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November 24, 2009

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Aside from the legal issues resolved in Saunders, the case offers a harsh lesson about the consequences of permitting the habeas clock to wind down before tolling with a state post-conviction motion. Saunders, who was represented by counsel (not the one who handled the 2d Circuit appeal), did not stop the habeas clock until 4 days before the federal deadline, when he finally filed a CPL section 440.10 motion. Thereafter, counsel diligently, but unsuccessfully, pursued post-conviction relief in state court for more than one year. When counsel received notice from the Court of Appeals denying further review on May 27, 2003, he rushed to federal court the same day and filed the habeas petition. But, unbeknownst to counsel, the habeas buzzer had sounded on May 20 when the order denying leave to appeal had been entered in the Court of Appeals. With so little time remaining on the habeas clock, counsel did not even have breathing room to learn about the leave denial by ordinary mail.

There are 2 lessons here for habeas practitioners: 1) when your back is against a habeas deadline this severely, you will need to make arrangements for immediate telephone or electronic notification of any state court ruling that will restart the habeas clock, or call the clerk's office every day to check the case status; 2) whenever possible, you should avoid placing yourself in this tenuous position by filing state post-conviction motions as early as possible.

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