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9TH CIRCUIT DELIVERS TIMELY WARNING ON LIMITS OF EQUITABLE TOLLING

With law libraries closed across the federal prison system, and typewriters, forms, copiers and the like largely unavailable, more than one inmate is probably going to blow a court deadline. A quick handwritten request for more time is always a good idea, but some deadlines – for motions under 28 USC § 2255, notices of appeal, and F.R.Civ.P. 59(e) motions, for example – have deadlines that courts can only extend with great difficulty, if at all.

A quick answer that inmate late filers have often heard from law library dwellers is to ask for “equitable tolling.” To hear some jailhouse lawyers describe it, equitable tolling is the fairy dust of forgiveness spread by judges riding unicorns. In fact, it is a bit more complex than that.

Equitable tolling is a doctrine in which courts, as a matter of fairness, pretend the deadline moved to the day the party actually filed his or her document, rather than the day on which the statute or rules said it was due. Last week, the 9th Circuit reminded everyone of equitable tolling’s limits, and what a movant has to show in order to qualify for equitable tolling when it does apply.

Tony Smith’s state lawyer waited 66 days to send him the appeals court’s denial order. The one-year period for Tony to file his federal habeas claim began with the state court’s decision. Tony figured, however, that because his lawyer caused a 66-day delay in getting the order to him, it was only equitable that he take an extra 66 days (at the end of the one-year period he had to file a federal 28 USC § 2254 action), to make up for the 66-day delay caused by his lawyer’s laziness.

Sorry, Tony… that’s not what “equitable” means in this sense. The district court held that Tony’s 28 USC § 2254 filing – 66 days after the deadline – was late, and not entitled to equitable tolling. The 9th Circuit agreed.

To be eligible for equitable tolling, a movant has to demonstrate he has been pursuing his rights diligently, not only while an impediment to filing caused by an extraordinary circumstance (his lawyer’s laziness) existed, but before and after as well, up to the time of filing his claim in federal court. The court rejected the “stop-clock” approach, the idea that when a movant is impeded from filing his petition by extraordinary circumstances while the statutory time is still running, he may add the time during which he was impeded to extend the limitations period.

Instead, the movant must show he was reasonably diligent in using the time after impediment was removed. In Tony’s case, this would have been in the 10 months after he got his appeals decision from his attorney.

Only when an extraordinary circumstance prevented a movant who was acting with reasonable diligence from making a timely filing that equitable tolling may apply. There is no hard rule (which is a feature of equity, not a bug). Instead, the court will look closely at the facts of the case. Because Tony could not explain how he was not able to file in the remaining 10 months of the period, equitable tolling did not help him.

Smith v. Davis, 2020 U.S. App. LEXIS 8810 (9th Cir Mar 20, 2020)

– Thomas L. Root