Section 2244(d) is a statute of limitations, not a jurisdictional bar,  Therefore, 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 out of the petitioner’s control, which fully prevented him or her from filing a timely action.[106]  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.[107]

 

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.[108]  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.

 

Examples of circumstances qualifying for equitable tolling include:

 

·    Prison officials delaying and refusing to file a petition as directed by the prisoner.[109]

 

·    Counsel withdrawing from representation and leaving unusable work product in a death penalty case.[110]

 

·    Actions by the court that prevented timely filing.[111]

 

·    Mental incompetency of the accused.[112]

[106] 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).

[107] 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).

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

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

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

[111] 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).

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

POST-CON - FEDERAL - HABEAS CORPUS - TOLLING
Waldron-Ramsey v. Pacholke, No. 07-35938 ("Neither Waldron-Ramsey's alleged confusion regarding the basis of the state court rulings, nor his alleged confusion regarding AEDPA justify his 340-day delay. In a motion filed April 18, 1997, Waldron-Ramsey explicitly stated he knew his AEDPA deadline was April 23, 1997.FN3 His alleged belief he was entitled to statutory tolling beyond that date was based on his own assumptions, and a diligent petitioner in that situation would have filed a basic form habeas petition as soon as possible. Waldron-Ramsey's strategy to wait 340 days to file, in the hopes that any ambiguities would ultimately be resolved in his favor, is the kind of oversight, miscalculation or negligence for which equitable tolling is not appropriate.").

First Circuit

POST CON RELIEF - STATUTE OF LIMITATIONS
Neverson v. Farquharson, 366 F.3d 32 (1st Cir. May 4, 2004) (28 U.S.C. 2244(d)(1) statute of limitations is not jurisdictional, and therefore can be subject to equitable tolling).
http://laws.lp.findlaw.com/1st/031385.html

Ninth Circuit

POST CON RELIEF " FEDERAL " STATUTE OF LIMITATIONS " EQUITABLE TOLLING " INEFFECTIVE ASSISTANCE OF COUNSEL
Luna v. Kernan, ___ F.3d ___, 2015 WL 1903794 (9th Cir. Apr. 28, 2015) (counsel's professional misconduct was extraordinary circumstance that prevented petitioner from timely filing petition, as required for equitable tolling; case remanded to district court to address whether petitioner had diligently pursued his rights).

POST CON RELIEF " FEDERAL " VEHICLES " HABEAS CORPUS " EQUITABLE TOLLING
Butler v. Long, ___ F.3d ___, 2014 WL 1717009 (9th Cir. May 2, 2014) (reversing dismissal of habeas corpus petition, since the trial court dismissed a previous petition containing both exhausted and unexhausted claims, without providing petitioner an opportunity to amend, he was entitled to equitable tolling from the date of the first dismissal until the filing of the current petition; since equitable tolling renders at least one of his claims timely).

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).

POST CON RELIEF - HABEAS - STATUTE OF LIMITATIONS - EQUITABLE TOLLING - IMPROPER DENIAL OF LIBRARY MATERIALS
Ramirez v. Yates, 571 F.3d 993 (9th Cir. Jul. 10, 2009) (district court was required to undertake further factfinding to resolve whether petitioner was entitled to equitable tolling based on the improper denial of library materials).

POST CON RELIEF - FEDERAL - STATUTE OF LIMITATIONS - EQUITABLE TOLLING
Harris v. Carter, 515 F.3d 1051 (9th Cir. Feb. 8, 2008) (reversing district trial court's order of dismissal of a petition for a writ of habeas corpus as untimely, and remanding where equitable principles require tolling of the AEDPA's statute of limitations in this rare case in which petitioner relied on the circuit court's legally erroneous holding in determining when to file a federal habeas petition).

POST CON RELIEF - FEDERAL - HABEAS - STATUTE OF LIMITATIONS -- EQUITABLE TOLLING - LACK OF ADEQUATE LAW LIBRARY
Roy v. Lampert, ___ F.3d ___ (9th Cir. Sept. 22, 2006) (federal habeas petitions dismissed as untimely by district court remanded for evidentiary hearing on equitable tolling claims where petitioners made sufficient allegations that they pursued their claims diligently and faced extraordinary circumstances once they were transferred to an Arizona prison facility which allegedly had a woefully deficient law library. http://caselaw.lp.findlaw.com/data2/circs/9th/0435514p.pdf

POST CON RELIEF - FEDERAL - HABEAS - EQUITABLE TOLLING - DEFICIENT LAW LIBRARY
Roy v. Lampert, ___ F.3d ___ (9th Cir. Jul. 12, 2006) (reversing dismissal of petitioners' federal habeas petitions as untimely, and ordering evidentiary hearing on their equitable tolling claim, where they made sufficient allegations that they pursued their claims diligently and faced extraordinary circumstances once they were transferred to an Arizona prison facility which allegedly had a woefully deficient law library). http://caselaw.lp.findlaw.com/data2/circs/9th/0435514p.pdf

POST CON - HABEAS CORPUS - FEDERAL - HEARING ON TOLLING
Roy v. Lampert, __ F.3d __ (9th Cir. July 12, 2006) (petitioners entitled to evidentiary hearing regarding claim that because they were transferred to a prison with a "woefully deficient law library," statute of limitations should be equitably tolled).

HABEAS CORPUS - FEDERAL - TOLLING DUE TO PRISON'S FAILURE TO PROVIDE LAW LIBRARY MATERIALS
Mendoza v. Carey, __ F.3d __ (9th Cir. Jun. 7, 2006) (evidentiary hearing required to determine if prison's failure to provide Spanish-language materials and assistance to Spanish-speaking inmates constituted extraordinary circumstance justifying tolling of one-year period for filing federal habeas petition); distinguishes Kane v. Garcia Espitia, 126 S. Ct. 407, 408 (2005) (per curiam) (denial of access to a law library cannot provide a basis for a pro se petitioner's habeas relief) because Mendoza only involves the tolling of an AEDPA deadline, not grant of habeas relief.

POST CON RELIEF - HABEAS CORPUS - FEDERAL - STATUTE OF LIMITATIONS - EQUITABLE TOLLING
Rasberry v. Garcia, ___ F.3d ___ (9th Cir. May 25, 2006) (equitable tolling of federal habeas statute of limitations is not justified by lack of sophistication of pro se petitioner, standing alone, as an extraordinary circumstance).
http://caselaw.lp.findlaw.com/data2/circs/9th/0315854p.pdf

POST CON RELIEF - HABEAS CORPUS - FEDERAL - STATUTE OF LIMITATIONS - EQUITABLE TOLLING WHILE PETITIONER IN SEGREGATION
Espinoza-Matthews v. People of the State of California, ___ F.3d ___ (9th Cir. Dec. 28, 2005) (petitioner in administrative segregation for his own protection who was denied access to his legal materials was entitled to equitable tolling [extraordinary circumstances beyond a prisoner's control making it impossible to file a petition on time] of the one-year AEDPA statute of limitations to file federal habeas corpus under 28 U.S.C. 2254).

POST CON RELIEF - FEDERAL - HABEAS - STATUTE OF LIMITATIONS - EQUITABLE TOLLING
Espinoza-Matthews v. People of California, ___ F.3d ___, 2005 WL 3535129 (9th Cir. Dec. 28, 2005) (reversing dismissal of defendants petition for a writ of habeas corpus from his conviction as untimely, since defendant is entitled to equitable tolling where he was denied access to his legal materials for a period of time).
http://caselaw.lp.findlaw.com/data2/circs/9th/0456805p.pdf

POST CON RELIEF - FEDERAL - HABEAS
United States v. Battles, 362 F.3d 1195 (9th Cir. March 30, 2004) (equitable tolling applies to one year time limitation in 28 U.S.C. 2255).
http://caselaw.lp.findlaw.com/data2/circs/9th/0015134p.pdf

POST-CONVICTION RELIEF - FEDERAL - HABEAS
United States v. Battles, __ F.3d __ (9th Cir. March 30, 2004) (Equitable tolling applies to one year time limitation in 28 U.S.C. 2255).
http://caselaw.lp.findlaw.com/data2/circs/9th/0015134p.pdf

Lower Courts of Ninth Circuit

POST CON RELIEF " HABEAS " STATUTE OF LIMITATIONS " EQUITABLE TOLLING " PRACTICE ADVISORY
In the Ninth Circuit, counsel can argue the habeas statute of limitations has been extended by equitable tolling due to extraordinary circumstances. Ineffective assistance of counsel is one of these circumstances. Strickland v. Washington, 466 U.S. 668, 687 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Castillo-Perez v. INS, 212 F.3d 518, 524-28 (9th Cir. 2000); Barraza-Rivera v. INS, 913 F.2d 1443, 1448 (9th Cir. 1990). Deadlines for motions to reopen due to extraordinary circumstances can be equitably tolled where extraordinary circumstances are concealed by attorney or notary public fraud or mistake. Iturribarria v. INS, 321 F.3d 889, 897-98 (9th Cir. 2003); Fajardo v. INS, 300 F.3d 1018 (9th Cir. 2002) (attorney imposter failed to notify noncitizen of the obligation to appear within removal proceedings); Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir. 2000), (attorneys failure to apply for discretionary relief from deportation ruled exceptional circumstances); Castillo-Perez v. INS, supra, (same). Thanks to Claude Piller.

Tenth Circuit

POST CON RELIEF " VEHICLES " FEDERAL HABEAS CORPUS TO REVIEW STATE CONVICTION " STATUTE OF LIMITATIONS " EQUITABLE TOLLING
Al-Yousif v. Trani, ___ F.3d ___, 2015 WL 968432 (10th Cir. Mar. 6, 2015) (counsel's reliance on incorrect date did not warrant equitable tolling of Antiterrorism and Effective Death Penalty Act's one-year limitations period to file an application for a writ of habeas corpus under 28 U.S.C. 2254).