Equitable Tolling Leads to Remand for Habeas Petitioner

Fleming v. Evans, --- F.3d ----, 2007 WL 970163(10th Cir. April 3, 2007)

Pro se § 2254 petitioner successfully obtains a reversal of district court denial of his petition as untimely, and the 10th remands to the district court for an evidentiary hearing on whether P is entitled to equitable tolling of the 1 year time period under AEDPA for filing.

P had pleaded guilty in state court to count III before he went to trial and was convicted on count II. He did not appeal his guilty plea on count III or move to withdraw it, and the conviction for that count became final well before the conviction on count II.
He alleged ineffective assistance of state counsel, and alleged counsel failed to move to withdraw his guilty plea, as instructed, within the time limit allowed by state law. P did not discover his attorney’s failure until approximately a year and a half after he had been sentenced on his guilty plea. He argued that the 1 year AEDPA statute of limitations should be equitably tolled and started from the period he could be deemed to have reasonably discovered his attorney’s error. Still, he would be late in his federal filing.

P alleged that his federal habeas counsel lied to him regarding having filed his federal habeas within the year after he discovered state counsel’s ineffectiveness. Federal counsel failed to timely file, and P filed his own 2254. The 10th recognized that “egregious attorney misconduct” may constitute “extraordinary circumstances” that justify equitable tolling, and that P alleged sufficient facts to entitle him to a hearing on that issue.

Any equitable tolling that would apply to federal counsel’s errors in not timely filing on count III would apply to count II.

Finally, because P facially alleged the denial of a constitutional right, a COA is granted.