Attorney misconduct may entitle prisoner's "equitable tolling"

The U.S. Supreme Court yesterday "sympathized," as Law.com this morning put it, "with a Florida death row inmate whose lawyer had missed a deadline for his habeas appeal and failed to communicate with him for years despite numerous written pleas for help." [ Holland v. Florida, 09-5327 ]

Summarizing the case, ScotusBlog reported, "In 1996, petitioner Albert Holland was convicted of murder and sentenced to death in a Florida state court. His direct appeals were unsuccessful: the Supreme Court denied certiorari, thereby triggering the start of 28 USC §2244(d)’s one-year limitations period, on October 1, 2001. Approximately one month later, Bradley Collins was appointed to represent Holland in his post-conviction proceedings. Collins filed a motion for post-conviction relief in state court in September 2002, thereby tolling the limitations period and leaving Holland with approximately two weeks to file his federal habeas petition if his motion for state post-conviction relief was denied. The Florida Supreme Court denied relief, issuing its mandate affirming the denial on December 1, 2005 – at which point the limitations period continued to run.

"Although Holland had repeatedly written to Collins asking about the state court proceedings and the Antiterrorism & Effective Death Penalty Act (AEDPA) limitations period, and had instructed him to file his federal petition before the limitation period expired, Collins nonetheless failed to file a timely federal habeas petition and failed to even tell Holland that the Florida Supreme Court had released its decision affirming the denial of Holland’s motion. In January 2006, after the one-year limitations period had expired, Holland eventually learned that the Florida Supreme Court had denied post-conviction relief. One day later, he filed a pro se federal habeas petition.

"The district court dismissed Holland’s federal habeas petition as untimely, holding that Holland was not entitled to equitable tolling because he had not been diligent in pursuing his rights. On appeal, the Eleventh Circuit affirmed. It assumed without deciding that Collins had been “grossly negligent,” but, in its view, “no allegation of lawyer negligence . . . can rise to the level of egregious attorney misconduct that would entitle [Holland] to equitable tolling” unless there are allegations of affirmative misrepresentations, bad faith, dishonesty, divided loyalty, or mental impairment on the part of the attorney."

ScotusBlog's analysis continued by stating that "the question presented was whether 'gross negligence' on the part of a prisoner's lawyer can amount to exceptional circumstances warranting equitable tolling. It was not, however, clear whether the Court would also decide an antecedent question: whether equitable tolling is available under the AEDPA at all. The Supreme Court had twice assumed, without deciding, that § 2244(d) allows for equitable tolling (Pace v DiGuglielmo, 544 US 408 (2005); Lawrence v. Florida, 549 US 327 (2007)), but Florida challenged that assumption, and asked the Court to find that equitable tolling is never available; asserting that the antecedent question is ‘fairly considered’ part of the question presented.

Answering these questions, The Supreme Court, Monday in its syllabus, held "Section 2244(d), the AEDPA statute of limitations, is subject to equitable tolling in appropriate cases.

"Several considerations support the Court’s holding. First, because AEDPA’s “statute of limitations defense . . . is not 'jurisdictional,'" Day v. McDonough, 547 U. S. 198, 205, 213, it is subject to a 'rebuttable presumption' in favor “of equitable tolling, Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95–9…..

"Second, §2244(d) differs significantly from the statutes at issue in United States v. Brockamp, 519 U. S. 347, 350–352, and United States v. Beggerly, 524 U. S. 38, 49, in which the Court held that Irwin’s presumption had been overcome.

"Finally, the Court disagrees with respondent's argument that equitable tolling undermines AEDPA’s basic purpose of eliminating delays in the federal habeas review process, see, e.g., Day, supra, at 205–206. AEDPA seeks to do so without undermining basic habeas corpus principles and by harmonizing the statute with prior law, under which a petition’s timeliness was always determined under equitable principles. See, e.g., Slack v. McDaniel, 529 U. S. 473, 483…

"The Eleventh Circuit's per se standard is too rigid," the Court said. "A 'petitioner' is 'entitled to equitable tolling' 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 v. DiGuglielmo, 544 U. S. 408, 418. Such 'extraordinary circumstances' are not limited to those that satisfy the Eleventh Circuit’s test. Courts must often 'exercise [their] equity powers . . . on a case-by-case basis,' Baggett v. Bullitt, 377 U. S. 360, 375, demonstrating 'flexibility' and avoiding 'mechanical rules,' Holmberg v. Armbrecht, 327 U. S. 392, 396, in order to 'relieve hardships . . . aris[ing] from a hard and fast adherence' to more absolute legal rules, Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U. S. 238, 248.



Law.com’s article, however, also notes that "in dissent, Justice Antonin Scalia said the law 'leaves no room for equitable exceptions' to the one-year deadline. Scalia also said that, because a defendant has no right to counsel on appeal, 'the rule holding him responsible for his attorney's acts applies with full force.' Thus, even when the missed deadline was caused by a lawyer's error, 'the petitioner is out of luck,' Scalia said. Justice Clarence Thomas joined Scalia's dissent."