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Habeas Filing Deadline: Equitable Tolling, Generally – Attorney Incompetence

Holland v. Florida, USSC No. 09-5327, 6/14/10

Habeas – Filing Deadline – Equitable Tolling, Generally

The 1-year limitations period for filing an 18 U.S.C. §2254 habeas petition is subject to “equitable tolling”:

We have not decided whether AEDPA’s statutory limitations period may be tolled for equitable reasons. … Now, like all 11 Courts of Appeals that have considered the question, we hold that §2244(d) is subject to equitable tolling in appropriate cases. …

We base our conclusion on the following considerations. First, the AEDPA “statute of limitations defense . . . is not ‘jurisdictional.’” …

We have previously made clear that a nonjurisdictional federal statute of limitations is normally subject to a “rebuttable presumption” in favor “of equitable tolling.” …

… When Congress codified new rules governing this previously judicially managed area of law, it did so without losing sight of the fact that the “writ of habeas corpus plays a vital role in protecting constitutional rights.” Slack, 529 U. S., at 483. It did not seek to end every possible delay at all costs. Cf. id., at 483–488. The importance of the Great Writ, the only writ explicitly protected by the Constitution, Art. I, §9, cl. 2, along with congressional efforts to harmonize the new statute with prior law, counsels hesitancy before interpreting AEDPA’s statutory silence as indicating a congressional intent to close courthouse doors that a strong equitable claim would ordinarily keep open.

As the Court notes, all lower courts, including the 7th, acknowledged the existence of equitable tolling. In theory, anyway. For its part, the 7th had a particularly stinting view of the principle, repeatedly observing, “We rarely deem equitable tolling appropriate—in fact, we have yet to identify a circumstance that justifies equitable tolling in the collateral relief context,” Modrowski v. Mote, 322 F.3d 965 (7th Cir. 2003); “Equitable tolling is rarely granted. … Indeed, we have yet to identify a petitioner whose circumstances warrant it.” Tucker v. Kingston, 08-1405, 8/15/08. That’s about to change, at least to some extent. Read on.

Equitable Tolling – Attorney Incompetence

Appointed counsel’s failure to file a timely 2254 petition, occasioned by failure to do the necessary research to find out the proper filing date and despite the client’s many exhortations, supported equitable tolling of the lapsed 2254 filing deadline:

We have previously made clear that a “petitioner” is“entitled to equitable tolling” only 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. Pace, 544 U. S., at 418 (emphasis deleted). In this case, the “extraordinary circumstances” at issue involve an attorney’s failure to satisfy professional standards of care. The Court of Appeals held that, where that is so, even attorney conduct that is “grossly negligent”can never warrant tolling absent “bad faith, dishonesty,divided loyalty, mental impairment or so forth on the lawyer’s part.” 539 F. 3d, at 1339. But in our view, the Court of Appeals’ standard is too rigid.

We have previously held that “a garden variety claim of excusable neglect,” Irwin, 498 U. S., at 96, such as a simple “miscalculation” that leads a lawyer to miss a filing deadline, Lawrence, supra, at 336, does not warrant equitable tolling. But the case before us does not involve, and we are not considering, a “garden variety claim” of attorney negligence. Rather, the facts of this case present far more serious instances of attorney misconduct. And, as we have said, although the circumstances of a case must be “extraordinary” before equitable tolling can be applied, we hold that such circumstances are not limited to those that satisfy the test that the Court of Appeals used in this case.

The Court goes on to stress that mere lack of awareness of the correct deadline would be “simple negligence”; not enough for equitable tolling. But, counsel’s failure to adequately research the due date, coupled with his utter lack of communication with his client, places his negligence in the realm of the “extraordinary.” Apparently, the ethical breach — client abandonment — makes the difference:

A group of teachers of legal ethics tells us that these various failures violated fundamental canons of professional responsibility, which require attorneys to perform reasonably competent legal work, to communicate with their clients, to implement clients’ reasonable requests, to keep their clients informed of key developments in their cases, and never to abandon a client. See Brief for Legal Ethics Professors et al. as Amici Curiae (describing ethical rules set forth in case law, the Restatements of Agency, the Restatement (Third) of the Law Governing Lawyers(1998), and in the ABA Model Rules of Professional Conduct (2009)). And in this case, the failures seriously prejudiced a client who thereby lost what was likely his single opportunity for federal habeas review of the lawfulness of his imprisonment and of his death sentence.

Upshot: this misconduct might support equitable tolling, but that’s something that must first be ruled on below. The error was in saying that the misconduct couldn’t, as a matter of law, get Holland over the deadline hump. As to the nature of the error: the Alito concurrence usefully explains that missing a deadline is necessarily negligent and “that gross negligence is ordinary negligence with a vituperative epithet added.” Not enough, in other words, to say that the attorney conduct amounts to gross negligence. Rather, says Alito, counsel’s lack of communication with his client amounted to abandonment, such that counsel’s acts could no longer be constructively attributed to his client. Remains to be seen, then, whether a significant ethical breach may support equitable tolling, or whether the breach must be such as to sever the principal-agency relationship. Regardless, the result works a change in 7th Circuit caselaw which held, as Modrowski put it, that “attorney misconduct, whether labeled negligent, grossly negligent, or willful, is attributable to the client.”

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