Holland v. Florida: A prisoner's last chance, attorney error, and the antiterrorism and effective death penalty act's one-year statute of limitations period for federal habeas corpus review

Fordham Law Review

Volumn 79, Issue 3, 2010, Pages 1429-1476

  Von Wilpert, Marni ^a  

^a FORDHAM UNIVERSITY   (United States)

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EID: 79951702175     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (529)

1. Powell v. State, 714 N.E.2d 624, 626 (Ind. 1999).
2. Id. at 625.
3. Id. at 626.
4. Id.
5. Id.
6. Id.
7. Powell v. Davis, 415 F.3d 722, 725 (7th Cir. 2005).
8. Id.
9. Id.
10. Id.
11. Id.
12. Id.
13. The procedural mechanism for filing a federal habeas petition challenging a state court's judgment is 28 U.S.C. §2254 (2006). The analogous provision for federal prisoners is found in id. § 2255.
14. Id. § 2244(d)(1). The corresponding limitations period for prisoners in federal custody is id. § 2255.
15. Powell, 415 F.3d at 726.
16. Powell v. State, 714 N.E.2d 624, 630 (Ind. 1999).
17. Equitable tolling is an equitable remedy the court can use to allow the prisoner another chance to file a habeas petition, even though the statutory limitations period has passed, if in the particular situation, applying the statute rigidly would be fundamentally unfair to the prisoner.
18. See infra Part I.B.
19. Powell, 415 F.3d at 726.
20. Id. at 727.
21. Id.
22. 130 S. Ct. 2549 (2010).
23. Id. at 2554.
24. Id.
25. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS Introduction (2000).
26. See Bryan A. Stevenson, Confronting Mass Imprisonment and Restoring Fairness to Collateral Review of Criminal Cases, 41 HARV. C.R.-C.L. L. REV. 339, 340 (2006);
27. see also Giovanna Shay, Ad Law Incarcerated, 14 BERKELEY J. CRIM. L. 329, 336-337 (2009) (noting that "[t]he number of incarcerated Americans increased by a factor of seven between 1970 and 2007, resulting in 1 of every 131 Americans being incarcerated in prison or jail by mid-year 2007");
28. see also BUREAU OF JUSTICE STATISTICS, FEDERAL HABEAS CORPUS REVIEW: CHALLENGING STATE COURT CRIMINAL CONVICTIONS vi (1995), available at http://contentdm.ncsconline.org/cgi-bin/showfile.exe?CISOROOT=/ criminal&CISOPTR= 103 (predicting that habitual offender statutes and "three strikes" laws are likely to increase the proportion of prisoners with life sentences and thus increase the total prison population as fewer prisoners are exiting prison systems).
29. See Strickland v. Washington, 466 U.S. 668, 686 (1984) (holding that "the right to counsel is the right to the effective assistance of counsel")
30. (citing McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).
31. See AM. BAR ASS'N, GIDEON'S BROKEN PROMISE: AMERICA'S CONTINUING QUEST FOR EQUAL JUSTICE 7 (2004) [hereinafter GIDEON'S BROKEN PROMISE];
32. see also Dennis E. Curtis & Judith Resnik, Grieving Criminal Defense Lawyers, 70 FORDHAM L. REV. 1615, 1619 (2002).
33. See GIDEON'S BROKEN PROMISE, supra note 26, at 38;
34. see generally Bruce A. Green, Criminal Neglect: Indigent Defense from a Legal Ethics Perspective, 52 EMORY L.J. 1169 (2003).
35. See Stevenson, supra note 24, at 344-45 ("[E]xamples abound of capital defendants represented by sleeping attorneys, drunk attorneys, attorneys largely unfamiliar with death penalty law and procedure, and attorneys who otherwise could not provide the assurance of reliability or fairness that criminal proceedings require.") (internal citations omitted);
36. see also Curtis & Resnik, supra note 26, at 1619 (explaining that many defense attorneys cannot spend adequate time on each client by describing one lawyer who was assigned 1600 misdemeanor cases in a single year).
37. See GIDEON'S BROKEN PROMISE, supra note 26, at 3.
38. Fay v. Noia, 372 U.S. 391, 400-02 (1963) (stating that the writ of habeas corpus is "inextricably intertwined with the growth of fundamental rights of personal liberty").
39. 28 U.S.C. § 2241 (c) (3) (2006).
40. Riddle v. Dyche, 262 U.S. 333, 336 (1923) (stating that the "writ of habeas corpus is not a proceeding in the original criminal prosecution but an independent civil suit") (emphasis omitted).
41. See RANDY HERTZ & JAMES S. LIEBMAN, 1 FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE 16 (2001).
42. See 28 U.S.C. § § 2241 (c), 2254(a).
43. The Habeas Corpus Reform Act of 1982: Hearing on S. 2216 Before the S. Comm. on the Judiciary, 97th Cong. 198 (1982) [hereinafter Hearings on S. 2216] (statement of Phylis Skloot Bamberger on behalf of the National Legal Aid and Defender Association);
44. see also Michael Mello & Donna Duffy, Suspending Justice: The Unconstitutionality of the Proposed Six-Month Time Limit on the Filing of Habeas Corpus Petitions by State Death Row Inmates, 18 N.Y.U. REV. L. & Soc. CHANGE 451, 481-84 (1990-1991) (noting that many habeas petitioner "inmates are illiterate, uneducated, mentally impaired, or any combination of the three").
45. See Stevenson, supra note 24, at 354.
46. Lott v. Mueller, 304 F.3d 918, 923 (9th Cir. 2002).
47. See Anne R. Traum, Last Best Chance for the Great Writ: Equitable Tolling and Federal Habeas Corpus, 68 MD. L. REV. 545, 553 (2009).
48. See Stevenson, supra note 24, at 342.
49. BELDEN RUSSONELLO & STEWART, OPEN SOC'Y INST. & NAT'L LEGAL AID AND DEFENDER ASS'N, DEVELOPING A NATIONAL MESSAGE FOR INDIGENT DEFENSE: ANALYSIS OF NATIONAL SURVEY 8 (2001), available at http://www.nlada.org/DMS/Documents/ 1211996548.53/Polling%20results%20report.pdf.
50. See Federal Habeas Corpus Reform: Eliminating Prisoners ' Abuse of the Judicial Process: Hearing on S. 623 Before the S. Comm. on the Judiciary, 104th Cong. 89 (1995) [hereinafter Hearings on S. 623] (statement of Nicholas deB. Katzenbach, former Att'y Gen. of the United States) ("[Assignment of competent counsel in post-conviction proceedings actually speeds capital cases along and reduces their cost.");
51. see also James A. Cohen, Lawyer Role, Agency Law, and the Characterization "Officer of the Court", 48 BUFF L. REV. 349, 350 (2000) (explaining that "[l]awyers do perform a screening or gatekeeping function for the courts, society, and clients [and]... [c]ourts, therefore, have some assurance that complaints and defenses have some merit"). Furthermore, Congress included an "opt-in" provision in AEDPA allowing states to take advantage of more restrictive habeas corpus procedures if they agree to provide post-conviction counsel for prisoners. For a description of AEDPA's "opt-in" provision,
52. see generally Burke W. Kappler, Small Favors: Chapter 154 of the Antiterrorism and Effective Death Penalty Act, the States, and the Right to Counsel, 90 J. CRIM. L. & CRIMINOLOGY 467 (2000).
53. Lisa L. Bellamy, Playing for Time: The Need for Equitable Tolling of the Habeas Corpus Statute of Limitations, 32 AM. J. CRIM. L. 1, 10 (2004).
54. See Hearings on S. 623, supra note 41, at 2 (statement of statement of Sen. Orrin G. Hatch) (arguing that prisoners' "abuse of habeas corpus litigation, particularly in those cases involving lawfully imposed death sentences, has ... drained State criminal justice resources, and taken a dreadful toll on victims' families");
55. BUREAU OF JUSTICE STATISTICS, supra note 24, at 21 (stating that concerns about the lengthy process of death penalty cases dominate policy discussions about habeas corpus reform).
56. See Bellamy, supra note 42, at 10;
57. Curtis & Resnik, supra note 26, at 1625 (explaining that Congress has codified procedural obstacles to prisoner litigation on the prevailing view that prisoners complain too much).
58. See Hearings on S. 623, supra note 41, at I.
59. Williams v. Taylor, 529 U.S. 420, 436 (2000) (reasoning that AEDPA's purpose is to "limit the scope of federal intrusion into state criminal adjudications and to safeguard the States' interest in the integrity of their criminal and collateral proceedings");
60. see also Panel Discussion, Capital Punishment: Is There Any Habeas Left in This Corpus?, 27 LOY. U. Cm. L.J. 560, 565 (1996) [hereinafter Panel Discussion] (Professor Larry Yackle stated that, "The drafters of this bill obviously want this provision to restrict a prisoner's ability to get an evidentiary hearing in federal court");
61. Traum, supra note 38, at 547 (explaining that the function of AEDPA's statute of limitations is to "guard[] the door to federal habeas review").
62. The one-year limitations period is codified in 28 U.S.C §2244(d)(1) (2006), which states: A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
63. (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
64. the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review;
65. or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244 (d) (1).
66. See Bellamy, supra note 42, at 12. Instead, the Supreme Court had consistently maintained that the right to habeas corpus review could not be conditioned on the passage of time.
67. See Day v. McDonough, 547 U.S. 198, 215 (2006) (noting that the Court had repeatedly asserted that "the passage of time alone could not extinguish the habeas corpus rights of a person subject to unconstitutional incarceration") (Scalia, J, dissenting);
68. Vasquez v. Hillery, 474 U.S. 254, 264 (1986) (declining to adopt a judicial rule which would "condition the grant of relief upon the passage of time between a conviction and the filing of a petition for federal habeas corpus").
69. See, e.g., Downs v. McNeil, 520 F.3d 1311 (11th Cir. 2008);
70. Fleming v. Evans, 481 F.3d 1249 (10th Cir. 2007);
71. Trapp v. Spencer, 479 F.3d 53 (1st Cir. 2007);
72. Sellers v. Burt, 168 Fed. App'x 132 (8th Cir. 2006);
73. Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003);
74. Modrowski v. Mote, 322 F.3d 965 (7th Cir. 2003);
75. David v. Hall, 318 F.3d 343 (1st Cir. 2003);
76. Fierro v. Cockrell, 294 F.3d 674 (5th Cir. 2002);
77. Smaldone v. Senkowski, 273 F.3d 133 (2d Cir. 2001);
78. Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000);
79. Miller v. N.J. State Dep't of Corr, 145 F.3d 616 (3d Cir. 1998).
80. Holland v. Florida, 539 F.3d 1334 (11th Cir. 2008),
81. cert, granted 130 S. Ct. 398 (U.S. Oct. 13, 2009) (No. 09-5327).
82. See Panel Discussion, supra note 46, at 563 (stating that due to the complicated pleading requirements of a habeas petition a one-year period will be "nearly impossible to comply with").
83. See, e.g., Spitsyn, 345 F.3d at 797-800 (deciding whether equitable tolling applied when an attorney took the prisoner's fee payment and had not done any work on the case for over a year).
84. Holland v. Florida, 130 S. Ct. 2549, 2554-60 (2010).
85. See, e.g., Lawrence v. Florida 549 U.S. 327, 336-37 (2007) (deciding whether an attorney's mistaken belief about the triggering of AEDPA's limitations period should excuse the prisoner's late petition);
86. see also Lott v. Mueller, 304 F.3d 918, 922-23 (9th Cir. 2002);
87. Smaldone, 273 F.3d at 138-39. As discussed in Part II infra, one of Holland's attorney's many errors included miscalculating Holland's AEDPA time period.
88. See Holland, 130 S. Ct. at 2558. Indeed, due to the statute's complexity and resulting confusion, the Supreme Court itself has reviewed AEDPA's limitations period twelve times since its enactment over thirteen years ago.
89. See Traum, supra note 38, at 553.
90. Nara v. Frank, 264 F.3d 310, 319 (3d Cir. 2001);
91. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (noting that courts "can allow an untimely petition to proceed under the doctrine of equitable tolling").
92. See, e.g., Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000) ("[E]quity must be reserved for those rare instances where ... it would be unconscionable to enforce the limitation period against the party and gross injustice would result.");
93. Miller v. N.J. State Dep't of Corr, 145 F.3d 616, 618 (3d Cir. 1998) (noting that equitable tolling is only applied when the rigid application of the limitations period would be unfair).
94. Nara, 264 F.3d at 320.
95. Trapp v. Spencer, 479 F.3d 53, 60 (1st Cir. 2007) ("In applying the equitable tolling doctrine, an important factor is the reason for the late filing.").
96. See, e.g., Powell v. Davis, 415 F.3d 722, 726 (7th Cir. 2005) (noting petitioner's argument that the state public defender's negligence warranted equitable tolling);
97. Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (noting that petitioner sought equitable tolling because of his attorney's mistaken belief about the AEDPA statute).
98. 501 U.S. 722 (1991).
99. Id. at 752 ("There is no constitutional right to an attorney in state post-conviction proceedings.").
100. 549 U.S. 327, 336 (2007) (noting the petitioner's argument that "his counsel's mistake in miscalculating [AEDPA's] limitations period entitles him to equitable tolling").
101. Id. at 336 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
102. Before the Court decided to apply equitable tolling in certain cases of attorney default, it had to determine whether equitable tolling was applicable to AEDPA's limitations period at all. The circuit courts of appeals had been applying equitable tolling to AEDPA's limitations period since the late 1990s, and this issue was argued and finally decided in Holland.
103. See infra Part II for a description of Holland's treatment of this issue. The issue of whether AEDPA should be subject to equitable tolling at all is beyond the scope of this Comment, and indeed has been the sole subject of many pre-Holland academic discussions and articles. The focus of this Comment, rather, is directed toward the attorney-client relationship in the post-conviction habeas corpus context, and the ever-increasing prevalence of substandard legal representation that requires the extraordinary remedy of equitable tolling in order to maintain the procedural fairness that the justice system demands. For further discussions of equitable tailing's general applicability to AEDPA's statute of limitations,
104. see generally Bellamy, supra note 42;
105. Stevenson, supra note 24;
106. Traum, supra note 38.
107. See, e.g., Downs v. McNeil, 520 F.3d 1311, 1319 (11th Cir. 2008) ("This Court has used equitable tolling to extend the federal limitations period for prisoners seeking federal review of their state convictions . . . .");
108. Fleming v. Evans, 481 F.3d 1249, 1256 (10th Cir. 2007) ("[Sufficiently egregious misconduct on the part of a habeas petitioner's counsel may justify equitable tolling of the AEDPA limitations period.");
109. Trapp v. Spencer, 479 F.3d 53, 59 (1st Cir. 2007) ("In this circuit, we have allowed for equitable tolling of [AEDPA's] limitations period . . . .");
110. United States v. Martin, 408 F.3d 1089, 1092 (8th Cir. 2005) ('"The statute of limitations contained in § 2255 [AEDPA] is subject to equitable tolling.'" (
111. quoting United States v. Battles, 362 F.3d 1195, 1197 (9th Cir. 2004)));
112. Spitsyn v. Moore, 345 F.3d 796, 799 (9th Cir. 2003) ("[T]he one-year statute of limitations for filing a habeas petition may be equitably tolled....");
113. Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001) (stating that the court has discretion to apply principles of equity in AEDPA);
114. Harris v. Hutchinson, 209 F.3d 325, 328 (4th Cir. 2000) ("As a general matter, principles of equitable tolling may ... apply to excuse a plaintiffs failure to comply with the strict requirements of [AEDPA's] statute of limitations.");
115. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (proclaiming that the Second Circuit agrees that AEDPA is subject to equitable tolling);
116. Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir. 1999) (explaining that under AEDPA, "[a] court can allow an untimely petition to proceed under the doctrine of equitable tolling").
117. Holland v. Florida, 130 S. Ct. 2549, 2562 (2010)
118. (holding that AEDPA's statute of limitations, 28 U.S.C. § 2244(d) (2006), is subject to equitable tolling).
119. Lawrence v. Florida, 549 U.S. 327, 336 (2007);
120. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
121. See, e.g., Barreto-Barreto v. United States, 551 F.3d 95, 101 (1st Cir. 2008) ("[Petitioners carry the burden of demonstrating that extraordinary circumstances beyond their control 'prevented timely filing.'"
122. (quoting Trenkler v. United States, 268 F.3d 16, 25 (1st Cir. 2001)));
123. Downs, 520 F.3d at 1319
124. (citing Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000)) (explaining that the court's precedents require not only extraordinary circumstances, but circumstances that are beyond the petitioner's control);
125. Spitsyn, 345 F.3d at 799 (holding that "the one-year statute of limitations for filing a habeas petition may be equitably tolled if 'extraordinary circumstances beyond a prisoner's control make it impossible to file a petition on time'" (
126. quoting Brambles v. Duncan, 330 F.3d 1197, 1202 (9th Cir. 2003)));
127. Harris, 209 F.3d at 330 (explaining that equitable tolling is only appropriate when '"extraordinary circumstances beyond plaintiffs' control made it impossible to file the claims on time'"
128. (quoting Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996))).
129. See, e.g., Prieto v. Quarterman, 456 F.3d 511, 514-15 (5th Cir. 2006) (applying equitable tolling because petitioner detrimentally relied on a misleading filing extension granted by the district court when filing his habeas petition).
130. Knight v. Schofield, 292 F.3d 709, 710, 712 (11th Cir. 2002) (holding that equitable tolling was warranted when a government official, the Clerk of the State Supreme Court, had misled a petitioner about the habeas filing procedure).
131. Lott v. Mueller, 304 F.3d 918, 924-25 (9th Cir. 2002).
132. See Roy v. Lampert, 465 F.3d 964, 975 (9th Cir. 2006) (holding that equitable tolling would be warranted by the extraordinary circumstances a prisoner faced while attempting to access the prison library to do legal research in order to determine his AEDPA deadline).
133. Spottsville v. Terry, 476 F.3d 1241,1246 (11th Cir. 2007) (holding that when a court misled the prisoner about the filing deadline, the prisoner's subsequent late filing was "not his fault").
134. At the criminal trial level, for example, criminal defendants are not bound to the consequences of their attorney's substandard legal representation but instead may obtain a new trial if their attorney does not perform with "reasonably effective assistance."
135. See Strickland v. Washington, 466 U.S. 668, 687 (1984). However,
136. the Court later clarified in Coleman v. Thompson that its ruling was not based on the premise that when the attorney's errors are egregious the attorney ceases to be an agent of the defendant, rather, it is the Sixth Amendment itself that requires responsibility for the attorney's default to be imputed to the state. 501 U.S. 722, 754 (1991). Nonetheless, the Strickland precedent still stands and is representative of the Court's hesitation to hold criminal defendants responsible for the consequences of their attorney's failures in many stages of the criminal justice system.
137. See, e.g., Lawrence v. Florida, 549 U.S. 327, 336-37 (2007) (precluding equitable tolling for a petitioner when his attorney failed to file a timely habeas corpus petition on his behalf);
138. Coleman, 501 U.S. at 752-53 (holding that litigants must "bear the risk of attorney error that results in a procedural default");
139. Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 91, 96 (1990) (precluding equitable tolling of an employment discrimination law's limitations period when a petitioner's attorney failed to file a timely complaint because the attorney was not in the country when the limitations period elapsed);
140. Taylor v. Illinois, 484 U.S. 400, 417-18 (1988) (striking down a litigant's argument that the attorney's sins should not be constructively attributed to the client because "[t]he argument that the client should not be held responsible for his lawyer's misconduct strikes at the heart of the attorney-client relationship");
141. Link v. Wabash R.R. Co, 370 U.S. 626, 634-36 (1962) (holding that a litigant's case was dismissed for failure to prosecute when his attorney failed to appear in a pretrial conference because in "our system of representative litigation . . . each party is deemed bound by the acts of his lawyer-agent").
142. See also Cohen, supra note 41, at 349 (noting that "[t]he law of agency has governed American lawyers since before the Revolution").
143. See 1 HERTZ & LIEBMAN, supra note 33, at 16.
144. Lawrence, 549 U.S. at 336-37;
145. Downs v. McNeil, 520 F.3d 1311, 1325 (11th Cir. 2008) (holding that mere attorney negligence does not justify equitable tolling);
146. Trapp v. Spencer, 479 F.3d 53, 60 (1st Cir. 2007) ("[M]istake by counsel in reading [AEDPA] or computing the time limit is, at most, a routine error and does not . . . [warrant] equitable tolling.") (internal quotation marks omitted);
147. Fleming v. Evans, 481 F.3d 1249, 1255 (10th Cir. 2007) ("Habeas counsel's negligence is not generally a basis for equitable tolling...");
148. Sellers v. Burt, 168 F. App'x 132, 133 (8th Cir. 2006) (ineffective assistance of counsel generally does not warrant equitable tolling in habeas proceedings);
149. Modrowski v. Mote, 322 F.3d 965, 967-68 (7th Cir. 2003) (holding that attorney negligence is not grounds for equitable tolling);
150. Spitsyn v. Moore, 345 F.3d 796, 800 (9th Cir. 2003) (holding that ordinary attorney negligence will not justify equitable tolling);
151. David v. Hall, 318 F.3d 343, 346 (1st Cir. 2003) (noting that principles of equitable tolling do not extend to excusable neglect);
152. Fierro v. Cockrell, 294 F.3d 674, 683 (5th Cir. 2002) (holding that an attorney's erroneous interpretation of AEDPA's statute of limitations cannot excuse the prisoner's failure to file on time);
153. Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (noting that attorney error does not create the extraordinary circumstances equitable tolling requires);
154. Harris v. Hutchinson, 209 F.3d 325, 331 (4th Cir. 2000) ("[A] mistake by a party's counsel in interpreting a statute of limitations does not present the extraordinary circumstance beyond the party's control where equity should step in ....");
155. Miller v. N.J. State Dep't of Corr, 145 F.3d 616, 619 (3d Cir. 1998) (holding that excusable neglect is not sufficient justification for equitable tolling).
156. See Lawrence, 549 U.S. at 336-37 (holding that "[a]ttorney miscalculation is simply not sufficient to warrant equitable tolling");
157. David, 318 F.3d at 346 (holding that "a mistake by counsel in reading the statute or computing the time limit" does not warrant equitable tolling).
158. See Fierro, 294 F.3d at 683 (holding that an attorney's erroneous interpretation of AEDPA's statute of limitations provision cannot, on its own, excuse the prisoner's failure to file on time).
159. See, e.g., Rouse v. Lee, 339 F.3d 238, 245-46, 249-50 (4th Cir. 2003) (holding that an attorney's mistaken belief that the mailbox rule in Federal Rule of Civil Procedure 6(e) applies to AEDPA's limitations period will not excuse an untimely habeas petition).
160. See, e.g., Coleman v. Thompson, 501 U.S. 722, 753 (1991) (holding that attorney error is not grounds to excuse an untimely petition because "the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation");
161. Modrowski, 322 F.3d at 968 ("[A]ttorney negligence is not extraordinary and clients, even if incarcerated, must 'vigilantly oversee,' and ultimately bear responsibility for, their attorneys' actions or failures."
162. (quoting Johnson v. McCaughtry, 265 F.3d 559, 566 (7th Cir. 2001)));
163. See Lawrence, 549 U.S. at 336 (addressing the question of whether an attorney's error in miscalculating AEDPA's limitations period entitles the petitioner to equitable tolling).
164. See, e.g., Downs v. McNeil, 520 F.3d 1311, 1321-22 (11th Cir. 2008) (noting that "serious attorney misconduct may constitute an extraordinary circumstance for purposes of equitable tolling");
165. Fleming v. Evans, 481 F.3d 1249, 1256 (10th Cir. 2007) (holding that "sufficiently egregious misconduct on the part of a habeas petitioner's counsel may justify equitable tolling of the AEDPA limitations period");
166. United States v. Martin, 408 F.3d 1089, 1093 (8th Cir. 2005) ("[S]erious attorney misconduct, as opposed to mere negligence, 'may warrant equitable tolling.'")
167. (quoting Beery v. Ault, 312 F.3d 948, 952 (8th Cir. 2002));
168. Baldayaque v. United States, 338 F.3d 145, 152-53 (2d Cir. 2003) (holding that sufficiently egregious misconduct may justify the use of equitable tolling);
169. Ford v. Hubbard, 330 F.3d 1086, 1106 (9th Cir. 2003) (finding that "there are instances in which an attorney's failure to take necessary steps to protect his client's interests is so egregious and atypical that the court may deem equitable tolling appropriate");
170. United States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002) (holding that an attorney's deception is the sort of extraordinary circumstance that could warrant the use of equitable tolling);
171. Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001) (holding that an attorney's effective abandonment of the case may warrant equitable tolling).
172. Martin, 408 F.3d at 1094 (finding misconduct where an attorney told the prisoner that "there was no such thing as a one-year filing deadline").
173. Spitsyn v. Moore, 345 F.3d 796, 798, 801 (9th Cir. 2003) (finding misconduct when an attorney accepted a retainer payment then failed to do any work or respond to prisoner's letters or phone calls for over a year, by which time the deadline had lapsed);
174. Nara, 264 F.3d at 320 (holding that equitable tolling would be justified if the petitioner's attorney effectively abandoned the case).
175. Martin, 408 F.3d at 1094 (finding misconduct where the attorney lied to prisoner by telling him that he had filed the prisoner's petition, which was not true);
176. Wynn, 292 F.3d at 230 ("Wynn's allegation that he was deceived by his attorney into believing that a timely [habeas corpus] motion had been filed on his behalf presents a 'rare and extraordinary circumstance' beyond petitioner's control that could warrant equitable tolling of the statute of limitations."). Notably, some of the courts of appeals found that an attorney's behavior constitutes misconduct when an attorney violates the professional duties of care that she owes to the client.
177. See, e.g., Baldayaque, 338 F.3d at 152 (finding misconduct when the attorney violates the duty of loyalty that she, as an agent, owes to the client);
178. see also RESTATEMENT (THIRD) OF AGENCY §8.01 (2006) ("An agent has a fiduciary duty to act loyally for the principal's benefit in all matters connected with the agency relationship."). The American Bar Association (ABA) Model Rules of Professional Conduct state that a lawyer engages in professional misconduct when she violates or attempts to violate the Rules of Professional Conduct by breaching the duties attorneys owe to clients.
179. MODEL RULES OF PROF'L CONDUCT R. 8.4 (2003). The Court relied on these Model Rules when deciding to make an exception to agency principles in Strickland, and also adopted the Model Rules reasoning in Holland, citing an amicus brief written by a group of extremely astute legal ethics professors.
180. See Holland v. Florida, 130 S. Ct. 2549, 2564-65
181. (citing Brief for Legal Ethics Professors et al. as Amici Curiae Supporting Petitioners, Holland v. Florida, 130 S. Ct. 2549 (2010) (No. 09-5237));
182. Strickland v. Washington, 466 U.S. 668, 688 (1984) (referencing the "[p]revailing norms of practice as reflected in American Bar Association standards").
183. See Downs, 520 F.3d at 1321 (holding that "when an attorney's conduct is so egregious it amounts to a de facto termination of representation, it would be improper to hold the client to the actions of his agent");
184. Baldayaque, 338 F.3d at 154 ("[W]hen an 'agent acts in a manner completely adverse to the principal's interest,' the 'principal is not charged with [the] agent's misdeeds.'") (Jacobs, J, concurring) (quoting Nat'l
185. Union Fire Ins. Co. v. Bonnanzio, 91 F.3d 296, 303 (2d Cir. 1996))).
186. See, e.g., Powell v. Davis, 415 F.3d 722, 727 (7th Cir. 2005) ('"[A]ttorney misconduct, whether labeled negligent, grossly negligent, or willful, is attributable to the client' and thus is not a circumstance beyond a petitioner's control that might excuse an untimely petition.") (quoting
187. Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir. 2003));
188. United States v. 7108 W. Grand Ave, 15 F.3d 632,634 (7th Cir. 1994) (precluding equitable tolling because the errors and misconduct of the lawyer redound upon and bind the principal (i.e., the client)).
189. Holland v. Florida, 539 F.3d 1334 (11th Cir. 2008), cert, granted 130 S. Ct. 398 (U.S. Oct. 13, 2009) (No. 09-5327).
190. See also Holland, 130 S. Ct. at 2560 ("Because the [Eleventh Circuit] Court of Appeals' application of the equitable tolling doctrine to instances of professional misconduct conflicts with the approach taken by other Circuits, we granted the petition [for certiorari].").
191. Holland, 130 S. Ct. at 2555.
192. Id. at 2555-57.
193. Id. at 2557.
194. Id. at 2559.
195. Id.
196. Lawrence v. Florida, 549 U.S. 327, 336 (2007).
197. See also Bellamy, supra note 42, at 29 ("[C]ourts frequently hold that despite the existence of extraordinary circumstances, prisoners' delays do not warrant equitable tolling because they have not exercised reasonable diligence in pursuing their claims.").
198. Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999) (finding the prisoner did not act with the requisite diligence even though the court "recognize[d] that Fisher's incarceration prevented him from knowing sooner of AEDPA's limitation period").
199. See Powell v. Davis, 415 F.3d 722, 728 (7th Cir. 2005);
200. Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir. 2003) (holding that "petitioners bear ultimate responsibility for their [habeas corpus] filings, even if that means preparing duplicative petitions").
201. Holland, 130 S. Ct. at 2556.
202. See Rand v. Rowland, 154 F.3d 952, 958 (9th Cir. 1998) (en banc).
203. See, e.g., Green, supra note 27, at 1171 (stating that "[i]t is hard for clients themselves ... to know most of what happens from the time the lawyer is assigned to represent an indigent defendant until the time the defendant pleads guilty");
204. Curtis & Resnik, supra note 26, at 1620 (noting that in the context of the criminal justice system, "[i]ndividual clients, in turn, have little or no ability to monitor their own lawyers").
205. Holland, 130 S. Ct. at 2555.
206. Id. at 2554.
207. Id. at 2555.
208. Id. (citing Holland v. State, 773 So. 2d 1065 (Fla. 2000)).
209. Id., cert, denied, 534 U.S. 834 (2001).
210. Id. at 2555.
211. Id.
212. Id.
213. Id. See also 28 U.S.C. §2244(d)(2) (2006) ("The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.").
214. Holland, 130 S. Ct. at 2555.
215. Id.
216. Id.
217. Id.
218. Id.
219. Id.
220. Id.
221. Id. (internal quotation marks omitted).
222. Id.
223. Id. at 2556.
224. Id.
225. Id.
226. Id.
227. Id.
228. Id.
229. Id.
230. Brief for Petitioner at 9-10, Holland v. Florida, 130 S. Ct. 2459 (2010) (No. 09-5327).
231. Id. at 11.
232. Id. at 12 n.12.
233. Id. at 2 n.1.
234. Holland, 130 S. Ct. at 2556.
235. Id.
236. Id.
237. Id.
238. Id.
239. Id.
240. Id. (citing Holland v. State, 916 So. 2d 750 (Fla. 2005) (per curiam)).
241. Id. (citing Holland v. Florida, 539 F.3d 1334, 1337 (11th Cir. 2008)).
242. Id.
243. Id.
244. Id. at 2557 (alteration in original).
245. Id.
246. Id. (citing Holland v. Florida, 539 F.3d 1334, 1337 (11th Cir. 2008)).
247. Id.
248. Id.
249. Id. at 2557-58.
250. Id. at 2558.
251. Id.
252. Id.
253. Id.
254. Id. (internal quotation marks omitted).
255. Id. at 2559.
256. Id.
257. Id.
258. Id.
259. Id.
260. Id.
261. Id.
262. Id.
263. Id.
264. Id. (internal quotation marks omitted).
265. Id. (internal quotation marks omitted).
266. Id.
267. Id.
268. Id. (internal quotation marks omitted) (citing Holland v. Florida, 539 F.3d 1334, 1339 (11th Cir. 2008)).
269. Holland v. Florida, 130 S. Ct. 398 (2009).
270. Holland, 130 S. Ct. at 2549.
271. Brief for Petitioner, supra note 125, at 27.
272. Id. at 36 n.31 (quoting Young v. United States, 535 U.S. 43, 49 (2002)) (internal quotation marks omitted).
273. Id. at 38 (citing Gomez v. United States District Court, 503 U.S. 653, 653-54 (1992)).
274. Id. at 37.
275. Id. at 44 (quoting Downs v. McNeil, 520 F.3d 1311,1318 (11th Cir. 2008)).
276. Holland v. Florida, 539 F.3d 1334, 1339 (11th Cir. 2008).
277. Brief for Petitioner, supra note 125, at 46.
278. Id. at 51-52.
279. Id. at 52-53.
280. Id. at 57-58.
281. Id. at 58.
282. Id. at 59.
283. Id. at 59-60.
284. Id. at 60.
285. Id. at 57-58.
286. Id. at 12 n.12, 14.
287. Id. at 8 n.8 (noting that "[t]he Florida Bar did not initiate an investigation and did not request that Collins respond [to the complaint against him]").
288. Id. at 19.
289. Id. at 21-22 (noting that "the prison limits the hours that [Holland] may have access to the law library and the law materials contained there are very limited") (internal quotation marks omitted).
290. Id. at 55;
291. see also Holland v. Florida, 130 S. Ct. 2549, 2557 (2010).
292. Brief for Petitioner, supra note 125, at 60 n.58.
293. Id. at 27.
294. Brief for Respondent at 22-23, Holland v. Florida, 130 S. Ct. 2549 (2010) (No. 095327) (arguing that "equitable tolling does not apply for attorney misconduct amounting to ineffective assistance of counsel"). In terms of the State's argument that AEDPA should not be subject to equitable tolling, the State asserted that equitable tolling is inconsistent with the text and structure of AEDPA because Congress already laid out specific instances of tolling within the statute itself.
295. Id. at 26-27. For the Court to extend the time beyond these instances, the State continued, would be inconsistent with the text of the statute.
296. Id. (noting that "[e]ven where equitable considerations strongly support[] a nonliteral reading of the statutory provisions regarding the time during which a claim could be asserted[,] this Court has refrained from altering the statutory structure that Congress enacted"). The State further asserted that application of equitable tolling would be at odds with the Congressional purpose of AEDPA: namely "the reduction of delays and abuses in federal habeas proceedings via the establishment of a detailed statute of limitations."
297. Id. at 23. Permitting equitable tolling, the State urged, would invite "side litigation ... over attorney misconduct [that] would significantly lengthen the habeas process via additional hearings, appeals, and certiorari petitions to this Court."
298. Id. at 30. The State also maintained that allowing delay in the habeas process would "damage[] the states' implementation of their criminal justice systems and creat[e] uncertainty as to the finality of criminal judgments."
299. Id. at 31. Therefore, the State concluded, AEDPA should not be subject to equitable tolling.
300. Id. at 23.
301. 501 U.S. 722 (1991).
302. Brief for Respondent, supra note 188, at 33 (citing Coleman, 501 U.S. at 756-57).
303. Id. at 34. As discussed in Part I.B.I supra, the only time the risk for attorney error will be imputed to the State is when the Constitution requires the State to provide a criminal defendant with counsel. In that situation, the State-and not the client-would be held responsible in the event that the attorney, which the State appointed, did not provide effective assistance of counsel to the criminal defendant client.
304. See generally Strickland v. Washington, 466 U.S. 668, 686 (1984). The Constitution, however, does not provide postconviction prisoners with the right to counsel, therefore, prisoners such as Holland must bear the risk of attorney error on their own, as per "well-settled principles of agency law."
305. Brief for Respondent, supra note 188, at 34 (quoting Coleman, 501 U.S. at 754).
306. Id. (quoting Coleman, 501 U.S. at 754). Holland rejoined in his reply brief that Coleman's analysis had nothing to do with the equitable tolling of AEDPA's limitations period and that AEDPA did not even exist when Coleman was decided.
307. See Petitioner's Reply Brief on the Merits at 9-10, Holland v. Florida, 130 S. Ct. 2549 (2010) (No. 09-5327). Holland argued that his case was not about a constitutional right to counsel, rather, it was about whether he was entitled to equitable tolling under the circumstances of his late habeas corpus filing.
308. Id. at 10.
309. Brief for Respondent, supra note 188, at 39.
310. Id. at 43.
311. 549 U.S. 327 (2007).
312. Id. at 336-37.
313. Brief for Respondent, supra note 188, at 45.
314. Id. at 43. In Petitioner's Reply Brief, Holland argued that there is a difference between an attorney's simple negligence in failing to file a petition and a situation in which an attorney ignores his client's requests or instructions. See Petitioner's Reply Brief,
315. supra note 192, at 11-14. Holland cited Roe v. Flores-Ortega, 528 U.S. 470 (2000), in which the Court held that a lawyer who disregards specific instructions from a client to file a notice of appeal "acts in a manner that is professionally unreasonable....[F]iling a notice of appeal is purely a ministerial task, and the failure to file reflects inattention to the defendant's wishes."
316. Id. at 477 (citations omitted). Holland thus argued that his circumstances were distinguishable from mere attorney negligence because Holland had repeatedly instructed his attorney to file his federal habeas petition on time.
317. See Petitioner's Reply Brief, supra note 192, at 13.
318. Brief for Respondent, supra note 188, at 44 (adding that "[t]his 'garden variety' negligence by an attorney does not provide grounds for equitable tolling") (citing Holland v. Florida, 539 F.3d 1334, 1339 (11th Cir. 2008)).
319. Id. at 46-50.
320. Id. at 46-47.
321. Id. at 47.
322. Id. at 49.
323. Id. at 45-46.
324. Id. at 46 (internal quotation marks omitted). The State, however, did not provide any explanation as to what actions, in its opinion, Holland could have taken that would have fulfilled the diligence requirement.
325. Holland v. Florida, 130 S. Ct. 2549, 2554 (2010). Justice Breyer delivered the opinion of the court, in which Chief Justice Roberts, and Justices Stevens, Kennedy, Ginsburg, and Sotomayor joined. Justice Alito concurred in the judgment and filed a concurring opinion. Justice Scalia filed a dissenting opinion, in which Justice Thomas joined as to all but Part I.
326. Id.
327. Id.
328. Id. at 2565.
329. Id.
330. Id. at 2560 (citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990)).
331. Id. ('"[E]quitable principles' have traditionally 'governed' the substantive law of habeas corpus'" (quoting Munaf v. Geren, 553 U.S. 674, 693 (2008))).
332. Id. at 2562.
333. Id. As this Comment is focused on attorney default rather than the general question of whether AEDPA's limitations period should be subject to equitable tolling, this Comment briefly discusses the Court's reasoning behind its decision in this regard. For further discussion of this issue,
334. see id. at 2560-63. See also Brief for the Petitioner, supra note 125, at 36-45;
335. Brief for the Respondent, supra note 188, at 22-31.
336. See generally Bellamy, supra note 42, at 54 (contending that equitable tolling should be applied to AEDPA's limitations period in order to avoid unjust outcomes);
337. Traum, supra note 38, at 599 (arguing that equitable tolling is necessary to ensure prisoners are not unfairly deprived of access to habeas relief).
338. Holland, 130 S. Ct. at 2564-65.
339. Id. at 2562 ("In this case, the 'extraordinary circumstances' at issue involve an attorney's failure to satisfy professional standards of care.").
340. Id. at 2565. Specifically, the Court commented that Collins's behavior violated ethical rules that require attorneys to perform "reasonably competent legal work, to communicate with their clients, [and] to keep their clients informed of key developments in their cases."
341. Id. at 2564.
342. Id. at 2565 (noting that his attorney's failures extinguished "his single opportunity for federal habeas review of the lawfulness of his imprisonment and of his death sentence").
343. Id. at 2563 (noting that "this case asks how equity should be applied").
344. Id. (quoting Coleman v. Thompson, 501 U.S. 722, 752-53 (1991)). This notion is consistent with the fundamental principles of agency law.
345. Id. ("[W]e have followed a tradition in which courts of equity have sought to 'relieve hardships which, from time to time, arise from a hard and fast adherence' to more absolute legal rules . . . .") (quoting Hazel-Atlas Glass Co, v. Hartford-Empire Co, 322 U.S. 238, 248 (1944)).
346. Id. In supporting its holding, the Court finally decided the circuit split by citing the line of circuit court cases that held attorney misconduct could warrant equitable tolling.
347. See id. at 2563-64 (noting that "[s]everal lower courts have specifically held that unprofessional attorney conduct may, in certain circumstances, prove 'egregious' and can be 'extraordinary'"). The Court also distinguished its prior ruling in Coleman simply by stating that "Coleman was a 'case about federalism'" because its inquiry turned on whether federal courts may excuse a litigant's failure to comply with a state court's procedural rules.
348. Id. at 2563. The equitable tolling question in this case, the Court continued, asked only whether federal courts may excuse a litigant's failure to comply with federal procedural rules-an inquiry that does not implicate federalism concerns.
349. Id.
350. Id. at 2564. By excluding negligence from circumstances that may warrant equitable tolling, the Court avoided any contradiction with its ruling in Lawrence, in which it held that attorney negligence did not warrant equitable tolling in Lawrence's case, but did not evaluate any issues of attorney misconduct.
351. See Lawrence v. Florida, 549 U.S. 327, 336-37 (2007).
352. Holland, 130 S. Ct. at 2564.
353. Id.
354. Id. Here, the Court referred to the Eleventh Circuit's test to determine where to draw the line between attorney negligence or misconduct, which stated that "attorney negligence that is 'grossly negligent' can never warrant equitable tolling absent 'bad faith, dishonesty, divided loyally, mental impairment or so forth on the lawyer's part."
355. Id. at 2562-63 (quoting Holland v. Florida, 539 F.3d 1334, 1339 (11th Cir. 2008) (per curiam)).
356. Id. at 2565.
357. Id.
358. Id. (noting that "the very day Holland discovered that his AEDPA clock had expired due to Collins' failings, Holland prepared his own habeas petition pro se and promptly filed it with the District Court").
359. See Holland v. Florida, No. 07-13366, 2010 U.S. App. LEXIS 16058, at *1 (11th Cir. Aug. 3, 2010) (ordering the District Court to hold an evidentiary hearing if necessary).
360. Holland, 130 S. Ct. at 2566 (Alito, J., concurring) (noting that Holland "alleged certain facts that go well beyond any form of attorney negligence").
361. Id. ("Although I agree that the Court of Appeals applied the wrong standard, I think that the majority does not do enough to explain the right standard.").
362. Id.
363. Id. at 2567 (arguing that the question of equitable tolling should not "turn on the highly artificial distinction between gross and ordinary negligence").
364. Id. at 2566 (noting that the Court's prior cases of procedural default make the law "abundantly clear that attorney negligence is not an extraordinary circumstance warranting equitable tolling").
365. Id. at 2566-67 (explaining that "[a]ttorney ignorance or inadvertence is not 'cause' [for excusing a procedural default] because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner 'must bear the risk of attorney error'" (quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991))).
366. Id. at 2567.
367. Id. at 2568.
368. Id. ("[W]hen an 'agent acts in a manner completely adverse to the principal's interests,' the 'principal is not charged with [the] agent's misdeeds.'" (alteration in original) (quoting Baldayaque v. United States, 338 F.3d 145, 154 (2d Cir. 2003) (Jacobs, J., concurring))).
369. Id. (emphasizing that petitioners should not be held accountable for an attorney's misconduct especially when "the litigant's reasonable efforts to terminate the attorney's representation have been thwarted by forces wholly beyond the petitioner's control").
370. Id.
371. Id. at 2569 (Scalia, J., dissenting).
372. Id. at 2570. For further discussion of the dissent's interpretation of AEDPA's limitations period, which Justice Thomas did not join,
373. see id. at 2569-71.
374. Id. at 2571 ("Because the attorney is the litigant's agent, the attorney's acts (or failures to act) within the scope of the representation are treated as those of his client....").
375. Id.
376. Id.
377. Id. at 2571 n.4.
378. Id. at 2571 (citing Coleman v. Thompson, 501 U.S. 722, 752-54 (1991)).
379. Id. at 2572.
380. Id. The defaulting attorney in Lawrence had made this exact mistake in calculating AEDPA's limitations period.
381. See Lawrence v. Florida, 549 U.S. 327, 330-36 (2007). In Lawrence, the Court first noted that the text of AEDPA's limitations period provided for statutory tolling only while state courts reviewed a habeas petition.
382. Id. at 332. The Supreme Court, however, "is not a part of a State's post-conviction procedures" and therefore section 2244(d)(2) of AEDPA's limitations period is not tolled during the pendency of a petition for certiorari. Id. (internal quotation marks omitted). While Collins did not seem to be aware of the rule in Lawrence, Holland apparently was, and brought this issue to Collins's attention in one of the many letters he wrote to his attorney.
383. See Holland, 130 S. Ct. at 2557 ("Dear Mr. Bradley M. Collins: .... It's my understanding that the AEDPA time limitations is not tolled during discretionary appellate reviews, such as certiorari applications resulting from denial of state post conviction proceedings.").
384. Holland, 130 S. Ct. at 2572 (Scalia, J., dissenting).
385. Id. at 2573. This aspect of the dissent's analysis is on par with the Seventh Circuit, which before Holland had consistently held that diligent prisoners could always file their own pro se petitions in federal court if they were worried that their attorneys were going to miss the deadline.
386. See, e.g., Powell v. Davis, 415 F.3d 722, 728 (7th Cir. 2005) (holding that an attorney's misconduct in abandoning the prisoner's case for over a year did not actually prevent the prisoner from filing a timely petition);
387. Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir. 2003) (explaining that attorney misconduct does not prevent a prisoner from filing his own pro se habeas petition because "petitioners bear ultimate responsibility for their filings, even if that means preparing duplicative petitions").
388. Holland, 130 S. Ct. at 2573 (Scalia, J., dissenting).
389. Id. at 2576.
390. Id.
391. Id. at 2575.
392. Id. at 2571 n.5.
393. Id. at 2574. Justice Scalia then proceeded to attack the majority's reliance on attorney ethics rules in his usual rhetorical fashion: "The only thing the Court offers that approaches substantive instruction is its implicit approval of 'fundamental canons of professional responsibility,' articulated by an ad hoc group of legal-ethicist amid consisting mainly of professors of that least analytically rigorous and hence most subjective of lawschool subjects, legal ethics."
394. Id. at 2575.
395. See, e.g., Bellamy, supra note 42, at 54 (supporting the use of equitable tolling in AEDPA litigation in order to avoid a miscarriage of justice);
396. Stevenson, supra note 24, at 360 (arguing that the denial of habeas corpus review on procedural grounds, such as the failure to file before the limitations period, is unfair);
397. Traum, supra note 38, at 599 ("[E]quitable tolling is essential to ensuring that the Court, in applying Section 2244(d) [AEDPA's limitations period], does not unfairly deprive prisoners of access to the writ.").
398. Holland, 130 S. Ct. at 2564.
399. Id. at 2562 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005));
400. see also supra Part I.B.
401. Holland, 130 S. Ct. at 2562.
402. Id. at 2564 (noting that an attorney's '"garden variety claim of excusable neglect'... does not warrant equitable tolling" (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990))).
403. Id. at 2563 (noting that "professional misconduct that . . . amount[s] to egregious behavior [may] create an extraordinary circumstance that warrants equitable tolling").
404. See, e.g., Lawrence v. Florida, 549 U.S. 327, 336-37 (2007) (declining to allow equitable tolling for attorney mistake because it would then "essentially equitably toll limitations periods for every person whose attorney missed a deadline");
405. Irwin, 498 U.S. at 96 (describing an attorney's failure to submit a timely employment discrimination claim as a "garden variety claim" of an attorney's excusable neglect);
406. see also Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir. 2003) (noting that "attorney negligence is not extraordinary").
407. Every jurisdiction maintains a disciplinary system that regulates lawyers according to codified ethical rules, and a license to practice law is conditioned upon compliance with the jurisdiction's standards of professional conduct.
408. See Curtis & Resnik, supra note 26, at 1615-16.
409. Strickland v. Washington, 466 U.S. 668, 686 (1984) (holding that ineffective criminal defense representation undermines the "proper functioning of the adversarial process").
410. See Curtis & Resnik, supra note 26, at 1628 (lamenting that "[p]oor provision of criminal defense services is a grievous injury not only for clients but for the legal profession and the public");
411. see also Stevenson, supra note 24, at 342 ("If the administration of criminal justice is perceived to be unfair, corrupt, biased, and error-plagued, it is not seen as a corrective or necessary component of public safety.").
412. GIDEON'S BROKEN PROMISE, supra note 26, at 4. The Third Circuit's jurisprudence in AEDPA litigation reflected similar sentiments prior to Holland by affording considerable weight to the fact that there may be a death sentence on the line when deciding whether to bind a habeas petitioner by his attorney's error.
413. See Fahy v. Horn, 240 F.3d 239, 245 (3d Cir. 2001) (recognizing that in capital cases, "the consequences of error are terminal, and we therefore pay particular attention to whether principles of 'equity would make the rigid application of a limitation period unfair'")
414. (quoting Miller v. N.J. State Dep't of Corr, 145 F.3d 616, 618 (1998)).
415. Holland v. Florida, 539 F.3d 1334,1339 (2008) (per curiam).
416. Holland v. Florida, 130 S. Ct. 2549, 2564 (2010).
417. Id. at 2574 (Scalia, J., dissenting).
418. Id. at 2566 (Alito, J., concurring).
419. Id. at 2564-65 (majority opinion). Justice Scalia also acknowledged this point in his dissent, stating that "[t]he only thing the Court offers that approaches substantive instruction is its implicit approval of 'fundamental canons of professional responsibility.'"
420. Id. at 2574 (Scalia, J., dissenting).
421. Id. at 2562 (majority opinion).
422. Id. at 2564. See also MODEL RULES OF PROF'L CONDUCT R. 1.3 (2003) (requiring a lawyer to "act with reasonable diligence and promptness in representing a client");
423. Id. R. 1.4(a)(3) (requiring a lawyer to "keep the client reasonably informed about the status of the matter'').
424. 322 F.3d 965 (7th Cir. 2003).
425. 264 F.3d 310 (3d Cir. 2001).
426. See Modrowski, 322 F.3d at 966. In Modrowski, the Seventh Circuit noted that in addition to the attorney filing the habeas petition one day late, "[t]he petition was unsigned, missing the filing fee and exhibits, and had blank paragraphs where many of Modrowski's constitutional claims should have been."
427. Id. at 966. In Nara, the Third Circuit noted that the prisoner's allegations that his attorney had "effectively abandoned" him halfway through the litigation when she failed to move his case forward, if found to be true in a factual hearing upon remand, would be enough for equitable tolling. Nara, 264 F.3d at 320.
428. Nara, 264 F.3d at 320.
429. Modrowski, 322 F.3d at 966 (affirming the district court's dismissal of Modrowski's petition as untimely because attorney negligence does not warrant equitable tolling).
430. Upon remand, the Magistrate Judge found that equitable tolling should apply under Nara's circumstances. Nara v. Frank, Civil Action No. 99-5, 2004 U.S. Dist. LEXIS 6508, at *1 (W.D. Pa. Mar. 10,2004), aff'd, 488 F.3d 187 (3d Cir. 2007).
431. Modrowski, 322 F.3d at 968.
432. Nara v. Frank, 488 F.3d 187, 189 (3d Cir. 2007) (affirming the district court's order directing the Commonwealth to release Nara if it did not retry him within 120 days).
433. That said, one could question how an attorney's failure to file a petition on time and thereby extinguishing a client's rights to federal habeas corpus review could ever be "reasonably competent" legal representation in any sense of the term.
434. See supra note 221 and accompanying text.
435. See supra note 222 and accompanying text.
436. See supra Part I.A.2.
437. Holland v. Florida, 130 S. Ct. 2549, 2565 (2010) (internal citations omitted).
438. See supra Part I.B.2.
439. Holland, 130 S. Ct. at 2565. While the Court addressed the issue of Holland's due diligence, it did not state whether it was considering the circumstances of his imprisonment into its analysis.
440. Id. Justice Alito did not address the due diligence part of the equitable tolling test in his concurring opinion.
441. Id. at 2565-68 (Alito, J., concurring). Justice Scalia did not think that Holland had shown the requisite standard at all.
442. Id. at 2576 (Scalia, J., dissenting) (stating that Holland could have pursued other reasonable measures, such as seeking permission to proceed pro se and formally discharging his attorney, instead of requesting that his attorney be replaced, in order to free himself from his attorney's inadequate representation).
443. Justice Alito, however, noted in his concurring opinion that even Holland's efforts to proceed pro se "were successfully opposed by the State on the perverse ground that the petitioner failed to act through appointed counsel."
444. Id. at 2568 (Alito, J., concurring).
445. See Brief for Petitioner, supra note 125, at 59-60 (arguing that the due diligence requirement should be "construed in light of a habeas petitioner's confinement in prison and any special restrictions that incarceration might impose on such a person").
446. Holland, 130 S. Ct. at 2565 (noting that "Holland not only wrote his attorney numerous letters seeking crucial information and providing direction; he also repeatedly contacted the state courts [and] their clerks ...").
447. See supra text accompanying note 126.
448. See Roscoe C. Howard, Jr, The Defunding of the Post Conviction Defense Organizations as a Denial of the Right to Counsel, 98 W. VA. L. REV. 863, 902 (1996) (stating that habeas petitioners such as "[c]apital inmates almost uniformly are indigent") (internal citations omitted);
449. Stevenson, supra note 24, at 349 (describing that most habeas prisoners have "virtually no resources" with which to litigate in habeas proceedings).
450. See Holland, 130 S. Ct. at 2564 (noting that Holland's attorney had "failed to inform Holland in a timely manner about the crucial fact that the Florida Supreme Court had decided his case").
451. See Mello & Duffy, supra note 35, at 484 (noting that "many condemned inmates are prohibited from gaining physical access to the prison law library, which itself is often inadequate"). Even the Fifth Circuit once explained that prisoners cannot use law libraries adequately without the aid of trained law librarians or paralegals.
452. See Cruz v. Hauck, 627 F.2d 710, 720-21 (5th Cir. 1980) (stating that when determining if a prisoner has meaningful access to law libraries, "[i]t is not enough simply to say the books are there").
453. See Roy v. Lampert, 465 F.3d 964, 970, 975 (9th Cir. 2006) (holding that equitable tolling would be warranted when deficiencies in a prison library prevented a diligent pro se prisoner from learning about the limitations period). Holland also argued this point in his brief.
454. See Brief for Petitioner, supra note 125, at 21-22.
455. See, e.g., MICHAEL B. MUSHLIN, RIGHTS OF PRISONERS 17-18 (3d ed. 2002).
456. See also Wilkinson v. Austin, 545 U.S. 209, 209 (2005) (describing the increasing use of "Supermax" prisons as a form of incarceration that is extremely isolated and stating, "Opportunities for visitation are rare and are always conducted through glass walls. Inmates are deprived of almost any environmental or sensory stimuli and of almost all human contact").
457. See Brief for Petitioner at 11 n.25, Lawrence v. Florida, 549 U.S. 327 (2007) (No. 05-8820) (describing death row prisoner's lack of access to a computer). Cf. Brief for Petitioner, supra note 125, at 2 n.1 (describing a habeas petitioner's difficulties in contacting his attorney about the status of his case because death row inmates do not have access to computers).
458. See Holland, 130 S. Ct. at 2564-65 (referencing the Restatement of Agency);
459. Id. at 2566-68 (Alito, J., concurring).
460. As the RESTATEMENT OF AGENCY explains, "[t]he agent shall act on the principal's behalf and subject to the principal's control." RESTATEMENT (THIRD) OF AGENCY §1.01 (2006).
461. See also RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS §26 cmt. b (2000) (explaining that the attribution of an attorney's conduct to the client is appropriate because clients-as the parties involved in the case being litigated-are the only actors that can control the lawyer's actions in the matter at hand);
462. STEPHEN GILLERS, REGULATION OF LAWYERS: PROBLEMS OF LAW AND ETHICS 62 (2005). Before Holland, the Seventh Circuit applied this premise of agency law in its jurisprudence. For example, the Seventh Circuit once stated that, '"petitioners, whether in prison or not, must vigilantly oversee the actions of their attorneys.'"
463. Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir. 2003)
464. (quoting Johnson v. McCaughtry, 265 F.3d 559, 566 (7th Cir. 2001)).
465. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 26 cmt. b (2000).
466. Holland, 130 S. Ct. at 2567 (Alito, J., concurring) (explaining "the principal rationale for disallowing equitable tolling based on ordinary attorney miscalculation is that the error of an attorney is constructively attributable to the client and thus is not a circumstance beyond the litigant's control") (emphasis added).
467. See Hearings on S. 2216, supra note 35, at 198 (statement of Phylis Skloot Bamberger on behalf of the National Legal Aid and Defender Association) (explaining that "virtually all habeas petitioners are prisoners").
468. See MUSHLIN, supra note 299, at 17-18.
469. See supra notes 299-300 and accompanying text.
470. See Strickland v. Washington, 466 U.S. 668, 708 (1984) (Marshall, J., dissenting) ("It is an unfortunate but undeniable fact that a person of means, by selecting a lawyer and paying him enough to ensure he prepares thoroughly, usually can obtain better representation than that available to an indigent defendant, who must rely on appointed counsel, who, in turn, has limited time and resources to devote to a given case.");
471. see also Green, supra note 27, at 1176.
472. Holland, 130 S. Ct. at 2567 (Alito, J., concurring).
473. Id. at 2568 (explaining that Holland's allegations of his attorney's misconduct would "suffice to establish extraordinary circumstances beyond his control') (emphasis added).
474. See id. at 2567 (stating that an attorney's gross negligence does not establish an extraordinary circumstance);
475. see also Lawrence v. Florida, 549 U.S. 327, 336-37 (2007) (holding that attorney miscalculation of AEDPA's deadline does not warrant equitable tolling). Even before Holland, many of the circuit courts adopted similar reasoning.
476. See, e.g., Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001) (noting that attorney error does not create the extraordinary circumstances equitable tolling requires);
477. Harris v. Hutchinson, 209 F.3d 325, 331 (4th Cir. 2000) ("[A] mistake by a party's counsel in interpreting a statute of limitations does not present the extraordinary circumstance beyond the party's control where equity should step in....").
478. Holland, 130 S. Ct. at 2567 (Alito, J., concurring). In reference to these specific examples of attorney default, Justice Alito specifically emphasized that "the mere fact that a missed deadline involves 'gross negligence' on the part of counsel does not by itself establish an extraordinary circumstance."
479. Id.
480. Id. at 2564 (majority opinion) (noting that "Collins apparently did not do the research necessary to find out the proper filing date, despite Holland's letters that went so far as to identify the applicable legal rules").
481. See also Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir. 2003) ("Even if a prisoner diligently checks an attorney's references and disciplinary records, he still cannot prevent the attorney from bungling his case. Nonetheless, we hold the prisoner responsible for his attorney's bungling.") (emphasis added).
482. Holland, 130 S. Ct. at 2567 (Alito, J., concurring).
483. See Curtis & Resnik, supra note 26, at 1620 (demonstrating that clients have little or no ability to monitor criminal defense attorneys);
484. Green, supra note 27, at 1170 (explaining that many criminal defense attorneys do not keep clients reasonably informed or comply with clients' requests for information).
485. See, e.g., Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 91 (1990) (discussing an attorney's failure to timely file a client's civil discrimination complaint against the Veteran's Administration before the statute of limitations had run).
486. Holland, 130 S. Ct. at 2567 (Alito, J., concurring).
487. In civil legal malpractice actions, for example, a former client may sue the defendant attorney in tort or contract and must prove that the attorney either violated a duty of care or breached another fiduciary duty.
488. See RESTATEMENT (THIRD) OF AGENCY § 8.01 cmt. d (2006);
489. see also GILLERS, supra note 302, at 63. In criminal malpractice suits, however, the great majority of courts nationwide require the former client to prove his actual innocence or obtain exoneration before he can sue his defense attorney for malpractice.
490. See RONALD E. MALLEN & JEFFREY M. SMITH, 3 LEGAL MALPRACTICE § 27:13 (2010). Due to the procedural hurdles that guard the door to criminal malpractice actions, scholars and commentators have demonstrated that this remedy is largely unavailable to clients who may have been harmed by negligent representation.
491. Id. at § 27:2 (noting that statistics compiled by the American Bar Association's National Legal Malpractice Data Center show that claims against "criminal law practitioners account only for a small percentage of all [malpractice] claims");
492. Meredith J. Duncan, The (So-Called) Liability of Criminal Defense Attorneys: A System in Need of Reform, 2002 BYU L. REV. 1, 40;
493. Green, supra note 27, at 1195 ("It [is] almost impossible for aggrieved criminal defendants to prevail in a malpractice action, assuming they could find a lawyer to take their cases, because of doctrinal barriers."). Moreover, in some jurisdictions public defenders are given absolute immunity from malpractice liability under state law.
494. See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 53 cmt. d (2000);
495. see also GILLERS, supra note 302, at 649.
496. See RESTATEMENT (THIRD) OF AGENCY § 8.01 cmt. d (2006).
497. See Meredith J. Duncan, Criminal Malpractice: A Lawyer's Holiday, 37 GA. L. REV. 1265-70 (2003). The requirement to prove actual innocence or obtain post-conviction relief is needed for the defendant to prove the causation element of a malpractice tort claim, that "but for his counsel's negligence, he would have been acquitted of the offense."
498. Id. at 1279.
499. See supra note 60 and accompanying text.
500. Strickland v. Washington, 466 U.S. 668,684-86 (1984).
501. Associate Justice Anthony M. Kennedy, Speech at the American Bar Association Annual Meeting (Aug. 9, 2003), available at http://www.supremecourt. gov/publicinfo/ speeches/viewspeeches.aspx?Filename=sp-08-09-03.html.
502. See supra notes 26-28 and accompanying text.
503. See supra notes 26-28 and accompanying text.
504. See supra notes 23-30 and accompanying text.
505. See supra Part I.A. 1.
506. See supra note 41 and accompanying text.
507. See supra Part III.B.
508. Coleman v. Thompson, 501 U.S. 722, 756-57 (1991).
509. See Lawrence v. Florida, 549 U.S. 327,336 (2007).
510. See supra Part III.A.2.
511. See supra notes 54-56 and accompanying text.
512. See Dang v. Sisto, No. 08-16970, 2010 U.S. App. LEXIS 16377, at *2 (9th Cir. Aug. 5, 2010) (mem.) (declining to apply equitable tolling to AEPDA's limitations period in a case of attorney default because the prisoner "did not carry his burden of showing that he was diligent during the period after he had his case file in hand") (emphasis added);
513. see also Pafe v. Holder, No. 09-3466, 2010 U.S. App. LEXIS 17013, at *6 (8th Cir. Aug. 11, 2010). In Pafe, the court referred to Holland's example that "the very day that Holland discovered that his AEDPA clock had expired due to [his attorney's] failings, Holland prepared his own habeas petition pro se and promptly filed it with the District Court."
514. Id.
515. (quoting Holland v. Florida, 130 S. Ct. 2549, 2565 (2010)).
516. In contrast, the Pafe court continued, "Pafe . . . waited nearly three years before hiring new attorneys to replace each of her ineffective ones and did not file her motion to reopen until over five years after it was due. Accordingly, Pafe has not shown even 'reasonable diligence,' and her petition for review is denied."
517. Id.
518. See also Roy v. Lampert, 465 F.3d 964, 971 (9th Cir. 2006) (holding that "the person seeking equitable tolling [must demonstrate] reasonable diligence in attempting to file . . . after the extraordinary circumstances began" (emphasis added) (internal citations omitted)).
519. Holland v. Florida, 130 S. Ct. 2549, 2568 (2010) (Alito, J., concurring) (describing an attorney's "ordinary" as opposed to "gross" negligence).
520. See Curtis & Resnik, supra note 26, at 1615.
521. See Holland, 130 S. Ct. at 2564-65;
522. see also supra note 85 and accompanying text.
523. Taylor v. Illinois, 484 U.S. 400,433 (1988) (Brennan, J., dissenting).
524. See supra note 318 and accompanying text.
525. See Hearings on S. 623, supra note 41, at 2 (statement of Sen. Orrin G. Hatch) (arguing that reform of the habeas adjudication process must stop prisoners from filing spurious habeas corpus petitions in federal court);
526. see also supra notes 43-47 and accompanying text.
527. See Stevenson, supra note 24, at 360-61;
528. see also Habeas Reform: The Streamlined Procedures Act: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 45-46 (2005) (statement of Professor Eric M. Freedman, Hofstra Law School) (arguing that both speed and accuracy of habeas proceedings are impaired by litigation over procedural issues that do not address the merits of the claim).
529. See Stevenson, supra note 24, at 360-61. The fact that virtually every circuit court of appeals and the Supreme Court have heard multiple cases regarding AEDPA and attorney default, which have nothing to do with the merits of the prisoners' habeas claims, is evidence of this point. See supra note 82 and accompanying text.