Davis v. Lempke, 642 F. App'x 31

Warren Davis filed a federal habeas petition under 28 U.S.C. § 2254 that the district court dismissed as untimely; Davis conceded untimeliness but sought equitable tolling.
Davis’s counsel, Joseph M. Latino, prepared the petition but miscalculated the filing deadline; Davis argued Latino’s error justified equitable tolling.
Latino remained Davis’s counsel on appeal and had an evident personal interest in avoiding reputational harm from admitting abandonment.
For the district-court filing, Latino arranged for another lawyer, Anthony J. Maiocchi, to present the equitable-tolling argument; after filing Latino became “of counsel” at Maiocchi’s firm.
The Second Circuit concluded Latino’s involvement raised a non-waivable conflict and that Maiocchi’s later association with Latino created potential imputed conflict concerns.
The Court vacated and remanded for the district court to hold a hearing on whether Maiocchi’s representation (given his association with Latino) tainted the proceedings; Latino was disqualified on return to the court of appeals.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether attorney miscalculation of AEDPA deadline justifies equitable tolling	Davis: Latino’s miscalculation was an extraordinary circumstance warranting tolling	State: Attorney error is generally insufficient for tolling	Court: Attorney miscalculation alone usually insufficient; could qualify only if it amounted to effective abandonment (extraordinary)
Whether Latino’s continued representation creates a conflict preventing him from arguing equitable tolling based on his own error	Davis: Latino can competently and zealously argue equitable tolling	State: No explicit waiver; conflict exists because Latino would have reputational interest	Court: Latino’s involvement created a substantial danger to perceived fairness; conflict warranted disqualification
Whether the conflict was waivable or harmless	Davis: Any conflict was waived	State: Conflict should not be imputed / is waivable	Court: Some conflicts may be unwaivable; here integrity of proceedings required further inquiry; waiver argument insufficient to avoid disqualification concern
Whether Maiocchi’s presentation below was tainted by imputed conflict from Latino’s later association	Davis: Maiocchi was independent and properly presented the argument	State: Association does not necessarily impute conflict	Held: Record unclear; remand for district-court hearing to determine whether Maiocchi’s association with Latino imputed a conflict and whether that tainted proceedings

Rivas v. Fischer, 687 F.3d 514 (2d Cir.) (equitable tolling requires extraordinary circumstances)
Lawrence v. Florida, 549 U.S. 327 (attorney miscalculation generally insufficient for equitable tolling)
Christeson v. Roper, 135 S. Ct. 891 (counsel cannot reasonably be expected to argue that counsel’s own incompetence was extraordinary)
Hempstead Video, Inc. v. Inc. Vill. of Valley Stream, 409 F.3d 127 (2d Cir.) (attorney conflicts ordinarily imputed to firm)
Wheat v. United States, 486 U.S. 153 (courts have an independent interest in appearance of fairness and ethical compliance)
Emle Indus., Inc. v. Patentex, Inc., 478 F.2d 562 (2d Cir.) (good-faith assertion of ability to represent is insufficient alone to cure conflict concerns)
United States v. Oberoi, 331 F.3d 44 (2d Cir.) (disqualification when proceedings would not appear fair to observers)
United States v. Fulton, 5 F.3d 605 (2d Cir.) (reputational interests of counsel can create conflicts)