Attorney negligence and death penalty habeas petitions

By Anna Christensen
on Feb 26, 2010 at 10:57 am

Below, Harvard Law School’s Kate Wevers previews Holland v. Florida, one of two cases to be heard by the Supreme Court on Monday, March 1.  Check the Holland v. Florida (09-5327) SCOTUSwiki page for additional updates.

Section 2244(d) of the Antiterrorism and Effective Death Penalty Act (AEDPA) requires state prisoners to file their federal habeas petitions within one year after their direct appeals become final.  On March 1, in No. 09-5327, Holland v. Florida, the Court will consider whether AEDPA’s limitation period can be equitably tolled when the petition is not timely filed because of the “gross negligence” of the prisoner’s lawyer.

In 1996, petitioner Albert Holland was convicted of murder and sentenced to death in a Florida state court.  His direct appeals were unsuccessful:  the Supreme Court denied certiorari, thereby triggering the start of Section 2244(d)’s one-year limitations period, on October 1, 2001.  Approximately one month later, Bradley Collins was appointed to represent Holland in his post-conviction proceedings.  Collins filed a motion for post-conviction relief in state court in September 2002, thereby tolling the limitations period and leaving Holland with approximately two weeks to file his federal habeas petition if his motion for state post-conviction relief was denied.  The Florida Supreme Court did deny relief, and issued its mandate affirming the denial on December 1, 2005 – at which point the limitations period continued to run.

Although Holland had repeatedly written to Collins asking about the state court proceedings and the AEDPA limitations period, and had instructed him to file his federal petition before the limitation period expired, Collins nonetheless failed to file a timely federal habeas petition and failed to even tell Holland that the Florida Supreme Court had released its decision affirming the denial of Holland’s motion.  In January 2006, after the one-year limitations period had expired, Holland eventually learned that the Florida Supreme Court had denied post-conviction relief.  One day later, he filed a pro se federal habeas petition.

The district court dismissed Holland’s federal habeas petition as untimely, holding that Holland was not entitled to equitable tolling because he had not been diligent in pursuing his rights.  On appeal, the Eleventh Circuit affirmed.  It assumed without deciding that Collins had been “grossly negligent,” but, in its view, “no allegation of lawyer negligence . . . can rise to the level of egregious attorney misconduct that would entitle [Holland] to equitable tolling” unless there are allegations of affirmative misrepresentations, bad faith, dishonesty, divided loyalty, or mental impairment on the part of the attorney.

The question presented is whether “gross negligence” by a prisoner’s lawyer can amount to exceptional circumstances warranting equitable tolling.  It is not, however, entirely clear whether the Court will also decide an antecedent question: whether equitable tolling is available under AEDPA at all.  The Supreme Court has twice assumed, without deciding, that § 2244(d) allows for equitable tolling (Pace v DiGuglielmo, 544 US 408 (2005); Lawrence v. Florida, 549 US 327 (2007)).  Florida challenges that assumption, and asks the Court to find that equitable tolling is never available; asserting that the antecedent question is “fairly considered” part of the question presented.  Clearly, the question presented could logically be answered in the negative on the basis that equitable tolling is never available.  But this logically prior issue was not raised by Florida in the lower courts, and furthermore is an issue on which there is no circuit split: the eleven circuit courts to have decided the question have held that equitable tolling is available (the question is open in the DC circuit).  One might therefore have expected the Court to indicate to the parties that it had this issue in mind, if indeed that was the case, when it granted certiorari.  Instead, the Court’s docket only records the questions presented as articulated by Holland, even though Florida’s brief in opposition restated the questions presented to include this antecedent issue, and the Court occasionally makes clear that it is granting certiorari on the questions as rephrased by the respondent.

Holland accepts that equitable tolling is not available for “garden variety” attorney negligence but argues it should be available where a litigant can show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.”  (Citing Pace v DiGuglielmo, 544 US 408 (2005)).  He argues that gross negligence by collateral counsel can qualify as extraordinary circumstances warranting equitable tolling.

In making this argument, Holland emphasizes that limitations periods are customarily subject to equitable tolling, and that habeas corpus is governed by equitable principles.  Holland criticizes the Eleventh Circuit for creating a rigid categorical rule that fails to ensure the specific circumstances of a case will receive meaningful, equitable consideration.  The Court’s decisions in Pace v DiGuglielmo, 544 US 408 (2005) and Lawrence v. Florida, 549 US 327 (2007) are cited as providing a “workable standard” for equitable tolling.

Florida advances a number of arguments in response.  First, as noted above, it claims that equitable tolling is never available under AEDPA, because the purpose and structure of AEDPA rebut the presumption in favor of equitable tolling.  Second, Florida claims that even if equitable tolling were consistent with AEDPA, § 2254(i) inferentially bars petitioners from relying on attorney error (§ 2254(i) precludes incompetence of post-conviction counsel from being a ground for habeas relief).  Finally, Florida argues that, even if some form of equitable tolling exists, it should be exceedingly rare and should not extend to circumstances within a litigant’s control, disagreements between attorney and client, or mistakes concerning the applicable law.  Florida is supported by an amicus brief filed on behalf of twenty two states addressed solely to the antecedent question: whether equitable tolling is precluded by AEDPA.  The states argue that allowing equitable tolling would defeat AEDPA’s objectives of limiting delay, expediting finality of state court judgments, and conserving state resources.

In reply, Holland counters that recognizing equitable tolling does not undermine the statutory objectives.  Rather, the one-year limitation period will speed up habeas while retaining discretion to equitably toll in extraordinary circumstances.  Holland notes that equitable tolling under AEDPA already exists nationwide, and he argues both that it has been “completely workable” and that its invocation has been “rare and limited”.  Holland criticizes Florida for failing to articulate what Holland should have done to be diligent, and he points out that Florida challenged Holland’s pro se motions as unauthorized because he was represented by counsel.

The amicus briefs filed by the ACLU and Eleven Legal Historians in support of Holland focus on the antecedent question, but conclude that neither the statutory language, nor the context, nor the purpose, preclude equitable tolling.  The ACLU argues that Congress can be presumed to be aware of the distinction courts draw between limitation periods (which typically allow for equitable tolling) and jurisdictional requirements (which typically do not), and that Congress, by choosing to create a limitation period rather than a jurisdictional requirement, has indicated an intent to allow for flexibility in exceptional cases.  The amicus brief filed by the Legal Ethics Professors and Practitioners argues that the conduct of Collins goes further than “gross negligence”, and suggests a number of tests the Court could use to identify exceptional circumstances of attorney behavior warranting equitable tolling.