Tooby's California Post-Conviction Relief for Immigrants

 

Section 2244(d) is a statute of limitations, not a jurisdictional bar, so the civil doctrine of equitable tolling can apply to excuse an untimely filing.  This is a rare exception. 

 

To qualify for equitable tolling, the petitioner must show diligence and extraordinary circumstances that are out of the petitioner’s control, which fully prevented him or her from filing a timely action.[185]  Equitable relief will be denied where the extraordinary circumstances were not the proximate cause of the untimely filing -- where they did not exist for the entire one-year period or did not actually prevent the petitioner from filing a timely petition.[186]

 

            The Ninth Circuit has held that, with the possible exception of capital cases, counsel’s failure to file a timely petition, no matter how negligent, is not sufficiently extraordinary to warrant the relief of equitable tolling.[187]  The same holds true for claims of ignorance of the filing deadline, lack of access to legal materials, illiteracy or the inability to speak English, and erroneous advice of appointed appellate counsel.  

 

            In Miranda v. Castro,[188] appellate counsel informed the defendant that he must file any federal habeas petition within one year of the finality of his conviction, but in communicating that date, committed a typographical error adding an entire year.  Although this was a clear error by counsel, the Ninth Circuit adheres to a strict rule that a miscalculation of the AEDPA deadlines by counsel will not be sufficient cause to justify equitable tolling, even where committed by appellate counsel, who owes a constitutional duty of effective representation.[189]

 

Examples of circumstances that do qualify for equitable tolling include:

 

· Prison officials delaying and refusing to file a petition as directed by the prisoner.[190]

 

· Counsel withdrawing from representation and leaving unusable work product in a death penalty case.[191]

 

· Actions by the court that prevented timely filing.[192]

 

· Mental incompetency of the accused.[193] 

[185] Calderon v. U.S. Dist. Court (Beeler), 128 F.3d 1283, 1288-89 (9th Cir. 1997), rev’d on other grounds, 163 F.3d 530 (9th Cir. 1998).

[186] See Allen v. Lewis, 255 F.3d 798 (9th Cir. 2001) (transfer of prison inmate, while out of his control, did not prevent him from filing timely petition in months that followed transfer).

[187] See Frye v. Hickman, 273 F.3d 1144 (9th Cir. 2001) as amended; Bunney v. Mitchell, 241 F.3d 1151, 1156 (9th Cir. 2001).

[188] Miranda v. Castro, 292 F.3d 1063 (9th Cir. 2002).

[189] See also Frye v. Hickman, 273 F.3d 1144 (9th Cir. 2001).

[190] Bunney v. Mitchell, 241 F.3d 1151, 1156 (9th Cir. 2001); Miles v. Prunty, 187 F.3d 1104 (9th Cir. 1999).

[191] Calderon v. U.S. Dist. Court (Beeler), 128 F.3d 1283, 1289 (9th Cir. 1997).

[192] Tillema v. Long, 253 F.3d 494, (9th Cir. 2001)(erroneous dismissal of “mixed” federal habeas corpus petition without affording petitioner the opportunity to amend); Calderon v. U.S. Dist. Court (Kelly), 163 F.3d 530, 541-42 (9th Cir. 1998) (en banc) (stay issued by district court).

[193] Calderon v. U.S. Dist. Court (Kelly), 163 F.3d 530, 541-42 (9th Cir. 1998) (en banc).