The opinion of the court was delivered by: Judge Graham
On January 18, 2006, the Magistrate Judge issued a Report and Recommendation pursuant to Rule 4 of the Rules Governing Section 2255 Cases in the United States District Courts recommending that the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. §2255 be dismissed as untimely. Petitioner has filed objections to the Magistrate Judge's Report and Recommendation. For the reasons that follow, petitioner's objections are SUSTAINED; respondent is DIRECTED to answer the petition in accordance with the provisions of Rule 5(a) of the Rules Governing Section 2255 Cases in the United States District Courts within twenty (20) days of the date of this order.
As noted by the Magistrate Judge, petitioner's conviction became final on September 14, 2004, ninety days after the United States Court of Appeals for the Sixth Circuit's June 16, 2004, dismissal of her appeal, when the time period expired to file a petition for a writ of certiorari to the United States Supreme Court. The statute of limitations therefore expired one year later, on September 14, 2005. The instant §2255 petition was not filed until January 11, 2006, nor signed until January 5, 2006.
Petitioner acknowledges that her §2255 petition is untimely; however, she argues that equitable tolling of the statute of limitations is appropriate because her attorney mislead her into believing that he would file a timely federal habeas corpus petition on her behalf. Some federal Courts of Appeals have held that equitable tolling of the statute of limitations may be appropriate based upon gross attorney malfeasance, so long as the petitioner was diligent in pursuing her claims.
See United States v. Martin, 408 F.3d 1089, 1095-96 (8th Cir. 2005)(defendant's reasonable reliance on attorney misrepresentations and "egregious attorney misconduct" warranted equitable tolling of the statute of limitations):
Ineffective assistance of counsel, where it is due to an attorney's negligence or mistake, has not generally been considered an extraordinary circumstance in this regard. Beery v. Ault, 312 F.3d 948, 951 (8th Cir.2002); see also Rouse v. Lee, 339 F.3d 238, 248-49 (noting that a majority of the circuits have held that basic attorney errors such as miscalculation of a filing deadline are generally insufficient to support equitable tolling). We have acknowledged, though, that serious attorney misconduct, as opposed to mere negligence, "may warrant equitable tolling." Beery, 312 F.3d at 952. Other circuits have also held that an attorney's misdeeds may equitably toll the statute of limitations. Spitsyn v. Moore, 345 F.3d 796, 798 (9th Cir.2003) (tolling state habeas petitioner's statute of limitations due to the "extraordinary circumstance" of egregious misconduct on the part of petitioner's attorney); Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir.2003) ("It is not inconsistent to say that attorney error normally will not constitute the extraordinary circumstances required to toll the AEDPA limitations period while acknowledging that at some point, an attorney's behavior may be so outrageous or so incompetent as to render it extraordinary."); United States v. Wynn, 292 F.3d 226, 230 (5th Cir.2002) (holding that petitioner's "allegation that he was deceived by his attorney into believing that a timely § 2255 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" if petitioner reasonably relied on the attorney's misrepresentations); Nara v. Frank, 264 F.3d 310, 320 (3d Cir.2001) (noting that claims of attorney misconduct may provide a basis for equitable tolling), overruled on other grounds by Carey v. Saffold, 536 U.S. 214, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002); cf. Rouse, 339 F.3d at 250 n. 14 (suggesting that equitable tolling may be appropriate where attorney conduct reaches the level of "utter abandonment"); but see Modrowski v. Mote, 322 F.3d 965, 968-69 (7th Cir.2003) (rejecting attorney misconduct as a basis for equitable tolling because such conduct is "attributable to the client").
Baldayaque and Spitsyn are particularly instructive. In Baldayaque, a federal prisoner sought § 2255 relief, and his wife specifically asked her husband's attorney to file a "2255." Thereafter, the attorney engaged in repeated misconduct. First, he told Baldayaque's wife that it was too late to file a § 2255 motion, when in truth there was over a year remaining on his statute of limitations. Then, when pressed by Baldayaque's wife about the status of his case, the attorney "assured her that he was 'just waiting for a court date,' " although he had apparently not filed anything at that time. Later, the attorney filed a motion to modify Baldayaque's sentence, but it was denied. Baldayaque was not notified about the motion or its denial; instead, the attorney informed his wife that there was nothing more they could do. Baldayaque later filed his own § 2255 motion, which the district court denied as untimely. The Second Circuit reversed, finding that Baldayaque's attorney's conduct-not filing a § 2255 motion despite a directive to do so, giving erroneous legal advice without performing even cursory research, and failing to communicate with his client-was "far enough outside the range of behavior that reasonably could be expected by a client that they may be considered 'extraordinary' " and a may provide a basis for tolling of the statute of limitations. Baldayaque, 338 F.3d at 152-53.
In Spitsyn, a state prisoner's mother hired a lawyer almost a full year before his habeas filing deadline. After months of inactivity, Spitsyn and his mother wrote to the attorney, but received no response. As the filing deadline approached, Spitsyn and his mother contacted the state bar association seeking assistance. Spitsyn also sent his attorney another letter asking for his file. The attorney did not respond to any of these letters before the filing deadline passed. Finally, after the deadline, the attorney sent a letter "expressing regret for not following through with the case and returning the Spitsyns' payment." Months later, the attorney returned Spitsyn's file. Spitsyn then filed a pro se habeas petition, which the district court dismissed as untimely. On appeal, the Ninth Circuit reversed, finding that "the misconduct of Spitsyn's attorney was sufficiently egregious to justify equitable tolling of the one-year limitations period under AEDPA." Spitsyn, 345 F.3d at 801.
Here, petitioner likewise alleges that her attorney lied to her, advised her that he would meet the deadline for filing her habeas corpus petition, and failed to communicate with her or to return her phone calls. Objections, at 3. Petitioner states that she did not learn that a §2255 petition had not been filed on her behalf until November 7, 2005, shortly after the District Court denied her motion to reduce sentence. Objections, at 4; See Doc. No. 88. In support of these allegations, petitioner has attached, inter alia, a letter she wrote her attorney dated August 4, 2005, inquiring as to the status of her §2255 petition. Exhibit 4 to Objections.
In view of all of the foregoing, petitioner's objections are SUSTAINED; respondent is DIRECTED to answer the petition in accordance with the provisions of Rule 5(a) of the Rules Governing Section 2255 Cases in the United States District Courts within twenty (20) days of the date of this order.
JAMES L. GRAHAM United States ...