client of state court decisions or sends incomplete filings to wrong addresses

No question identified. : under 29 U.S.C. § 1254(1). A copy of the Ninth Circuit’s opinion is attached as Exhibit A, and the order denying rehearing is attached as Exhibit B. 1. This case raises important questions of federal law involving (1) principles of equitable tolling, and (2) application of this Court’s jurisprudence on the Confrontation Clause in general and under the limited review imposed by 28 U.S.C. § 2254(d)(1). 2. First, the Ninth Circuit’s decision extended its own precedent addressing when attorney misconduct rises to the level of “abandonment” and establishes an extraordinary circumstance for equitable tolling—Gibbs v. Legrand, 767 F.3d 879 (9th Cir. 2014). But this extension strained the narrow reasoning of Gibbs to the point of failure, highlighting concerns Justice Alito voiced in his concurring opinion in Holland v. Florida, 560 U.S. 631, 654 (2010) (Alito, J. concurring), about the need to draw a firm line on when attorney errors are an “extraordinary circumstance.” And the Ninth Circuit’s extension of Gibbs creates a conflict with what the Third, Sixth, and Tenth Circuit have said on the issue. United States v. Arrowgarp, 558 Fed. Appx. 824, 825 (10th Cir. 2014) (quoting Trujillo v. Tapia, 359 Fed. Appx 952, 955 (10th Cir. 2010) (“Particularly egregious attorney misconduct may entitle a petitioner to equitable tolling, ‘but an attorney’s mere failure to inform a client of the date on which his appeal was denied falls well short of that threshold.” (emphasis in original)); Keeling v. Warden, 573 F.3d 452, 463 (6th Cir. 2012) (citing Elliott v. Dewitt, 10 Fed. Appx. 311, 312-13 (6th Cir. 2001)) (Similarly, this Court has declined to equitably toll the statute of limitations where a petitioner alleged that the state court and his attorney failed to inform him that a decision had been rendered affirming his conviction.”); LaCava v. Kyler, 398 F.3d 271, 276 (3d Cir. 2005) (“LaCava fares no better by implying that counsel was derelict in failing to timely notify him of the state court’s disposition.”). Agavo concedes that he filed his federal habeas petition late. But the district court and the Ninth Circuit accepted his argument that equitable tolling saves his petition based on “attorney abandonment” because (1) an alleged delay in his attorney informing him of the conclusion of his state habeas appeal, and (2) his attorney’s assistant mailed a partially prepared form federal habeas petition to the wrong address. Both points would fail to establish extraordinary circumstances for tolling in the Third, Sixth, and Tenth circuits. And at a minimum, the Ninth Circuit’s express reliance on counsel’s error in sending a partially completed form petition to the wrong address to support its decision on equitable tolling squarely conflicts with this Court’s decision in Lawrence v. Florida, 549 U.S. 327, 336-37 (2007), which held that attorney mistakes like miscalculating a deadline are not extraordinary circumstances that create a basis for equitable tolling. 3. Second, this case presents a question addressing this Court’s decisions applying the Confrontation Clause and what those cases clearly establish for purposes of applying 28 U.S.C. § 2254(d)(1). Here, the Ninth Circuit held that the Nevada courts unreasonably applied clearly established federal law applying the Confrontation Clause because the Nevada courts excluded evidence at trial that Agavo wanted to use to impeach the general credibility of the victim and her mother. Exhibit A. But the Nevada Supreme Court, citing relevant Nevada case law that cites and applies this Court’s confrontation cases, Kaczmarek v. State, 91 P.3d 16, 31 (2004), concluded that the trial court did not abuse its discretion in excluding the prior allegations. Citing Nevada’s equivalent to Fed. R. Evid. 403—Nev. Rev. Stat. 48.035(1)—the court noted that the prior allegations were never proven to be true or false, which would support concerns that “a large portion of the trial would