Lead Opinion
delivered the opinion
We here decide that the timeliness provision in the federal habeas corpus statute is subject to equitable tolling. See Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. § 2244(d). We also consider its application in this case. In the Court of Appeals’ view, when a petitioner seeks to excuse a late filing on the basis of his attorney’s unprofessional conduct, that conduct, even if it is “negligent” or “grossly negligent,” cannot “rise to the level of egregious attorney misconduct” that would warrant equitable tolling unless the petitioner offers “proof of bad faith, dishonesty, divided loyalty, mental impairment or so forth.”
I
AEDPA states that “[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” § 2244(d)(1). It also says that “[t]he time during which a properly filed application for State post-conviction ... review” is “pending shall not be counted” against the 1-year period. § 2244(d)(2).
On January 19, 2006, Albert Holland filed a pro se habeas corpus petition in the Federal District Court for the Southern District of Florida. Both Holland (the petitioner) and the State of Florida (the respondent) agree that, unless equitably tolled, the statutory limitations period applicable
A
In 1997, Holland was convicted of first-degree murder and sentenced to death. The Florida Supreme Court affirmed that judgment. Holland v. State,
Thirty-seven days later, on November 7, 2001, Florida appointed attorney Bradley Collins to represent Holland in all state and federal postconvietion proceedings. Cf. Fla. Stat. §§27.710, 27.711(2) (2007). By September 19, 2002 — 316 days after his appointment and 12 days before the 1-year AEDPA limitations period expired — Collins, acting on Holland's behalf, filed a motion for postconviction relief in the state trial court. Cf. Brief for Respondent 9, n. 7. That filing automatically stopped the running of the AEDPA limitations period, § 2244(d)(2), with, as we have said, 12 days left on the clock.
For the next three years, Holland's petition remained pending in the state courts. During that time, Holland wrote Collins letters asking him to make certain that all of his claims would be preserved for any subsequent federal habeas corpus review. Collins wrote back, stating, “I would like to reassure you that we are aware of state time-limitations and federal exhaustion requirements.” App. 55. He also said that he would “presen[t]... to the .. . federal courts” any of Holland's claims that the state courts denied. Ibid. In a second letter Collins added, “should your Motion for Post-Conviction Relief be denied” by the state courts, “your state habeas corpus claims will then be ripe for presentation in a petition for writ of habeas corpus in federal court.” Id., at 61.
In mid-May 2003, the state trial court denied Holland relief, and Collins appealed that denial to the Florida Supreme Court. Almost two years later, in February 2005, the Florida Supreme Court heard oral argument in the case. See
Holland, unhappy with this lack of communication, twice wrote to the Florida Supreme Court, asking it to remove Collins from his case. In the second letter, filed on June 17, 2004, he said that he and Collins had experienced “a complete breakdown in communication.” App. 160. Holland informed the court that Collins had “not kept [him] updated on the status of [his] capital case” and that Holland had “not seen or spoken to” Collins “since April 2003.” Id., at 150. He wrote, “Mr. Collins has abandoned [me]” and said, “[I have] no idea what is going on with [my] capital ease on appeal.” Id., at 152. He added that “Collins has never made any reasonable effort to establish any relationship of trust or confidence with [me],” id., at 155, and stated that he “does not trust”
During this same period Holland wrote various letters to the Clerk of the Florida Supreme Court. In the last of these he wrote, “[I]f I had a competent, conflict-free, postconviction, appellate attorney representing me, I would not have to write you this letter. I’m not trying to get on your nerves. I just would like to know exactly what is happening with my case on appeal to the Supreme Court of Florida.” Id., at 147. During that same time period, Holland also filed a complaint against Collins with the Florida Bar Association, but the complaint was denied. Id., at 65-67.
Collins argued Holland’s appeal before the Florida Supreme Court on February 10, 2005.
“Dear Mr. Collins, P. A.:
“How are you? Fine I hope.
“I write this letter to ask that you please write me back, as soon as possible to let me know what the status of my case is on appeal to the Supreme Court of Florida.
“If the Florida Supreme Court denies my [postconviction] and State Habeas Corpus appeals, please file my 28 U S. C. 2254 writ of Habeas Corpus petition, before my deadline to file it runs out (expires).
“Thank you very much.
“Please have a nice day.” App. 210 (emphasis added).
Collins did not answer this letter.
On June 15, 2005, Holland wrote again:
“Dear Mr. Collins:
“How are you? Fine I hope.
“On March 3, 2005 I wrote you a letter, asking that you let me know the status of my case on appeal to the Supreme Court of Florida.
“Also, have you begun preparing my 28 U. S. C. §2254 writ of Habeas Corpus petition? Please let me know, as soon as possible.
“Thank you.” Id., at 212 (emphasis added).
But again, Collins did not reply.
Five months later, in November 2005, the Florida Supreme Court affirmed the lower court decision denying Holland relief. Holland v. State,
B
Four weeks after the AEDPA time limit expired, on January 9, 2006, Holland, still unaware of the Florida Supreme Court
“Dear Mr. Bradley M. Collins:
“How are you? Fine I hope.
“I write this letter to ask that you please let me know the status of my appeals before the Supreme Court of Florida. Have my appeals been decided yet?
“Please send me the [necessary information] ... so that I can determine when the deadline will be to file my 28 U. S. C. Rule 2254 Federal Habeas Corpus Petition, in accordance with all United States Supreme Court and Eleventh Circuit case law and applicable ‘Antiterrorism and Effective Death Penalty Act/ if my appeals before the Supreme Court of Florida are denied.
“Please be advised that I want to preserve my privilege to federal review of all of my state convictions and sentences.
“Mr. Collins, would you please also inform me, as to which United States District Court my 28 U. S. C. Rule 2254 Federal Habeas Corpus Petition will have to be timely filed in and that court’s address?
“Thank you very much.” App. 214.
Collins did not answer.
Nine days later, on January 18, 2006, Holland, working in the prison library, learned for the first time that the Florida Supreme Court had issued a final determination in his case and that its mandate had issued — five weeks prior.
“Comes now Albert R. Holland, Jr., a Florida death row inmate and states that court appointed counsel has failed to undertake timely action to seek Federal Review in my case by filing a 28 U. S. C. Rule 2254 Petition for Writ of Habeas Corpus on my behalf.” App. 181.
It then describes the various constitutional claims that Holland hoped to assert in federal court.
The same day that he mailed that petition, Holland received a letter from Collins telling him that Collins intended to file a petition for certiorari in this Court from the State Supreme Court’s most recent ruling. Holland answered immediately:
“Dear Mr. Bradley M. Collins:
“Since recently, the Supreme Court of Florida has denied my [postconviction] and state writ of Habeas Corpus Petition. I am left to understand that you are planning to seek certiorari on these matters.
“It’s my understanding that the AEDPA time limitations is not tolled during discretionary appellate reviews, such as certiorari applications resulting from denial of state post conviction proceedings.
“Therefore, I advise you not to file certiorari if doing so affects or jeopardizes my one year grace period as prescribed by the AEDPA.
“Thank you very much.” Id., at 216 (some emphasis deleted).
Holland was right about the law. See Coates, supra, at 1226-1227 (AEDPA not tolled during pendency of petition for certiorari from judgment denying state postconviction review); accord, Lawrence v. Florida,
On January 26, 2006, Holland tried to call Collins from prison. But he called collect and Collins’ office would not accept the call. App. 218. Five days later, Collins
“Dear Mr. Holland:
“I am in receipt of your letter dated January 20,2006 concerning operation of AEDPA time limitations. One hurdle in our upcoming efforts at obtaining federal ha-beas corpus relief will be that the one-year statutory time frame for filing such a petition began to run after the case was affirmed on October 5, 2000 [when your] Judgment and Sentence... were affirmed by the Florida Supreme Court. However, it was not until November 7, 2001, that I received the Order appointing me to the case. As you can see, I was appointed about a year after your case became final. . ..
“[T]he AEDPA time-period [thus] had run before my appointment and therefore before your [postconviction] motion was filed.” Id., at 78-79 (emphasis added).
Collins was wrong about the law. As we have said, Holland’s 1-year limitations period did not begin to run until this Court denied Holland’s petition for certiorari from the state courts’ denial of relief on direct review, which occurred on October 1, 2001. See 28 U. S. C. § 2244(d)(1)(A); Jimenez,
Holland immediately wrote back to Collins, pointing this out.
“Dear Mr. Collins:
“I received your letter dated January 31, 2006. You are incorrect in stating that ‘the one-year statutory time frame for filing my 2254 petition began to run after my case was affirmed on October 5, 2000, by the Florida Supreme Court.’ As stated on page three of [the recently filed] Petition for a writ of certiorari, October 1, 2001 is when the United States Supreme Court denied my initial petition for writ of certiorari and that is when my ease became final. That meant that the time would be tolled once I filed my [postconviction] motion in the trial court.
“Also, Mr. Collins you never told me that my time ran out (expired). I told you to timely file my 28 U. S. C. 2254 Habeas Corpus Petition before the deadline, so that I would not be time-barred.
“You never informed me of oral arguments or of the Supreme Court of Florida’s November 10, 2005 decision denying my postconviction appeals. You never kept me informed about the status of my case, although you told me that you would immediately inform me of the court’s decision as soon as you heard anything.
“Mr. Collins, I filed a motion on January 19, 2006 [in federal court] to preserve my rights, because I did not want to be time-barred. Have you heard anything about the aforesaid motion? Do you know what the status of aforesaid motion is?
“Mr. Collins, please file my 2254 Habeas Petition immediately. Please do not wait any longer, even though it will be untimely filed at least it will be filed without wasting anymore time, (valuable time).
“Again, please file my 2254 Petition at once.
“Your letter is the first time that you have ever mentioned anything to me about my time had run out, before you were appointed to represent me, andthat my one-year started to run on October 5, 2000.
“Please find out the status of my motion that I filed on January 19, 2006 and let me know.
“Thank you very much.” App. 222-223.
Collins did not answer this letter. Nor did he file a federal habeas petition as Holland requested.
On March 1,2006, Holland filed another complaint against Collins with the Florida Bar Association. See Record, Doc. 41, Exh. 1, p. 8. This time the bar asked Collins to respond, which he did, through his own attorney, on March 21. Id., at 2. And the very next day, over three months after Holland’s AEDPA statute of limitations had expired, Collins mailed a proposed federal habeas petition to Holland, asking him to review it. See id., Doc. 20, Exh. W.
But by that point Holland had already filed a pro se motion in the District Court asking that Collins be dismissed as his attorney. App. 192. The State responded to that request by arguing once again that Holland could not file a pro se motion seeking to have Collins removed while he was represented by counsel, i. e., represented by Collins. See id., at 47-51. But this time the court considered Holland’s motion, permitted Collins to withdraw from the case, and appointed a new lawyer for Holland. See Record, Docs. 9-10, 17-18, 22. And it also received briefing on whether the circumstances of the case justified the equitable tolling of the AEDPA limitations period for a sufficient period of time (approximately five weeks) to make Holland’s petition timely.
C
After considering the briefs, the Federal District Court held that the facts did not warrant equitable tolling and that consequently Holland’s petition was untimely. The court, noting that Collins had prepared numerous filings on Holland’s behalf in the state courts, and suggesting that Holland was a difficult client, intimated, but did not hold, that Collins’ professional conduct in the case was at worst merely “negligent.” See District Court opinion 7-8, App. 90-93. But the court rested its holding on an alternative rationale: It wrote that, even if Collins’ “behavior could be characterized as an ‘extraordinary circumstance,’” Holland “did not seek any help from the court system to find out the date [the] mandate issued denying his state habeas petition, nor did he seek aid from ‘outside supporters.’” Id., at 8, App. 92. Hence, the court held, Holland did not “demonstrate” the “due diligence” necessary to invoke “equitable tolling.” Ibid.
On appeal, the Eleventh Circuit agreed with the District Court that Holland’s habeas petition was untimely. The Court of Appeals first agreed with Holland that “ ‘[ejquitable tolling can be applied to ... AEDPA’s statutory deadline.’ ”
“We will assume that Collins’s alleged conduct is negligent, even grossly negligent. But in our view, no allegation of lawyer negligence or of failure to meet a lawyer’s standard of care — in the absence of an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer’s part— can rise to the level of egregiousattorney misconduct that would entitle Petitioner to equitable tolling.” Ibid.
Holland made “no allegation” that Collins had made a “knowing or reckless factual misrepresentation,” or that he exhibited “dishonesty,” “divided loyalty,” or “mental impairment.” Ibid. Hence, the court held, equitable tolling was per se inapplicable to Holland’s habeas petition. The court did not address the District Court’s ruling with respect to Holland’s diligence.
Holland petitioned for certiorari. Because the Court of Appeals’ application of the equitable tolling doctrine to instances of professional misconduct conflicts with the approach taken by other Circuits, we granted the petition. Compare
II
We have not decided whether AEDPA’s statutory limitations period may be tolled for equitable reasons. See Lawrence,
We base our conclusion on the following considerations. First, the AEDPA “statute of limitations defense ... is not ‘jurisdictional.’” Day v. McDonough,
We have previously made clear that a nonjurisdictional federal statute of limitations is normally subject to a “rebut-table presumption” in favor “of equitable tolling.” Irwin,
In the case of AEDPA, the presumption’s strength is reinforced by the fact that '"equitable principles’” have traditionally “ 'governed’ ” the substantive law of habeas corpus, Munaf v. Geren,
Second, the statute here differs significantly from the statutes at issue in United States v. Brockamp,
By way of contrast, AEDPA’s statute of limitations, unlike the statute at issue in Brockamp, does not contain language that is “unusually emphatic,” nor does it “reiterat[e]” its time limitation. Neither would application of equitable tolling here affect the “substance” of a petitioner’s claim. Moreover, in contrast to the 12-year limitations period at issue in Beggerly, AEDPA’s limitations period is not particularly long. And unlike the subject matters at issue in both Brockamp and Beggerly — tax collection and land claims— AEDPA’s subject matter, habeas corpus, pertains to an area of the law where equity finds a comfortable home. See Munaf, supra, at 693. In short, AEDPA’s 1-year limit reads like an ordinary, run-of-the-mill statute of limitations. See Calderon, supra, at 1288.
Respondent, citing Brockamp, argues that AEDPA should be interpreted to foreclose equitable tolling because the statute sets forth “explicit exceptions to its basic time limits” that do “not include 'equitable tolling.’ ”
Third, and finally, we disagree with respondent that equitable tolling undermines AEDPA’s basic purposes. We recognize that AEDPA seeks to eliminate delays in the federal habeas review process. See Day,
For these reasons we conclude that neither AEDPA’s textual characteristics nor the statute’s basic purposes “rebut” the basic presumption set forth in Irwin. And we therefore join the Courts of Appeals in holding that § 2244(d) is subject to equitable tolling.
Ill
We have previously made clear that a “petitioner” 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. Pace,
We have said that courts of equity “must be governed by rules and precedents no less than the courts of law.” Lonchar v. Thomas,
We recognize that, in the context of procedural default, we have previously stated, without qualification, that a petitioner “must ‘bear the risk of attorney error.’ ” Coleman v. Thompson,
In short, no pre-existing rule of law or precedent demands a rule like the one set forth by the Eleventh Circuit in this case. That rule is difficult to reconcile with more general equitable principles in that it fails to recognize that, at least sometimes, professional misconduct that fails to meet the Eleventh Circuit’s standard could nonetheless amount to egregious behavior and create an extraordinary circumstance that warrants equitable tolling. And, given the long history of judicial application of equitable tolling, courts can easily find precedents that can guide their judgments. Several lower courts have specifically held
We have previously held that “a garden variety claim of excusable neglect,” Irwin,
IV
The record facts that we have set forth in Part I of this opinion suggest that this case may well be an “extraordinary” instance in which petitioner’s attorney’s conduct constituted far more than “garden variety” or “excusable neglect.” To be sure, Collins failed to file Holland’s petition on time and appears to have been unaware of the date on which the limitations period expired — two facts that, alone, might suggest simple negligence. But, in these circumstances, the record facts we have elucidated suggest that the failure amounted to more: Here, Collins failed to file Holland’s federal petition on time despite Holland’s many letters that repeatedly emphasized the importance of his doing so. Collins apparently did not do the research necessary to find out the proper filing date, despite Holland’s letters that went so far as to identify the applicable legal rules. Collins failed to inform Holland in a timely manner about the crucial fact that the Florida Supreme Court had decided his case, again despite Holland’s many pleas for that information. And Collins failed to communicate with his client over a period of years, despite various pleas from Holland that Collins respond to his letters.
A group of teachers of legal ethics tells us that these various failures violated fundamental canons of professional responsibility, which require attorneys to perform reasonably competent legal work, to communicate with their clients, to implement clients’ reasonable requests, to keep their clients informed of key developments in their cases, and never to abandon a client. See Brief for Legal Ethics Professors et al. as Amici Curiae (describing ethical rules set forth in case law, the Restatements of Agency, the Restatement (Third) of the Law Governing Lawyers
We do not state our conclusion in absolute form, however, because more proceedings may be necessary. The District Court rested its ruling not on a lack of extraordinary circumstances, but rather on a lack of diligence — a ruling that respondent does not defend. See Brief for Respondent 38, n. 19; Tr. of Oral Arg. 43, 52. We think that the District Court’s conclusion was incorrect. The diligence required for equitable tolling purposes is “‘reasonable diligence,’” see, e. g., Lonchar,
Because the District Court erroneously relied on a lack of diligence, and because the Court of Appeals erroneously relied on an overly rigid per se approach, no lower court has yet considered in detail the facts of this case to determine whether they indeed constitute extraordinary circumstances sufficient to warrant equitable relief. We are “[mjindful that this is a court of final review and not first view.” Adarand Constructors, Inc. v. Mineta,
The judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Concurrence Opinion
concurring in part and concurring in the judgment.
This case raises two broad questions: first, whether the statute of limitations set out in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. § 2244(d), is subject to equitable tolling; and second, assuming an affirmative answer to the first question, whether petitioner in this particular case has alleged facts that are sufficient to satisfy the “extraordinary circumstances” prong of the equitable tolling test. I agree with the Court’s conclusion that equitable tolling is available under AEDPA. I also agree with much of the Court’s discussion concerning whether equitable tolling is available on the facts of this particular case. In particular, I agree that the Court of Appeals erred by essentially limiting the relevant inquiry to the question whether “gross negligence” of counsel may be an extraordinary circumstance warranting equitable
Although I agree that the Court of Appeals applied the wrong standard, I think that the majority does not do enough to explain the right standard. It is of course true that equitable tolling requires “extraordinary circumstances,” but that conelusory formulation does not provide much guidance to lower courts charged with reviewing the many habeas petitions filed every year. I therefore write separately to set forth my understanding of the principles governing the availability of equitable tolling in cases involving attorney misconduct.
I
“Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo,
First, our prior cases make it abundantly clear that attorney negligence is not an extraordinary circumstance warranting equitable tolling. In Lawrence v. Florida,
The basic rationale for Lawrence’s holding is that the mistakes of counsel are constructively attributable to the client, at least in the postconviction context. The Lawrence Court’s reliance on Coleman is instructive. In Coleman, the Court addressed whether attorney error provided cause for a procedural default based on a late filing. See
While Lawrence addressed an allegation of attorney miscalculation, its rationale fully applies to other forms of attorney negligence. Instead of miscalculating the filing deadline, for example, an attorney could compute the deadline correctly but forget to file the habeas petition on time, mail the petition to the wrong address, or fail to do the requisite research to determine the applicable deadline. In any case, however, counsel’s error would be constructively attributable to the client.
Second, the mere fact that a missed deadline involves “gross negligence” on the part of counsel does not by itself establish an extraordinary circumstance. As explained above, the principal rationale for disallowing equitable tolling based on ordinary attorney miscalculation is that the error of an attorney is constructively attributable to the client and thus is not a circumstance beyond the litigant’s control. See Lawrence, supra, at 336-337; Coleman, supra, at 752-754; see also Powell v. Davis,
Allowing equitable tolling in cases involving gross rather than ordinary attorney negligence would not only fail to make sense in light of our prior eases; it would also be impractical in the extreme. Missing the statute of limitations will generally, if not always, amount to negligence, see Lawrence,
Finally, it is worth noting that a rule that distinguishes between ordinary and gross attorney negligence for purposes of the equitable tolling analysis would have demonstrably “inequitable” consequences. For example, it is hard to see why a habeas petitioner should be effectively penalized just because his counsel was negligent rather than grossly negligent, or why the State should be penalized just because petitioner’s counsel was grossly negligent rather than moderately negligent. Regardless of how one characterizes counsel’s deficient performance in such cases, the petitioner is not personally at fault for the untimely filing, attorney error is a but-for cause of the late filing, and the governmental interest in enforcing the statutory limitations period is the same.
II
Although attorney negligence, however styled, does not provide a basis for equitable tolling, the AEDPA statute of limitations may be tolled if the missed deadline results from attorney miseonduct that is not constructively attributable to the petitioner. In this case, petitioner alleges facts that amount to such misconduct. See ante, at 652 (acknowledging that ordinary attorney negligence does not warrant equitable tolling, but observing that “the facts of this case present far more serious instances of attorney misconduct”). In particular, he alleges that his attorney essentially “ ‘abandoned’ ” him, as evidenced by counsel’s near-total failure to communicate with petitioner or to respond to petitioner’s many inquiries and requests over a period of several years. See ante, at 636-637. Petitioner also appears to allege that he made reasonable efforts to terminate counsel due to his inadequate representation and to proceed pro se, and that such efforts were successfully opposed by the State on the perverse ground that petitioner failed to act through appointed counsel. See ante, at 637; Brief for Petitioner 50-51 (stating that petitioner filed “two pro se motions in the Florida Supreme Court to remove Collins as counsel (one of which, if granted, would have allowed [petitioner] to proceed pro se)” (emphasis deleted)).
If true, petitioner’s allegations would suffice to establish extraordinary circumstances beyond his control. Common sense dictates that a litigant cannot be held constructively responsible for the conduct of an attorney who is not operating as his agent in any meaningful sense of that word. See Coleman, supra, at 754 (relying on “well-settled principles of agency law” to determine whether attorney error was attributable to client); Baldayaque, supra, at 154 (Jacobs, J., concurring) (“[W]hen an ‘agent acts in a manner completely adverse to the principal’s interest,’ the ‘principal is not charged with [the] agent’s misdeeds’ ”). That is particularly so if the litigant’s reasonable efforts to terminate the attorney’s representation have been thwarted by forces wholly beyond the petitioner’s control. The Court of Appeals apparently did not consider petitioner’s abandonment argument or assess whether the State improperly prevented petitioner from either obtaining new representation or assuming the responsibility of representing himself. Accordingly, I agree with the majority that the appropriate disposition is to reverse and remand so that the lower courts may apply the correct standard to the facts alleged here.
Dissenting Opinion
with
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a 1-year limitations period for state prisoners to seek federal habeas relief, subject to several specific exceptions. 28 U. S. C. § 2244(d). The Court concludes that this time limit is also subject to equitable tolling, even for attorney errors that are ordinarily attributable to the client. And it rejects the Court of Appeals’ conclusion that Albert Holland is not entitled to tolling, without explaining why the test that court applied was wrong or what rule it should have applied instead. In my view § 2244(d) leaves no room for equitable exceptions, and Holland could not qualify even if it did.
I
The Court is correct, ante, at 645-646, that we ordinarily presume federal limitations periods are subject to equitable tolling unless tolling would be inconsistent with the statute. Young v. United States,
But § 2244(d) does much more than that, establishing a detailed scheme regarding the filing deadline that addresses an array of contingencies. In an ordinary case, the clock starts when the state-court judgment becomes final on direct re view. § 2244(d)(1)(A).
The question, therefore, is not whether § 2244(d)’s time bar is subject to tolling, but whether it is consistent with § 2244(d) for federal courts to toll the
In my view it is not. It is fair enough to infer, when a statute of limitations says nothing about equitable tolling, that Congress did not displace the default rule. But when Congress has codified that default rule and specified the instances where it applies, we have no warrant to extend it to other cases. See United States v. Beggerly,
The Court’s responses are unpersuasive. It brushes aside §2244(d)(l)(B)-(D), apparently because those subdivisions merely delay the start of the limitations period but do not suspend a limitations period already underway. Ante, at 647-648. But the Court does not explain why that distinction makes any difference,
The Court does address § 2244(d)(2), which undeniably provides for poststart tolling, but dismisses it on the basis that Congress had to resolve a contradiction between § 2244(d)’s 1-year time bar and the rule of Rose v. Lundy,
A
Even if § 2244(d) left room for equitable tolling in some situations, tolling surely should not excuse the delay here. Where equitable tolling is available, we have held that a litigant is entitled to it only if he has diligently pursued his rights and — the requirement relevant here — if “‘some extraordinary circumstance stood in his way.’” Lawrence v. Florida,
To be sure, the rule that an attorney’s acts and oversights are attributable to the client is relaxed where the client has a constitutional right to effective assistance of counsel. Where a State is constitutionally obliged to provide an attorney but fails to provide an effective one, the attorney’s failures that fall below the standard set forth in Strickland v. Washington,
Congress could, of course, have included errors by state-appointed habeas counsel as a basis for delaying the limitations period, but it did not. Nor was that an oversight: Section 2244(d)(1)(B) expressly allows tolling for state-created impediments that prevent a prisoner from filing his application, but only if the impediment violates the Constitution or federal law.
If there were any doubt that equitable tolling is unavailable under § 2244(d) to excuse attorney error, we eliminated it in Lawrence. The petitioner there asserted that his attorney’s miscalculation of the limitations period for federal habeas applications
Faithful application of Lawrence should make short work of Holland’s claim. Although Holland alleges a wide array of misconduct by his counsel, Bradley Collins, the only pertinent part appears extremely similar, if not identical, to the attorney’s error in Lawrence. The relevant time period extends at most from November 10, 2005 — when the Florida Supreme Court affirmed the denial of Holland’s state habeas petition* **
Why Collins did not notify Holland or file a timely federal application for him is unclear, but none of the plausible explanations would support equitable tolling. By far the most likely explanation is that Collins made exactly the same mistake as the attorney in Lawrence — i. e., he assumed incorrectly that the pendency of a petition for certiorari in this Court seeking review of the denial of Holland’s state habeas petition would toll AEDPA’s time bar under § 2244(d)(2). In December 2002, Collins had explained to Holland by letter that if his state habeas petition was denied and this Court denied certiorari in that proceeding, Holland’s claims “will then he ripe for presentation in a petition for writ of habeas corpus in federal court.” App. 61 (emphasis added). Holland himself interprets that statement as proof that, at that time, “Collins was under the belief that [Holland’s] time to file his federal habeas petition would continue to be tolled until this Court denied certiorari” in his state postconviction proceeding. Pet. for Cert. 12, n. 10. That misunderstanding would entirely account for Collins’s conduct — filing a cer-tiorari petition instead of a habeas application, and waiting nearly three months to do so. But it would also be insufficient, as Lawrence held it was, to warrant tolling.
The other conceivable explanations for Collins’s failure fare no better. It may be that Collins believed — as he explained to Holland in a January 2006 letter, after Holland had informed him that a certiorari petition in a state post-conviction proceeding would not stop the clock — that the cer-tiorari petition in Holland’s direct appeal also did not toll the time bar. Consequently,
Or it may be that Collins (despite what he wrote to Holland) correctly understood the rule but simply neglected to notify Holland; perhaps he missed the state court’s ruling in his mail, or perhaps it simply slipped his mind. Such an oversight is unfortunate, but it amounts to “garden variety” negligence, not a basis for equitable tolling. Irwin v. Department of Veterans Affairs,
The Court insists that Collins’s misconduct goes beyond garden-variety neglect and mine-run miscalculation. Ante, at 651-652. But the only differences it identifies had no effect on Holland’s ability to file his federal application on time. The Court highlights Collins’s nonresponsiveness while Holland’s state postconviction motions were still pending. Ante, at 652. But even taken at face value, Collins’s silence prior to November 10, 2005, did not prevent Holland from filing a timely federal application once the Florida courts were finished with his case. The Court also appears to think significant Collins’s correspondence with Holland in January 2006, after the limitations period had elapsed. Ante, at 639-643, 652. But unless Holland can establish that the time bar should be tolled due to events before December 15, 2005, any misconduct by Collins after the limitations period elapsed is irrelevant. Even if Collins’s conduct before November 10 and after December 15 was “extraordinary,” Holland has not shown that it “stood in his way and prevented timely filing.” Lawrence,
For his part, Holland now asserts that Collins did not merely forget to keep his client informed, but deliberately deceived him. As the Court of Appeals concluded, however, Holland did not allege deception in seeking equitable tolling below. See
Despite its insistence that Lawrence does not control this case, the Court does not actually hold that Holland is entitled to equitable tolling. It concludes only that the Eleventh Circuit applied the wrong rule and remands the case for a re-do. That would be appropriate if the Court identified a legal error in the Eleventh Circuit’s analysis and set forth the proper standard it should have applied.
The Court does neither. It rejects as “too rigid,” ante, at 649, the Eleventh Circuit’s test — which requires, beyond ordinary attorney negligence, “an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer’s part,”
Moreover, even if the Eleventh Circuit had adopted an entirely inflexible rule, it is simply untrue that, as the Court appears to believe, ante, at 649-650, all general rules are ipso facto incompatible with equity. We have rejected that canard before, see, e.g., Grupo Mexicano de Desarrollo, S. A. v. Alliance Bond Fund, Inc.,
Consistent with its failure to explain the error in the Eleventh Circuit’s test, the Court offers almost no clue about what test that court should have applied. The Court unhelpfully advises the Court of Appeals that its test is too narrow, with no explanation besides the assertion that its test left out cases where tolling might be warranted, and no precise indication of what those cases might be. Ante, at 651 (“[A]t least sometimes, professional misconduct that fails to meet the Eleventh Circuit’s standard could nonetheless amount to egregious behavior and create an extraordinary circumstance that warrants equitable tolling”). The Court says that “courts can easily find precedents that can guide their judgments,” ibid., citing several Court of Appeals opinions that (in various contexts) permit tolling for attorney error — but notably omitting opinions that disallow it, such as the Seventh Circuit’s opinion in Powell v. Davis,
The only thing the Court offers that approaches substantive instruction is its implicit approval of “fundamental canons of professional responsibility,” articulated by an ad hoc group of legal-ethicist amici consisting mainly of professors of that least analytically rigorous and hence most subjective of law-school subjects, legal ethics. Ante, at 652. The Court does not even try to justify importing into equity the “prevailing professional norms” we have held implicit in the right to counsel, Strickland,
C
The Court’s refusal to articulate an intelligible rule regarding the only issue actually before us stands in sharp contrast to its insistence on deciding an issue that is not before us: whether Holland satisfied the second prerequisite for equitable tolling by demonstrating that he pursued his rights diligently, see Pace,
The Court offers no justification for deciding this distinct issue. The closest it comes is its observation that the State “does not defend” the District Court’s ruling regarding diligence. Ante, at 658. But the State had no reason to do so — any more than it had reason to address the merits of Holland’s habeas claims. Nor, contrary to the Court’s implication, has the State conceded the issue. The footnote of the State’s brief which the Court cites did just the opposite: After .observing that only the extraordinary-circumstance prong of the equitable-tolling test is at issue, the State (perhaps astutely apprehensive that the Court might ignore that fact) added that “to the extent the Court considers the matter” of Holland’s diligence, “[Respondent relies on the findings of the district court below.” Brief for Respondent 38, n. 19. The Court also cites a statement by the State’s counsel at oral argument, Tr. of Oral Arg. 43, and Holland’s counsel’s characterization of it as a concession, id., at 52. But the remark, in context, shows only that the State does not dispute diligence in this Court, where the only issue is extraordinary circumstances:
“Well, that goes to the issue ... of diligence, of course, which is not the issue we’re looking at. We’re looking at the extraordinary circumstances, not the diligence____ “[WJe’ll concede diligence for the moment . . . .” Id., at 43.
Notwithstanding the Court’s confidence that the District Court was wrong, it is not even clear that Holland acted with the requisite diligence. Although Holland repeatedly contacted Collins and the state courts, there were other reasonable measures Holland could have pursued. For example, as we suggested in Pace, supra, at 416 — decided while Holland’s
* *
The Court’s impulse to intervene when a litigant’s lawyer has made mistakes is understandable; the temptation to tinker with technical rules to achieve what appears a just result is often strong, especially when the client faces a capital sentence. But the Constitution does not empower federal courts to rewrite, in the name of equity, rules that Congress has made. Endowing unelected judges with that power is irreconcilable with our system, for it “would literally place the whole rights and property of the community under the arbitrary will of the judge,” arming him with “a despotic and sovereign authority,” 1 J. Story, Commentaries on Equity Jurisprudence §19, p. 19 (14th ed. 1918). The danger is doubled when we disregard our own precedent, leaving only our own consciences to constrain our discretion. Because both the statute and stare decisis foreclose Holland’s claim, I respectfully dissent.
Notes
Title 28 U. S. C. § 2244(d) provides:
“(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—
“(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
“(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
“(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
“(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
“(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.”
The Court cites several Court of Appeals cases that support its triggering-tolling distinction, ante, at 647, but no case of ours that does so. Clay v. United States,
The Court reads Young as support for disregarding the specific tolling provisions Congress included in § 2244(d). Ante, at 648. But in the pertinent passage, Young explained only that the inclusion of an express tolling rule in a different provision regarding a different limitations period, 11 U. S. C. §507(a)(8)(A)(ii) (2000 ed.) — albeit a provision within' the same subparagraph as the provision at issue, § 507(a)(8)(A)® — did not rebut the presumption of equitable tolling. See
The Court dismisses Coleman as “a case about federalism” and therefore inapposite here. Ante, at 650 (internal quotation marks omitted). I fail to see how federalism concerns are not implicated by ad hoc exceptions to the statute of limitations for attempts to overturn state-court convictions. In any event, Coleman did not invent, but merely applied, the already established principle that an attorney’s acts are his client’s. See
That Holland’s counsel was appointed, rather than, like counsel in Coleman, retained, see Brief for Respondent in Coleman v. Thompson, O. T. 1990, No. 89-7662, pp. 33-34, 40, is irrelevant. The Sixth Amendment right to effective assistance of counsel, we have held, applies even to an attorney the defendant himself hires. See Cuyler v. Sullivan,
The Florida Supreme Court did not issue its mandate, and the limitations period did not resume, see Lawrence,
The parties dispute when Holland’s state habeas petition was filed, and thus when the limitations period expired. Brief for Petitioner 4-5, and n. 4; Brief for Respondent 8, 9, n. 7. The discrepancy is immaterial, but I give Holland the benefit of the doubt.
Holland insists that he did allege deception below, see Brief for Petitioner 31, n. 29, but cites only a conclusory allegation in an unrelated motion (a motion for appointment of new counsel). See App. 194. His reply to the State’s response to the order to show cause, drafted by new counsel, did not allege deception. 1 Record, Doc. 35.
The concurrence argues that Holland’s allegations suffice because they show, if true, that Collins “essentially ‘abandoned’ ” Holland by failing to respond to Holland’s inquiries, and therefore ceased to act as Holland’s agent. Ante, at 659 (Alito, J., concurring in part and concurring in judgment). But Collins’s failure to communicate has no bearing unless it ended the agency relationship before the relevant window. The concurrence does not explain why it would — does not contend, for example, that Collins’s conduct amounted to disloyalty or renunciation of his role, which would terminate Collins’s authority, see Restatement (Second) of Agency §§ 112, 118 (1957). Collins’s alleged nonresponsiveness did not help Hoi-land’s cause, but it was no more “adverse to [Holland’s] interest” or “beyond [Holland’s] control,” ante, at 659-660 (internal quotation marks omitted), and thus no more a basis for holding Holland harmless from the consequences of his counsel's conduct, than mine-run attorney mistakes, cf. Irwin v. Department of Veterans Affairs,
Holland made many pro se filings in state court (which were stricken because Holland was still represented), and he sought to have new counsel appointed in Collins’s place, but did not seek to proceed pro se. The Court does not dispute this, nor does Holland. The most he asserts is that one of the pro se motions he filed, if granted, would have entitled him to proceed pro se, see Brief for Petitioner 50-51 — an assertion he appears not to have made in the District Court, see 1 Record, Doc. 35, at 15. The concurrence equates that assertion with an allegation that he actually sought to litigate his ease on his own behalf. Ante, at 659. It is not the same. The filing Holland refers to, see Brief for Petitioner 12, and n. 13, like his earlier filings, requested that Collins be replaced by new counsel. App. 149-163. The motion also asked for a hearing pursuant to Nelson v. State,