Posted on October 25, 2011
A federal habeas petitioner whose attorney took $20,000 and never bothered to file the petition was entitled to equitable tolling of the one-year AEDPA deadline, a Ninth Circuit panel held Monday (10/24/11) in Doe v. Busby, 08-55165. The court writes:
Equitable tolling may be warranted in instances of unprofessional attorney behavior; however, the AEDPA deadline will not be tolled for a garden variety claim of excusable attorney neglect or mistake. See Spitsyn, 345 F.3d at 800-02; see also Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990) (“[T]he principles of equitable tolling described above do not extend to what is at best a garden variety claim of excusable neglect.”). Thus, in cases where a petitioner claims his attorney was the cause of the untimeliness, courts must examine if the claimed failure was one of mere negligence by the attorney, such as inadvertently miscalculating a filing deadline in a non-capital case, see Frye v. Hickman, 273 F.3d 1144, 1146 (9th Cir. 2001), or a sufficiently egregious misdeed like malfeasance or failing to fulfill a basic duty of client representation, see Spitsyn, 345 F.3d at 801 (citing Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir. 2003)).
In this case, the attorney’s conduct was “egregious,” and in fact “far more egregious” than that seen in Spitsyn. That finding, coupled with the fact that the petitioner was reasonably diligent in pursuing his claim, warranted equitable tolling of the deadline.