Equitable Tolling of the § 2255 Deadline

Can equitable tolling save a late 2255 motion?

Yes, in limited cases. Equitable tolling lets a court pause (“toll”) the one-year deadline in 28 U.S.C. § 2255(f) if the prisoner pursued his rights diligently and an extraordinary circumstance prevented timely filing. Holland v. Florida, 560 U.S. 631 (2010), states that test, the courts of appeals apply it to § 2255 motions, and courts grant equitable tolling rarely.

Holland held that AEDPA’s one-year deadline for state prisoners’ habeas petitions is not jurisdictional. 560 U.S. at 645. The First Circuit has applied Holland, including that two-part test, to a § 2255 motion. Ramos-Martinez v. United States, 638 F.3d 315 (1st Cir. 2011). Other courts of appeals had already held that the § 2255 deadline can be equitably tolled. United States v. Martin, 408 F.3d 1089 (8th Cir. 2005); Baldayaque v. United States, 338 F.3d 145 (2d Cir. 2003).

Outcomes vary. A past result does not predict or guarantee the outcome of any other case.

What is the test for equitable tolling?

Holland put the test this way: 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. 560 U.S. at 649.

• Diligence means “reasonable diligence,” not “maximum feasible diligence.” Id. at 653. In Holland, the prisoner wrote his lawyer many letters, contacted the courts to get the lawyer removed, and filed his own petition the same day he learned the deadline had passed.
• An extraordinary circumstance must be something beyond ordinary mistakes. A lawyer’s simple miscalculation of the deadline is not enough. Id. at 651-52.

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.

Does attorney abandonment count?

It can. In Holland, the lawyer failed to file on time despite many letters, did not research the deadline, did not tell the client about a key court ruling in his case, and stopped communicating for years. The Court said that kind of conduct can be far more than “garden variety” neglect and can justify tolling. 560 U.S. at 651-53.

In Maples v. Thomas, 565 U.S. 266 (2012), the Court went further on abandonment. The prisoner’s lawyers left their firm without telling him, and he missed a deadline. The Court held that a client “cannot be charged with the acts or omissions of an attorney who has abandoned him.” Id. at 283. Maples was about excusing a missed deadline as “cause” for a procedural default, not about tolling the § 2255 clock. But courts look to it when a lawyer has truly walked away from a client.

What have courts accepted, and what have they rejected?

These are decisions we have read and confirmed. They are examples from other people’s cases, not predictions about yours.

Accepted, or sent back for a hearing

• A lawyer who lied about the deadline and kept the client’s files. The lawyer told the prisoner and his wife there was no one-year deadline for § 2255 motions, said he would file, and held on to documents the prisoner needed. The court held the prisoner was entitled to equitable tolling and sent the case back for a ruling on the merits. United States v. Martin, 408 F.3d 1089 (8th Cir. 2005).
• A lawyer hired to file a § 2255 motion who never filed it. The lawyer did no legal research, wrongly told the family it was too late to file when more than a year remained, and never spoke with the client. The court held that an attorney’s conduct, if sufficiently egregious, can be an extraordinary circumstance, and sent the case back. Baldayaque v. United States, 338 F.3d 145 (2d Cir. 2003).
• A lawyer who allegedly said the motion had been filed. The court said that being deceived by an attorney into believing a timely § 2255 motion had been filed could warrant tolling, and sent the case back for a hearing. United States v. Wynn, 292 F.3d 226 (5th Cir. 2002).
• Being misled by the court. One Justice wrote that if a prisoner is affirmatively misled by the court or the government, equitable tolling might well be appropriate. Pliler v. Ford, 542 U.S. 225, 235 (2004) (O’Connor, J., concurring).

Outcomes vary. A past result does not predict or guarantee the outcome of any other case.

Rejected

• A lawyer’s miscalculation of the deadline. “Attorney miscalculation is simply not sufficient to warrant equitable tolling.” Lawrence v. Florida, 549 U.S. 327, 336 (2007); Holland, 560 U.S. at 651-52.
• Representing yourself, or a poor prison law library. The Fifth Circuit has listed both as not enough. Wynn, 292 F.3d 226.
• The ordinary problems of being in prison. The Second Circuit noted that problems inherent in being incarcerated do not justify equitable tolling. Baldayaque, 338 F.3d 145.

Actual innocence works differently. It is not equitable tolling, but a separate exception: a strong showing of innocence can let a court hear a claim filed after the deadline. McQuiggin v. Perkins, 569 U.S. 383 (2013). See our page on actual innocence and the § 2255 deadline.

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. 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 repeated its earlier statement that it had “yet to identify a circumstance that justifies equitable tolling in the collateral relief context.” Poe v. United States, 468 F.3d 473 (7th Cir. 2006) (quoting Nolan v. United States, 358 F.3d 480, 484 (7th Cir. 2004)).

Common questions

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? Request a consultation to talk it through with Brandon Sample.