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Equitable Tolling Denied for Filing Late Habeas Appeal.
As the reader of this article may be aware, after an individual has exhausted his state court remedies for habeas relief, he or she has one year to seek habeas relief in federal court. 28 U.S.C. § 2244(d)(1) (the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)). This time begins to run on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking review.” Id. § 2244(d)(1)(A).
This one-year “statute of limitations,” as it is called, can be tolled like other statute of limitations, for various reasons that can categorized as “equitable tolling.” Holland v. Florida (2010) 560 U.S. 631, 634.
About This Article Briefly: Federal court declines to find equitable tolling for filing a federal petition for writ of habeas corpus based on an “extraordinary circumstance” when defendant does not find out about the California Supreme Court denying his habeas petition for 66 days.
If someone is seeking to invoke “equitable tolling” to extend the one-year statute of limitations for filing a petition for writ of habeas corpus in federal court, that petitioner bears the burden of showing: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland, supra, at 649 (quoting Pace v. DiGuglielmo (2005) 544 U.S. 408, 418).
How this is applied obviously depends upon the circumstances of each case and the petitioner’s claims of pursuing his (or her) rights diligently and whether there really was an “extraordinary circumstance” that stood in petitioner’s way and prevented timely filing.
Is an attorney’s two-month delay in advising his client of the state court final ruling an extraordinary circumstance?
How does a court decide if someone has been pursuing his rights diligently? What is required?
These two issues were addressed in the recent published decision involving Anthony Bernard Smith, Jr., who was in prison under the custody of the California Department of Corrections and Rehabilitation for convictions for residential burglary, two counts of robbery and one count of forcible oral copulation.
CA Supreme Court San FranciscoSmith’s state court petition for writ of habeas corpus became final on June 12, 2014, or ninety days after the California Supreme Court issued a summary denial of his petition for review on March 12, 2014.
Smith’s request for the federal court to find equitable tolling stated that he did not find out about the California Supreme Court ruling officially until he received a letter from his attorney, so advising him, on August 15, 2014, or 66 days after the one-year statute of limitations had begun to expire.
Smith acknowledged that he first learned about the denial about three months earlier, on May 10, 2014 from his family. After he learned of this, he sent his attorney the next day, asking for an update and asking for his appellate record so that he could prepare a federal habeas petition.
When Smith did not receive an immediate response, he filed a complaint with the California State Bar in June 2014.
Smith’s attorney sent him the appellate record on August 15, 2014 with his letter.
Smith then appeared pro se and filed his federal habeas petition in the district court for the Eastern District of California on August 14, 2015, or one year after receiving the letter and record from his attorney. The U.S. Ninth Circuit Court of Appeals noted that the habeas petition asserted “nearly identical claims” to those he had made to the California Supreme Court.
The State of California moved to dismiss the petition as untimely, being more than one year after the state court ruling became final. Smith filed an opposition to this motion, arguing equitable tolling applied for the time period from June 10 to August 15, 2014. Smith argued that equitable tolling applied in a “stop clock” method because he had been abandoned by his attorney and did not have access to his appellate record and that he had been diligent in his attempts to remedy the situation.
The district court granted the motion to dismiss, noting that even though Smith did not receive the appellate record until two months after the statute had begun to run, he still had ten months thereafter in which to file his petition on time. The district court found that Smith’s own lack of diligence prevented his filing on time and not the attorney’s delay.
The Ninth Circuit Court of Appeals then heard Smith’s appeal of this ruling. It affirmed the district court, finding that Smith had not sufficiently explained what he did in the ten months to show that he acted diligently to enforce his rights.
We bring this summary to the reader’s attention because Mr. Smith seemed to only address the first requirement in equitable tolling (and did so quite weakly). We believe the district court was skeptical about Smith really being prejudiced when his family notified him of the California Supreme Court ruling and Smith did nothing else except wait for his attorney to respond to his letter. Smith knew he had to act, but apparently chose instead to wait for his attorney to tell him what he already knew. Moreover, what is perhaps more important, Smith did not explain what he did in the ten months remaining once he had the appellate record. Had Smith done that, the Ninth Circuit may have granted his appeal.
The State of California moved to dismiss the petition as untimely, being more than one year after the state court ruling became final. Smith filed an opposition to this motion, arguing equitable tolling applied for the time period from June 10 to August 15, 2014. Smith argued that equitable tolling applied in a “stop clock” method because he had been abandoned by his attorney and did not have access to his appellate record and that he had been diligent in his attempts to remedy the situation.
The district court granted the motion to dismiss, noting that even though Smith did not receive the appellate record until two months after the statute had begun to run, he still had ten months thereafter in which to file his petition on time. The district court found that Smith’s own lack of diligence prevented his filing on time and not the attorney’s delay.
The Ninth Circuit Court of Appeals then heard Smith’s appeal of this ruling. It affirmed the district court, finding that Smith had not sufficiently explained what he did in the ten months to show that he acted diligently to enforce his rights.
We bring this summary to the reader’s attention because Mr. Smith seemed to only address the first requirement in equitable tolling (and did so quite weakly). We believe the district court was skeptical about Smith really being prejudiced when his family notified him of the California Supreme Court ruling and Smith did nothing else except wait for his attorney to respond to his letter. Smith knew he had to act, but apparently chose instead to wait for his attorney to tell him what he already knew. Moreover, what is perhaps more important, Smith did not explain what he did in the ten months remaining once he had the appellate record. Had Smith done that, the Ninth Circuit may have granted his appeal.
The citation for the United States Court of Appeals for the Ninth Circuit ruling discussed above is Anthony Bernard Smith, Jr. v. Ron Davis (9th Cir., 2020) 953 F.3d 582.
For more information about federal habeas filing and a late-filed petition for writ of habeas corpus, please click on the following articles:
