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).

POST CON RELIEF " VEHICLES " HABEAS " FEDERAL HABEAS " STATUTE OF LIMITATIONS
Holland v. Florida, 559 U.S. ___ (June 14, 2010)(because the one-year AEDPA statute of limitations, 28 U.S.C. 2254, is not jurisdictional, it is subject to a rebuttable presumption in favor of equitable tolling. reinforced here by the fact that equitable principles have traditionally governed substantive habeas law, and the fact that Congress enacted AEDPA after Irwin and therefore was likely aware that courts, when interpreting AEDPAs timing provisions, would apply the presumption).

POST CON RELIEF " VEHICLES " HABEAS " FEDERAL HABEAS " STATUTE OF LIMITATIONS
Holland v. Florida, 559 U.S. ___ (June 14, 2010)(a federal habeas petitioner is entitled to equitable tolling of the one-year AEDPA statute of limitations if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance " to be determined under the courts equity powers on a case-by-case basis, stood in his or her way and prevented timely filing of the petition, demonstrating flexibility and avoiding mechanical rules, in order to relieve hardships arising from a hard and fast adherence to more absolute legal rules).

POST CON RELIEF " VEHICLES " HABEAS " FEDERAL HABEAS " STATUTE OF LIMITATIONS
Holland v. Florida, 559 U.S. ___ (June 14, 2010)(a federal habeas petitioner is entitled to equitable tolling of the one-year AEDPA statute of limitations if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance " to be determined under the courts equity powers on a case-by-case basis, stood in his or her way and prevented timely filing of the petition, demonstrating flexibility and avoiding mechanical rules, in order to relieve hardships arising from a hard and fast adherence to more absolute legal rules).

POST CON RELIEF " VEHICLES " HABEAS " FEDERAL HABEAS " STATUTE OF LIMITATIONS
Holland v. Florida, 559 U.S. ___ (June 14, 2010) (at least sometimes, an attorneys unprofessional conduct can be so egregious as to create an extraordinary circumstance warranting equitable tolling of the one-year AEDPA statute of limitations for filing a federal habeas corpus petition). http://www.supremecourt.gov/opinions/09pdf/09-5327.pdf

POST CON RELIEF " VEHICLES " HABEAS " FEDERAL HABEAS " STATUTE OF LIMITATIONS
Holland v. Florida, 130 S.Ct. 2549 (June 14, 2010)(because the one-year AEDPA statute of limitations, 28 U.S.C. 2254, is not jurisdictional, it is subject to a rebuttable presumption in favor of equitable tolling. reinforced here by the fact that equitable principles have traditionally governed substantive habeas law, and the fact that Congress enacted AEDPA after Irwin and therefore was likely aware that courts, when interpreting AEDPAs timing provisions, would apply the presumption).

POST CON RELIEF " VEHICLES " HABEAS " FEDERAL HABEAS " STATUTE OF LIMITATIONS
Holland v. Florida, 130 S.Ct. 2549 (June 14, 2010)(a federal habeas petitioner is entitled to equitable tolling of the one-year AEDPA statute of limitations if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance " to be determined under the courts equity powers on a case-by-case basis, stood in his or her way and prevented timely filing of the petition, demonstrating flexibility and avoiding mechanical rules, in order to relieve hardships arising from a hard and fast adherence to more absolute legal rules).

POST CON RELIEF " VEHICLES " HABEAS " FEDERAL HABEAS " STATUTE OF LIMITATIONS
Holland v. Florida, 130 S.Ct. 2549 (June 14, 2010) (at least sometimes, an attorneys unprofessional conduct can be so egregious as to create an extraordinary circumstance warranting equitable tolling of the one-year AEDPA statute of limitations for filing a federal habeas corpus petition). http://www.supremecourt.gov/opinions/09pdf/09-5327.pdf

Ninth Circuit

POST CON RELIEF " FEDERAL " HABEAS CORPUS " STATUTE OF LIMITATIONS " EQUITABLE TOLLING
United States v. Buckles, ___ F.3d ___, 2011 WL 2150992 (9th Cir. Jun. 2, 2011)(if clerks office gave prisoner's family erroneous advice regarding calculation of deadline for filing motion to vacate, set aside or correct sentence and if prisoner detrimentally relied on that advice, he could be entitled to equitable tolling of limitations period).

VEHICLES " FEDERAL " HABEAS " TOLLING
Lakey v. Hickman (9th Cir. Jan. 5, 2011) ___ F.3d ___, 2011 WL 13922 (affirming dismissal of petitioner's habeas petition where (1) statutory tolling was unavailable for the 267 days at issue here because petitioner's final state habeas petition was deemed untimely under California law, and (2) even giving petitioner the benefit of equitable tolling for the time period prior to the courts decision in Pace, his subsequent 141-day delay rendered his federal petition untimely by at least 128 days).

VEHICLES " FEDERAL " HABEAS " TOLLING
Lakey v. Hickman (9th Cir. Jan. 5, 2011) ___ F.3d ___, 2011 WL 13922 (affirming dismissal of petitioner's habeas petition where (1) statutory tolling was unavailable for the 267 days at issue here because petitioner's final state habeas petition was deemed untimely under California law, and (2) even giving petitioner the benefit of equitable tolling for the time period prior to the courts decision in Pace, his subsequent 141-day delay rendered his federal petition untimely by at least 128 days).