Justices Debate Whether Lawyer Negligence Can Extend Habeas Deadline

The ScotusWiki file for Holland v. Florida is at:

http://www.scotuswiki.com/index.php?title=Holland_v._Florida


Justices Debate Whether Lawyer Negligence Can Extend Habeas Deadline
Marcia Coyle | The National Law Journal

The U.S. Supreme Court on Monday struggled with just how bad a lawyer must be
to warrant stopping the clock on the time for filing a prisoner's federal
habeas petition.

In Holland v. Florida, the justices confronted two issues: whether the
one-year deadline for filing habeas petitions under the Antiterrorism and
Effective Death Penalty Act can be tolled for equitable reasons, and whether a
lawyer's gross negligence is one of those reasons for halting the clock.

The issues stem from the death penalty conviction of Albert Holland in 1991.
After his conviction became final in 2001, Holland had 365 days to file a
federal habeas petition. The state of Florida appointed Bradley Collins to
represent him in state post-conviction proceedings and Collins filed a state
post-conviction motion 351 days into the one-year federal state of
limitations. That motion stopped the clock on the one-year deadline, but the
clock would resume moving once his post-conviction motion was denied --
leaving him only 14 days in which to file the federal petition. Collins
ultimately missed that deadline.

On Monday, Todd Scher of the Law Office of Todd G. Scher in Miami Beach, Fla.,
told the justices that the 11th U.S. Circuit Court of Appeals was wrong when
it held that attorney negligence, even gross negligence, does not entitle a
habeas petitioner to a tolling of the limitations period absent additional
allegations of "bad faith, dishonesty, divided loyalty, mental impairment or
so forth."

What happened in Holland's case, Scher said, "goes beyond garden-variety
negligence." He recounted how Holland repeatedly told Collins that he wanted
to preserve his right to file a federal petition if his state petition was
denied. Collins did not keep in close communication with Holland. The death
row inmate made several pro se motions in attempts to remove Collins from his
case. Holland, with an eye on the federal filing deadline, also contacted the
clerk of the Florida Supreme Court several times to check on the status of his
post-conviction appeal when Collins was nonresponsive. His pro se motions were
dismissed because, the state argued successfully, he was represented by
counsel. More than a month after the Florida Supreme Court issued its
decision, Holland learned of the decision after getting access to the prison's
library.

When pressed by Justice Samuel Alito Jr. on what the test should be for
tolling the limitations period in situations involving attorney negligence,
Scher replied, "Extraordinary circumstances coupled with the petitioner's
diligence. It's a case-by-case determination. Here we had lack of notice to
the petitioner that the state court decision had issued and a failure to
communicate."

Justice Anthony Kennedy noted that Holland was more knowledgeable than many
prisoners about the habeas procedure. "Suppose you had a client who was
totally bewildered by it. Why shouldn't he be more protected than your client?
I'm not sure where to draw the line."

Scher emphasized that Holland was "stuck with this lawyer. The state refused
to allow him to even file motions to dismiss the lawyer because he was
represented by a lawyer. We have complete abandonment."

Florida Solicitor General Scott Makar countered that Congress did not intend
to permit equitable tolling for any reason.

"Even if it is a terrible disaster, an earthquake, fire or flood?" asked
Justice Stephen Breyer.

Federal rules, Makar said, may permit exceptions when there are problems with
access to the courts, but he argued that Congress imposed the one-year limit
in order to avoid the use of habeas petitions to delay finality of convictions
and sentences.

Eleven circuits agree that equitable tolling is available under the federal
statute. The Supreme Court has never explicitly ruled on the issue.

"If the Court accepts equitable tolling, it has to be exceptionally narrow,"
said Makar, adding that attorney incompetence cannot be a basis for stopping
the clock. Holland's claims were "garden-variety negligence." Missed
deadlines, he said, were "ordinary, run of the mill events."