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“equitable tolling” is when a judge pauses the one-year deadline out of fairness. You must show two things: you kept pursuing your case diligently, and something extraordinary outside your control stopped you from filing on time. Courts grant it rarely, so never plan around it.
The Supreme Court held that AEDPA’s one-year deadline for state prisoners’ habeas petitions is not jurisdictional and can be equitably tolled. Holland v. Florida, 560 U.S. 631, 645 (2010). Federal appeals courts apply the same rule to the § 2255 deadline.
Outcomes vary. A past result does not predict or guarantee the outcome of any other case.
What is equitable tolling?
Black’s Law Dictionary (10th ed.) defines equitable tolling as, “A court’s discretionary extension of a legal deadline as a result of extraordinary circumstances that prevented one from complying despite reasonable diligence throughout the period before the deadline passed.”
The Supreme Court’s test is that a person is entitled to equitable tolling only if he shows “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way” and prevented timely filing. Holland, 560 U.S. at 649.
Whether you qualify depends on the facts. The court may hold an evidentiary hearing — a mini-trial with witnesses — to decide. Courts set the bar high on both parts of the test.
What counts as an extraordinary circumstance?
It has to be truly out of the ordinary. Examples courts have considered include:
- A lawyer’s serious misconduct, such as abandoning the client or ignoring repeated requests to file. Holland, 560 U.S. at 651-53.
- Interference by the court or the government with a timely filing. See Pliler v. Ford, 542 U.S. 225 (2004)(O’Connor, J., concurring).
- Reasonable reliance on then-binding circuit precedent. Sherwood v. Prelesnik, 579 F.3d 581 (6th Cir. 2009).
- In some circuits, serious mental illness that actually prevented the person from filing.
Many things are not enough. A “garden variety claim of excusable neglect,” such as a lawyer simply miscalculating the deadline, does not qualify. Holland, 560 U.S. at 651-52. Not knowing the law, relying on a jailhouse lawyer, and the mere fact of being in prison usually do not qualify either. United States v. Wynn, 292 F.3d 226 (5th Cir. 2002).
Actual innocence works differently. It is not equitable tolling, but a separate exception that can let a court hear a late claim. See actual innocence and the § 2255 deadline; McQuiggin v. Perkins, 569 U.S. 383 (2013).
Why does diligence matter so much?
Even with an extraordinary circumstance, a court will not toll the deadline if you did not act diligently. As one court put it, “[i]f the person seeking equitable tolling has not exercised reasonable diligence in attempting to file after the extraordinary circumstances began, the link of causation between the extraordinary circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not prevent timely filing.” Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000).
Once the obstacle is gone, file as fast as you can. The Ninth Circuit once suggested about thirty days after the roadblock was removed would have been enough. Guillory v. Roe, 329 F.3d 1015, 1018, n. 2 (9th Cir. 2003). Keep records — letters, grievances, mail logs — showing everything you did to try to file.
Should you count on equitable tolling?
No. It exists, but it is very hard to get. Always aim to file within the year. In 2006 the Seventh Circuit said it had “yet to identify a circumstance that justifies equitable tolling in the collateral relief context.” Poe v. United States, 468 F.3d 473, 476 (7th Cir. 2006).
Common questions
What is equitable tolling?
It is a judge’s decision, based on fairness, to extend a deadline because something extraordinary prevented you from meeting it even though you were trying.
Does equitable tolling apply to section 2255 motions?
Yes, in limited cases. You must show that you pursued your rights diligently and that an extraordinary circumstance stood in your way. Holland v. Florida, 560 U.S. 631, 649 (2010).
What are some examples of extraordinary circumstances?
Interference by a judge or the government with your attempt to file, or serious misconduct by your lawyer, such as abandoning you. Ordinary lawyer mistakes — “excusable neglect” — are not enough.
What is reasonable diligence?
It means you kept trying to protect your rights the whole time — writing your lawyer, asking the court for records, and filing as soon as you could. It does not require superhuman effort, but it does require steady, documented effort.
I missed the one-year deadline but still want to file. Can I?
Possibly, if an extraordinary circumstance prevented you from filing on time and you stayed diligent, or if you have strong new evidence of innocence. Every month counts. Book a consultation with Brandon Sample to talk through whether any exception might apply.
Related pages
You Must be “In Custody” to File a Section 2255 Motion
Section 2255 Motions: The Statute of Limitations
Actual Innocence Can Overcome the Section 2255 Statute of Limitations
Section 2255(f)(3): A Newly Recognized Right Restarts the One-Year Clock
Section 2255(f)(4): Newly Discovered Evidence Restarts the One-Year Clock
Section 2255 Exhaustion Issues
Questions about your case? Book a consultation to talk it through with Brandon Sample.