Federal Habeas Filing Deadline & Equitable Tolling

It is suspected that if a reader searches for and finds this article, he or she already has some idea what tolling is and / or how it can help one who has otherwise failed to file a petition for a writ of habeas corpus by the deadline.  

What exactly is equitable tolling?  It is, simply put, “stopping the clock” on a deadline due to some unfair condition.  Put another way, the federal habeas timeline may be extended in the interests of justice if the person pursued their case diligently, but extraordinary circumstances beyond the person’s control made it impossible to file the federal habeas petition on time. Holland v. Florida (2010) 560 U.S. 631, 633, 130 S. Ct. 2549; 177 L. Ed. 2d 130; Nedds v. Calderon (9th Cir. 2012) 678 F. 3d 777, 780; Spitsyn v. Moore (9th Cir. 2003) 345 F. 3d 796, 799.

A person’s mental impairment may justify equitable tolling, depending on how severe the impairment is and the degree to which it affects the person’s ability to meet the timeline. Bills v. Clark (9th Cir. 2010) 628 F. 3d 1092, 1100 (tolling where person had low IQ and low literacy so severe he was unable to understand timeliness requirement); Roberts v. Marshall (9th Cir. 2010) 627 F. 3d 768, 772 (no tolling even though person was taking psychotropic medications, where no indication they were unable to function well enough to file timely petition); Espinoza-Matthews v. California (9th Cir. 2005) 432 F. 3d 1021, 1024 (petitioner’s mental health were important factors in considering tolling); Laws v. LaMarque (9th Cir. 2003) 351 F. 3d 919 (person in state prison was entitled to further factual development of or an evidentiary hearing on the issue of whether his mental illness prevented him from timely filing petition for writ of habeas corpus); Forbess v. Franke (9th Cir. 2014) 749 F. 3d 837, 840 (severe mental delusions that prevented petitioner from understanding filing rules justified tolling); Yow Ming Yeh v. Martel (9th Cir. 2014) 751 F. 3d 1075, 1078 (mental illness not severe enough to merit tolling).

The petitioner must show diligence in pursuing the petition to the extent they are able to do so, and that the mental impairment made it impossible to meet the filing deadline under the totality of the circumstances, including consideration of any reasonably available types of assistance. Stancle v. Clay (9th Cir. 2012) 692 F. 3d 948, 958; see Orthel v. Yates (9th Cir. 2015) 795 F. 3d 935 (denying tolling).

Lack of access to the case file or to adequate legal materials can be grounds for equitable tolling.  A petitioner who is seeking equitable tolling on this ground should explain why the circumstances prevented filing a timely petition and what diligent steps were taken to file a petition as soon as possible. Chaffer v. Prosper (9th Cir. 2010) 592 F. 3d 1046, 1049 (no tolling where delay was due to person’s reliance on “jailhouse lawyers” who were busy or transferred); Waldron-Ramsey v. Pacholke (9th Cir 2009) 556 F. 3d 1008, 1011 (denial of tolling where person did not act diligently); Bryant v. Schriro (9th Cir. 2007) 499 F. 3d 1056, 1060 (petitioner failed to show how lack of access to case law caused delay and failed to show due diligence); Roy v. Lampert (9th Cir. 2006) 465 F. 3d 964, 969 (hearing proper where sufficient allegations that claims were diligently pursued and extraordinary circumstance existed); Mendoza v. Carey (9th Cir. 2006) 449 F. 3d 1065, 1069 (lack of Spanish-language materials may merit equitable tolling); Yow Ming Yeh, supra, 1078 (limited English proficiency did not merit equitable tolling); Whalem/Hunt v. Early (9th Cir. 2000) 233 F. 3d 1146, 1148 (remanding to determine whether there were impediments that merited equitable tolling); Stillman v. LaMarque (9th Cir. 2003) 319 F. 3d 1199, 1201 (petitioner entitled to tolling because of officials’ misconduct in breaking promise to obtain signature in time for filing); Lott v. Mueller (9th Cir. 2002) 304 F. 3d 918, 922 (deadline may be tolled during period in which petitioner lacked access to legal files); Grant v. Swarthout (9th Cir. 2017) 862 F. 3d 914, 923-926 (petitioner entitled to tolling where he acted diligently while waiting for prison staff to furnish certificate required to file in forma pauperis petition).  

However, ordinary prison limits on access to a law library and copying facilities due to placement in segregation will not result in tolling. Ramirez v. Yates (9th Cir. 2009) 571 F. 3d 993, 998.

A person’s lack of knowledge that the state courts had decided the case may be grounds for equitable tolling if they acted diligently after learning about the decision. Ramirez v. Yates (9th Cir. 2009) 571 F. 3d 993, 998; Gibbs v. Legrand (9th Cir. 2014) 767 F. 3d 879, 886 (attorney's failure to notify petitioner that state supreme court denied appeal was abandonment and excused petitioner's failure to file within statutory deadline).

Equitable tolling, however, is not justified where an attorney negligently gives wrong advice to a person about the federal habeas deadline. Frye v. Hickman (9th Cir. 2001) 273 F. 3d 1144, 1146.  Nonetheless, equitable tolling may be appropriate if an attorney commits egregious professional misconduct or abandons the person in prison and the person was diligent in attempting to pursue the case.  This might occur when an attorney is hired or promises to represent the person, but fails to timely file necessary documents, especially if the attorney disregards the client’s requests for information or for return of the case file. Brooks v. Yates (9th Cir. 2016) 818 F. 3d 532, 534; Luna v. Kernan (9th Cir. 2015) 784 F. 3d 640; Rudin v. Myles (9th Cir. 2014) 781 F. 3d 1043; Doe v. Busby (9th Cir. 2011) 661 F. 3d 1001, 1011; Porter v. Ollison (9th Cir. 2010) 620 F. 3d 952, 960; Spitsyn v. Moore (9th Cir. 2003) 345 F. 3d 796, 801; see also United States v. Battles (9th Cir. 2004) 362 F. 3d 1195, 1197.

Equitable tolling may also be granted when a person relies on a court’s incorrect advice or erroneous ruling about procedures or timelines. Fue v. Biter (9th Cir. 2016) 842 F. 3d 650 (tolling granted where court clerk provided misleading information on status of state court habeas petition); McMonagle v. Meyer (9th Cir 2015) 802 F. 3d 1093, 1099-1100 (tolling granted where court overruled prior decision regarding exhaustion of remedies in misdemeanor cases); Sossa v. Diaz (9th Cir. 2013) 729 F. 3d 1225, 1230 (tolling granted after person reasonably relied on district court’s orders setting filing dates for an amended petition); Nedds v. Calderon (9th Cir. 2012) 678 F. 3d 777, 782 (equitable tolling may apply where petitioner relies on precedent that is later overturned); Harris v. Carter (9th Cir. 2008) 515 F. 3d 1051, 1054 (people entitled to tolling where they relied on then-effective interpretation of the timeline, which was later overruled); Townsend v. Knowles (9th Cir. 2009) 562 F. 3d 1200, 1205 (same).  

However, there was no tolling where a person neither showed that he relied on the Ninth Circuit’s prior incorrect interpretation of the law, nor showed good cause for a further delay in filing after the U.S. Supreme Court overruled the Ninth Circuit. Lakey v. Hickman (9th Cir. 2011) 633 F. 3d 782, 787. 

Lastly, it is important to understand and distinguish that equitable tolling is not justified if the court does not affirmatively mislead the petitioner. Ford v. Pliler (9th Cir. 2009) 590 F. 3d 782, 786 (person not entitled to tolling where federal court did not affirmatively misadvise him, even though court failed to warn that the deadline had expired and that voluntarily dismissing the petition would bar them from pursuing the claims); Brambles v. Duncan (9th Cir. 2005) 412 F. 3d 1066, 1070 (person not entitled to tolling when court failed to inform him of all consequences of choosing to have a mixed petition dismissed, but did not affirmatively mislead the petitioner); Pliler v. Ford (2004) 542 U.S. 225, 231, 124 S. Ct. 2441; 159 L. Ed.2d 338] (court not required to warn petitioner that court would have no power to consider motion to stay petition unless he opted to amend it and dismiss unexhausted claims, and that petitioner's claims would be time-barred if he opted to dismiss the petitions without prejudice and return to state court to exhaust all of his claims).