A Rare Habeas Equitable Tolling Victory

Loftis v. Chrisman, 812 F.3d 1268 (2/10/16) (Okl.) (Published) - Through no fault of his own, Mr. Loftis did not receive timely notice of the state district court denial of his habeas petition. He got notice of the denial 17 days after it was issued. The notice of appeal was due 10 days after the denial. Mr. Loftis promptly filed a motion to restart the 10-day period. More than two months later, the district court granted the motion. Mr. Loftis filed his notice of appeal within the time the district court granted. He then filed a petition in error and brief within 30 days of the district court's extension order. One year later, the Oklahoma Criminal Court of Appeals ("OCCA") denied the appeal as untimely. It interpreted the district court's extension grant as a denial of a recommendation for an out-of-time appeal. It then ruled that Mr. Loftis should have just filed his petition in error and brief within 30 days of the order denying his habeas petition and paid no attention to the rule that says a petitioner "must" file a notice of appeal within 10 days. Only the 30-day, petition-in-error rule was mandatory, the OCCA said. Mr. Loftis violated that rule by filing the petition in error more than two months after its due date. Mr. Loftis was not entitled to an appeal out of time because it was his fault he didn't know he should have ignored the notice-of-appeal deadline. Then the federal district court ruled Mr. Loftis's § 2254 petition was untimely because none of the time he spent in state court tolled the one-year statute of limitations because his appeal was untimely. The federal district court refused to apply equitable tolling because a pro se prisoner's ignorance of the law is not an extraordinary circumstance.

The 10th steps in to save the day. First, though, it does rule Mr. Loftis did file beyond the time limits. Untimely state habeas pleadings don't statutorily toll the deadline. But, in reliance on Burger v. Scott, 317 F.3d 1217, 1220 (10th Cir. 2003), the 10th finds Mr. Loftis met the diligence & extraordinary circumstances criteria for equitable tolling. Mr. Loftis diligently pursued his claims by filling documents he believed would be sufficient to ensure state court review. The extension grant reasonably led Mr. Loftis to believe he had done all he needed to do by filing the notice of appeal and then the petition in error. The 10th observes that an incarcerated pro se litigant should not be expected to know more than the state district court, which thought it had the power to grant him an extension. It was not obvious that Mr. Loftis was supposed to ignore the mandatory-sounding rule that he "must" file a timely notice of appeal before filing a petition in error. Indeed, the 10th expresses doubt the OCCA would have actually decided Mr. Loftis's appeal on the merits if he had followed the procedure the OCCA said he was supposed to follow. So, Mr. Loftis was not untimely due to ignorance of the law, as the federal district court said, but because the procedural rules provided no clear guidance for the unusual circumstances Mr. Loftis found himself in through no fault of his own, and the state district court caused Mr. Loftis to believe his efforts had been sufficient to ensure an appeal. In short, the untimeliness arose from "unique procedural impediments caused by the state's way of handling pro se prisoner's filings," including, the 10th notes, the short filing deadlines and the starting of the clock when the denial order is issued instead of when the prisoner receives the order. These were extraordinary circumstances. Mr. Loftis should not have been expected to file a protective federal petition, the 10th says. He had no reason to believe he was facing a statute of limitations problem until the OCCA made its decision when the statute of limitations had already passed. The 10th is not concerned that it took Mr. Loftis two months to file his federal habeas petition after the OCCA's decision. For an incarcerated pro se litigant, that was not such a long time as to constitute lack of diligence. The case goes back for the federal district court to decide the merits [without the AEDPA relief-preclusion provisions to worry about].