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Equitable Tolling and Reliance on Precedent

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The Ninth Circuit today put some reasonable limits on the use of equitable tolling to extend the reach of its now-discredited precedent on late-filed federal habeas petitions.

State prisoners have one year to file their federal habeas petitions after their state direct appeals are denied, but the time is tolled during the pendency of any "properly filed" state-court collateral reviews.  Is a state collateral petition "properly filed" if it is untimely under state rules?  The Ninth said yes in Dictado v. Ducharme, 244 F.3d 724 (2001), effectively allowing every inmate to give himself extensions of time by filing untimely state petitions, extending his federal deadline by the length of time the state court takes to get around to dismissing.  The Supreme Court decided otherwise in Pace v. DiGuglielmo, 544 U.S. 408 (2005).

Do inmates get "equitable tolling" claiming they were relying on Dictado before its demise?  Up to a point. 
[6] However, in Townsend and Harris, equitable tolling was appropriate because the petitioners made a showing that they actually relied on a correct interpretation of the Dictado rule in delaying their federal petitions. See Townsend, 562 F.3d at 1206; Harris, 515 F.3d at 1053-54. Lakey does not set forth any facts suggesting similar reliance on our prior precedent. Instead, the notion that Lakey relied on Dictado is belied by the fact that he waited an additional 141 days after Pace was decided to file his federal petition. The petitioners in Townsend and Harris, on the other hand, filed their federal petitions either before or immediately after Pace went into effect. Townsend, 562 F.3d at 1206 (petitioner filed his federal petition before Court's decision in Pace); Harris, 515 F.3d at 1054 (federal petition filed just fourteen days after Pace). Lakey's 141-day delay in bringing his federal petition indicates that he did not diligently pursue his rights. See Holland, 130 S. Ct. at 2562.

[7] Moreover, even if we were to conclude that equitable tolling was appropriate for the time period that the Dictado rule was still in effect, the statute of limitations would only be tolled until the Court issued its decision in Pace. Once Pace was decided, Lakey had notice that Dictado had been overruled and that tolling would be unavailable if his state petition was denied as untimely. See Pace, 544 U.S. at 413-414 & n.3. Pace also explicitly advised state prisoners, such as Lakey, to file a protective federal petition to avoid a possible timeliness bar. Id. at 416. Despite this warning, Lakey waited nearly fivemonths before filing his federal claims. Thus, even giving Lakey the benefit of equitable tolling for the time period prior to the Court's decision in Pace, Lakey's subsequent 141-day delay rendered his federal petition untimely by at least 128 days.

The case is Lakey v. Hickman, No. 09-15940.  The opinion is by Judge Wallace, joined by Judge Thomas and Senior District Judge Richard Mills from Illinois, sitting by designation.

3 Comments

Funny that in the Ninth criminals can rely on incorrect precedent (at least a certain extent), but the police cannot.

Didn't the Supreme Court hold, in Gonzalez v Crosby, that a change in the construction of the habeas statue of limitations is not an "extraordinary circumstance" justifying equitable relief?

After Gonzalez, how can anyone possibly believe that the judicial change from Dictado to Pace is an "extraordinary circumstance" that warrants equitable tolling?

I guess you have to be a Ninth Circuit judge to issue three separate opinions --- Harris, Townsend, and now Lakey --- that purport to apply a rule that is contrary to Gonzalez.

At least Lakey got the result right.

Gonzalez was in a different context, Rule 60(b), but it does provide a strong analogy.

Judge Wallace, I suspect, might agree that the earlier Ninth Circuit cases were wrongly decided, but only the en banc court can overrule them. There is no need to here, as they are distinguishable.

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