Tobias NICKELS, Petitioner-Appellant, v. James CONWAY, Respondent-Appellee.
No. 10-4228-pr.
United States Court of Appeals, Second Circuit.
May 8, 2012.
Because Lin failed to establish his eligibility for asylum, he necessarily was unable to meet the higher standard to establish his eligibility for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Lin has not chаllenged the agency‘s denial of CAT relief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005) (providing that issues not sufficiently argued in the briefs are considered waived and normally will not be addressed on appeal).
For the foregoing reasons, the petition for review is DENIED. As we have completed our rеview, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with
Jodi A. Danzig, Ashlyn Dannelly, Assistant Attorney Generals, of counsel; Barbara Underwood, Solicitor General, for Eric T. Schneiderman, Attorney General of the State of New York, New York, N.Y., for Appellee.
Present: JOHN M. WALKER, JR., CHESTER J. STRAUB, ROSEMARY S. POOLER, Circuit Judges.
SUMMARY ORDER
Petitioner Tobias Nickels filed a petition for relief under the All Writs Act,
The Antiterrorism and Effective Death Penalty Act (“AEDPA“) sets forth the standard for timely filing of a habeas claim. As relevant here, a petitioner must file within one year of the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.
Nickels argues that the negligence of his representation, Pro Se Litigators (“PSL“), constituted an extraordinary circumstance warranting equitable tolling. The district court assumed, but did not decide that this negligence constituted an extraordinary circumstance. While “attorney error normally will not constitute the extraordinary circumstances required to toll the AEDPA limitations period ... at sоme point, an attorney‘s behavior may be so outrageous or so incompetent as to render it extraordinary.” Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir. 2003). In Baldayaque, we found attorney negligence constituted an extraordinary circumstance where the lawyer failed to file the habeas pеtition, despite being specifically requested to do so (“By refusing to do what was requested by his client on such a fundamental matter, Weinstein violated a basic duty of an attorney to his client.“); did no legal research on the case, thus violating the duty of competence; and “failed to keep [his] client reasonably informed about the status of [the case] and failed to explain [the] matter to the extent reasonably necessary to permit [Baldayaque] to make informed decisions regarding the representation.” Id. (internal quotation marks omitted, аlterations in original).
Such failures are apparent here. PSL failed to file the habeas petition, despite its repeated promises, and apparent direction from Nickels, to do so. See Dillon v. Conway, 642 F.3d 358, 363 (2d Cir.2011) (indicating “an attorney‘s failure to file a habeas petition on behalf of a prisoner, despite explicit directions from the prisoner to do so” is a circumstance justifying equitable tolling). PSL also failed the basic duty of competence. The letter of May 5, 2008, indicated to Nickels that “[a]lthough timeliness is a serious factor we must work within the main thing at this pоint is that we leave no stone uncovered. Essentially it is quality over speed.” Such a representation about the importance of
Finally there is the question of abandonment. In Holland, the court indicated that “fundamental canons of professional responsibility ... 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.” 130 S.Ct. at 2564 (emphasis added). PSL obviously failed in this basic duty. Nickels was constantly apprised
But extraordinary circumstances themselves are not enough to entitle a petitioner to equitable tolling: “a petitioner is entitled to equitable tolling only if he shows ... that he has been pursuing his rights diligently...” Id. at 2562 (internal quotation marks omitted). “The standard is not ‘extreme diligence’ or ‘exceptional diligence,’ it is reasonable diligence.... [T]he district court should ask: did the petitioner act as diligently as reasonably could have been expected under the circumstances?” Baldayaque, 338 F.3d at 153. District courts may consider:
(1) [рetitioner‘s] efforts at the earliest possible time to secure counsel for the purpose of filing a habeas petition; (2) [petitioner‘s] lack of funds to consult another lawyer; ....(4) [counsel]‘s failure to communicate directly with [petitioner] at any time; (5) [petitioner‘s] laсk of education and inability to speak or write English; and (6) [petitioner‘s] incarceration and attendant lack of direct access to other forms of legal assistance.
The district court determined that Nickels was not diligent, and so was not1 entitled to equitable tolling, but it did not fully considеr all of the circumstances created by PSL‘s negligent representation. Looking first to the period before PSL was hired, the district court appears to have considered the fact that it took “nearly five months” for Nickels to hire PSL after his conviction became final as еvidence relevant to equitable tolling. But Nickels did not claim that the extraordinary circumstance had begun before he hired PSL, only after, and so his diligence during this period is not relevant.1
The district court determined that Nickels was not diligent after he had hired PSL, because he “had been given ample reason to suspect that something was amiss with Pro Se Litigators’ representation of him well prior to the filing deadline for the § 2254 petition.” Such a determination was error for two reasons. First, to the extent the district court‘s opinion suggests that Nickels should have taken earliеr measures to ensure the timeliness of his petition, we wrote in Valverde v. Stinson that “[a] petitioner should not be faulted ... for failing to file early or to take other extraordinary precautions early in the limitations period against what are, by definition, rare and exceptional circumstances that occur later in that period.” 224 F.3d 129, 136 (2d Cir.2000). Nickels was not required to take extraordinary precautions “well prior” to the filing deadline, when PSL consistently reassured him both that the petition would be timely, and moreover, that it did not have to be.
The next period of time to be considered is the period after Nickels learned of PSL‘s abandonment of him. Nickels argues that PSL‘s failure to “return his transcripts prevented him from preparing and filing his habeas corpus petition.” The district court found that Nickels was not diligent during this time because he could have “filed a ‘bare bones’ petition and sought to amend it later.” However, the district court erred in not considering what diligence was due from a person in Nickels‘s circumstance—that is, a petitioner who was told by his counsel that the record was necessary for the completion of the petition. A duly diligent petitioner in this circumstance might reasonably think that such papers were necessary to filing, and thus devote his time to getting them back rather than preparing a new petition.
Moreover, our case law suggests that a petitioner‘s legal papers and access to them are not irrelevant to his ability to file. See Valverde, 224 F.3d at 133. (“The intentional confiscation of a рrisoner‘s habeas corpus petition and related legal papers by a corrections officer is ‘extraordinary’ as a matter of law.“) In that case we wrote, “a person is plainly ‘prevented’ from filing a pleading for some period of time if he is deprived of thе sole copy of that pleading, something that the petitioner asserts happened to him here.” Id. at 134. While Nickels was not deprived of his actual habeas petition, he alleges he sent all of his legal materials to PSL, and that those documents were not returned after PSL declared bankruptcy, despite his efforts to obtain them. In light of that, the district court erred in calling Nickels’ failure to file upon learning of the bankruptcy a lack of diligence without considering the effect of PSL‘s repeated admonitions that his papers were necessary to filing.
In аddition, the record reflects that Nickels sought the assistance of the Law Library Officer and Personnel Administration at Attica where he was incarcerated. He also filed a complaint with the Attorney General, which was copied to the district court. At a minimum, this suggests Nickels was diligent in trying to figure out how to proceed between the time he learned he would not receive a petition from PSL and the time he ultimately filed. To suggest that a petitioner is not diligent in such circumstances when he does not simply file a bare bones petition does not appropriately take account of the fact that, in large part, habeas petitioners have but one bite at the apple. “[A] petitioner must navigate not-insignificant procedural complexities [in filing a habeas petition]. Mistakes can be costly, given the severe limitations that AEDPA imposes on the filing of second or successive petitions.” Harper v. Ercole, 648 F.3d 132, 140 (2d Cir.2011) (internal citation and quotation marks omitted).
Finally, we question the district court‘s suggestion that Nickels‘s eventual filing of a “well structured [petition] ... which raises appropriate actual allegations and points of law,” was evidence that he was not diligent in failing to file sooner. The fact that Nickels was eventually able to draft a petition without his transcripts does not mean that a duly diligent person would have done so sooner.
Our disagreement with the district court stems from its failure to consider diligence
Accordingly, the judgment of the district court hereby is VACATED and REMANDED.