After some time off, I have decided to turn the blogging machine back on. Got a bit of a backlog that I am going to try to churn out over the next few days.
Starting with a published opinion last week from the Second Circuit. The court rejected a claim of equitable tolling of the statute of limitations based on petitioner's difficult in obtaining an affirmation from his trial attorney to support an ineffectiveness claim. There was a dissent, from Parker, who believed that the circumstances did justify equitable tolling. Here are the details with some analysis afterwards:
Jenkins v. Green, 09-3623-pr
- Affirming Denial of Habeas (opinion here)
- Majority Opinion (Lynch); Dissent (Parker)
- Argued: 04/15/10; Decided: December 23, 2010
- Panel: Parker, Livinston, Lynch
- Lower Court Info: 06-CV-7171, 646 F.Supp.2d 615 (SDNY 2009) (RWS)
- Issues: whether time limit should be equitably tolled based on difficulty petitioner faced in obtaining affidavit from trial counsel
ANALYSIS: Really interesting case with a strong dissent. In New York, the 440.10 statute requires that a motion under the section be supported by affidavits. In my experience, New York courts are more than happy to deny motions where the defendant fails to provide the required affidavits. The crazy part is that this happens in cases where the motion is claiming ineffective assistance of counsel when the missing affidavit is one from the offending trial attorney. Put another way, to allege ineffectiveness, the New York statutes basically require a defendant to get the attorney against whom the claim is being brought to provide sworn facts to help establish it. Anybody see the logical problem with that? Obviously, I don't think this is a logically sound rule; it makes no sense when applied to an IAC claim.
In Jenkins case, he sought an affidavit from the attorney for a loooong period of time before eventually receiving it. The interesting part is that, unlike most ineffectiveness claims, the attorney affidavit actually supported Jenkins' position. Nevertheless, the 440.10 motion was denied. And the long waiting period rendered his habeas petition untimely.
He asked that the limitations period be equitably tolled since it seemed quite a bit unfair to hold that waiting period against him. The majority rejected the claim, stating that the affidavit requirement was not an "inflexible" rule. In fact, the Court of Appeals has stated that a defendant does not need to get one so long as he provides the reason why he failed to get it.*
*This whole thing is a bit absurd in my mind. Why should a defendant challenging an attorney's deficient performance have to explain why he failed to get an affidavit from the attorney whose performance he is criticizing? It's self-evident -- 99 times out of 100 the attorney does not want to do anything to assist a defendant in showing that he or she was ineffective. It's kind of human nature.
The major problem with this reasoning, as the dissent points out, is that the lower courts don't always follow this rule. In fact, they often reject motions precisely on the ground that no affidavit was provided. At the very least, the law is confusing. For that reason, the dissent argues that courts should use its equitable powers in the appropriate situation when the delay was a result of a defendant seeking an affidavit from his attorney. The dissent states it really nicely here:
Unsympathetic to Jenkins's petition, the majority makes much of their view that New York state courts do not "inflexibly" require that defendants claiming ineffective assistance present a supporting affidavit from the challenged attorney. . . . The majority cites to cases where New York courts require either an attorney affidavit or an explanation for its absence, and suggest that in lieu of the affidavit, Jenkins should have supplied such an explanation in a sworn statement accompanying his affidavit. The fact that New York courts may not "inflexibly" require such an affidavit sidesteps the fact that some courts apparently do and some do not. My reading of the case law is that such an affidavit probably should be submitted. The majority believes that such an affidavit need not be submitted. If court of appeals judges can honestly disagree over this point of law it seems to me wrong for a court of equity to close the court to a pro se litigant who happened to find himself on the wrong side of this debate. This is especially so where the cost of his choice is an additional forty years of incarceration for a man who, as indicated below, may well have received constitutionally ineffective assistance of counsel. Where equity is the point of departure, this constellation of circumstances is, I believe, extraordinary.
As I said before, it's a strong dissent.
One other item of note is that the Second Circuit sidesteps the issue of what the standard of review should be for a district court's decision denying equitable tolling. The dissent concludes that the decision should be reviewed de novo since it was based on an incorrect interpretation of what the law required. However, it does not appear that the dissenting judge was suggesting that all equitable tolling determinations should be reviewed de novo, only the particular one in that case, which was based on the legal conclusion that the circumstances present in the case could never represent a ground for equitable tolling.