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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.
 
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.
 
Smith’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.


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