Habeas – Filing Deadline – Tolling
The District Court had authority to grant Socha’s pre-filing, pre-deadline request to extend the 28 U.S.C. § 2244(d) deadline for his habeas petition, made on the ground of equitable tolling.
… First, there is no absolute bar imposed by Article III on judicial actions closely connected with a case or controversy that has not yet been filed. Perhaps the best- known example of a court’s taking action with respect to a case that has yet to be filed comes in Federal Rule of Civil Procedure 27, which permits depositions to perpetuate testimony. …
Second, it is possible to view a motion like Socha’s as the actual petition for a writ of habeas corpus, filed in an incomplete form but with a promise to furnish supporting documentation later. See, e.g., Smith v. Barry, 502 U.S. 244, 248-49 (1992) (treating appellate brief as notice of appeal); Listenbee v. City of Milwaukee, 976 F.2d 348, 350-51 (7th Cir. 1992) (treating motion for extension of time as notice of appeal). No one disputes the fact that his petition would have been timely if July 15, 2008, was the date on which it was effectively filed.
… Thus, Socha’s ancillary proceeding satisfied the traditional standing requirements of injury-in-fact, causation, and redressibility. Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11-12 (2004).
Socha filed his request one day before the deadline would have run. He argued that because he was in segregation the prison severely limited his law library access, and he argued that the deadline should therefore be extended on the basis of equitable tolling. A district judge agreed, and ordered that the deadline be extended. Socha filed his petition within the extended deadline, but the judge then assigned to the case ruled that the first judge had no authority to order the extension, and the petition was accordingly dismissed as outside the limitation period. The 7th Circuit, as the block quote indicates, holds to the contrary. The remedy isn’t to reinstate the petition outright but, rather, to remand for a closer look. One possibility is that, as suggested above, Socha’s pre-deadline request itself be taken as a timely habeas petition; this is for the district court to determine on remand (the 7th Circuit doesn’t say why it can’t make this call, or what factors should inform the issue on remand). Another possibility is that the extension was justified on the basis of equitable tolling (or estoppel):
… Socha informed the court on several occasions that he was trying, or had tried, to file on time, but he was hindered by the adverse party (the warden). Even before the Supreme Court’s decision in Holland, we had not closed the door on the possible applicability of doctrines such as equitable tolling and equitable estoppel. See, e.g., Tucker v. Kingston, 538 F.3d 732, 734 (7th Cir. 2008). In Holland, the Court confirmed that equitable tolling is available for cases governed by § 2244(d)’s filing periods. 130 S. Ct. at 2562 (explaining that a habeas corpus 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”) (internal quotation marks and citations omitted). We see no reason why, in an appropriate case, equitable estoppel would not also be available.
The court stresses that Socha did file his petition before undertaking the appeal. (“We thus have no need to decide whether we might have entertained an appeal had Socha filed one before he presented his petition to the district court, and we are free to reach the difficult characterization question that this case presents.”) Otherwise, had the appeal merely been before the court on a pre-petition extension ruling, the procedural situation would be much different. The court strongly suggests, albeit without distinctly holding, that in that situation it would follow United States v. Leo, 203 F.3d 162, 164 (2d Cir. 2000) (“Here, because Leon has not yet filed an actual § 2255 petition, there is no case or controversy to be heard, and any opinion we were to render on the timeliness issue would be merely advisory. Accordingly, we lack jurisdiction to consider the issue on appeal.”).