Before I get to the decision, I just wanted to clarify something: I have two categories of habeas victories at the appellate level. Actually, it's more like a general designation and then a more specific subset within that larger designation. A habeas win is the more general designation. It includes all types of habeas victories in the appellate court -- (1) an affirmance of a grant of habeas; (2) a reversal of a denial of habeas with the appellate court ordering a grant of habeas; and (3) the more generalized, catch-all situation where the court vacates a habeas denial and remands for further proceedings. Within the general designation of a habeas "win," there is the specific subset of a habeas grant -- numbers (1) and (2) above. That, obviously, is a bigger deal. If there is a win that falls in that specific subset, I call it a "habeas grant." If there is a victory that falls into category (3), I describe it as a "habeas win."
With that out of the way, yesterday there was a "habeas win" out of the Second Circuit. In a per curiam opinion in Dillon v. Conway, the Second Circuit vacated a lower court decision dismissing a habeas petition as untimely, concluding that the petitioner had established equitable circumstances to justify the filing of an untimely petition. It's a short, but sweet decision.
And now here's something funny (or maybe just a tiny bit comical). I wrote that initial paragraph yesterday. I am not sure exactly what motivated me to do it. I think I just felt that I may have been using the different terms without really explaining what I meant.
Then, today, the Law Journal had an article about the decision with the following headline: "Habeas Petition is Granted Despite Lawyer's Missed Deadline." (emphasis mine)
Funny, right? It's obviously not a habeas grant. But it is a habeas win. Now I am very happy I took the time yesterday to explain the difference.
Now, let me talk about the actual decision. First, the details:
Dillon v. Conway, 08-4030-pr
- Vacating Denial of Habeas
- Argued: 4/6/1; Decided 4/25/11; Per Curiam Opinion
- Panel: Winter, Cabranes, Lohier
- Lower Ct. Info: 07-CV-10728, 2008 WL 2971986 (SDNY Aug. 15, 2008) (GBD) (DFE)
- In Circuit: Cir. Ct. COA
- Issue: whether appellant was entitled to equitable tolling of the one-year statute of limitations period
ANALYSIS: As the MJ stated in his R&R, this case concerned a "'heartbreaking'" series of events that led up to petitioner's petition being filed one day late. I won't go through all of it here, but suffice it to say that petitioner did everything that he could to ensure that his petition was timely filed. Unfortunately, his attorney dropped the ball.
What it came down to is this: petitioner's attorney miscalculated the day on which the petition should be filed. He believed that they had until November 30, 2007, to file the petition. Petitioner and his wife essentially begged and pleaded his attorney not to wait until that day to file the petition, but to do it earlier. The attorney assured petitioner and his wife that he would do that. Instead, the attorney waited until the last day and filed it one day late.
The Circuit considered this a "close case," but believed that these facts justified equitable tolling of the statute of limitations under the recent Supreme Court decision of Holland v. Florida. The court stated that petitioner had been diligent in pursuing his rights, the first requirement of Holland. It further concluded that these facts represented an extraordinary circumstance justifying tolling. The court stated:
Although miscalculating a deadline is the sort of garden variety attorney error that cannot on its own rise to the level of extraordinary circumstances, . . . Dillon’s case involves more than a simple miscalculation. [His attorney] in effect admitted affirmatively and knowingly misleading Dillon by promising him that he would file the petition before November 30, 2007. . . . [His attorney] breached that promise when he failed to follow his client’s instruction, with disastrous consequences that Dillon could neither have foreseen nor prevented.
Some quick notes: First, I always wonder what the percentage is of Circuit Court COA's that eventually lead to a "habeas win." Does the court become more invested in a case when it grants a COA? I am just not sure what the numbers are. Could be a good research project.
Second, according to my research (and memory), I believe that this is the first published opinion in a habeas case in which Lohier took part. Pretty good start.