Post-Conviction Relief for Immigrants

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).