Lead Opinion
(pp. 935-43), delivered a separate dissenting opinion.
OPINION
Petitioner Christopher Solomon, currently serving a 240-month sentence following his conviction in the United States District Court for the Southern District of Ohio for knowingly and intentionally possessing with the intent to distribute crack cocaine, appeals the district court’s denial of his motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Raising on its own initiative the statute of limitations set forth in the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L No. 104-132, 110 Stat. 1214, the district court found Petitioner’s Section 2255 motion untimely. The district court further concluded that Petitioner was not entitled to equitable tolling and therefore dismissed his motion. We find it unnecessary to decide whether the district court erred in sua sponte raising the AEDPA’s statute of limitations, because we conclude that Petitioner was entitled to equitable tolling.
In 1992, Petitioner was tried and convicted of distribution of crack cocaine and sentenced to 240 months imprisonment. He unsuccessfully appealed his conviction and sentence. United States v. Soloman, case 92-3892,
On January 27, 1997, Petitioner filed a motion in the district court requesting transcripts from his criminal case in order to file a Section 2255 motion. Attached to Petitioner’s motion was a completed Application to Proceed in Forma Pauperis. Petitioner indicated on this application that he was filing a motion pursuant to Section 2255.
On April 10, 1997, Petitioner filed a motion in the district court entitled “Motion of Notification of Intent to File 28 U.S.C. § 2255 Habus [sic] Corpus to Vacate, Set Aside, or Correct Sentence.” In this motion, Petitioner states that he intends to file a Section 2255 motion but “[d]ue to circumstances beyond his control, it is very unlikely that he will be able to file his ... motion before the April 24, deadline set by Congress.” Petitioner explains those circumstances as follows:
The reason for Inmate Solomon’s delay in filing this motion is due to his transfer from the Federal prison in Marion, IL., on March 19, 1997. (At which time he was in the progress of completing his 28 U.S.C. § 2255 motion.) He arrive[d] at the prison in Memphis, TN., on March 27, 1997, to secure his presence as a witness, for a trial that is to be held in Memphis on April 29, 1997. Due to inmate Solomon[’s] presence at the Federal prison at Memphis, [he w]as separated him from his legal work at the prison in Marion, IL., until his return. Also, due to inmate Solomon being tran[s]fer[red] from a high security prison to a low security one — has resulted in his being placefd] in segregated housing; Which has prevented] him from any access to any legal material.
On April 14, 1997, Petitioner filed a motion asking the district court to expedite its ruling on his previously filed motion for transcripts, which the district court had not yet addressed. In this motion, Petitioner again states his intent to file a Section 2255 motion, that he is attempting to file the motion by the April 24 deadline, and that without the transcripts he must rely on his memory to present his arguments. The district court took no action on Petitioner’s requests for transcripts.
On June 26, 1997, Petitioner filed his Section 2255 motion in which he raises eight claims challenging his conviction. Petitioner signed and dated his motion on June 22, 1997. On August 27, 1997, the district court issued an order directing the government to file a response to the petition. The government filed its response on September 30, 1997, addressing only the merits of Petitioner’s claims.
After Petitioner filed a reply to the government’s response on November 21, 1997, he filed additional motions asking the district court to stay the proceedings, grant his request for transcripts, and allow him time to review the transcripts and amend his Section 2255 motion if necessary. On March 2, 1999, almost fifteen months after Petitioner filed his reply and without addressing the motions Petitioner filed in the interim or his January 27 and April 14, 1997 motions requesting transcripts, the district court referred Petitioner’s Section 2255 motion to a magistrate judge for disposition and/or recommendation.
Less than two weeks later, the magistrate judge filed his Report and Recommendation (“R & R”) in which he sua sponte raised the AEDPA’s statute of limitations and recommended that Petitioner’s
[Petitioner] has offered no explanation of why he delayed from May, 1993, to March, 1997, to prepare his § 2255 Motion, except his request for transcripts. There is no requirement that a § 2255 Motion be accompanied by transcripts, and Mr. Solomon eventually filed his Motion without them. He complains in his Response that he does not have the transcripts, but then proceeds to tell his story of what happened in the crime and what happened afterwards between himself and his trial attorney, none of which would be reflected in the transcripts.3
Petitioner filed objections to the R & R, contending that equitable tolling should apply under the circumstances presented.
On April 13, 1999, the district court issued a one and a half page order adopting and incorporating by reference the R & R. In the order, the district court states that it conducted “a de novo review of the record, especially in light of Mr. Solomon’s objections.” Despite the fact that the R & R did not address the merits of the petition, the court summarizes the magistrate judge’s opinion as “concluding] that none of the claims raised by defendant is meritorious and therefore recommending] that defendant’s Motion to Vacate be denied on its merits.”
Petitioner filed a motion for reconsideration on April 26, 1999, in which he again asserted reasons for his delay in filing his Section 2255 motion.
It does not appear from the record that Petitioner presented additional evidence. There apparently was some confusion among the parties after the district court’s May 22, 2003 order, however, regarding the issues the district court wanted them to address in their supplemental pleadings (perhaps because the magistrate judge recommended denial of the Section 2255 motion based on the statute of limitations but the district court referred to the merits of the petition when it adopted the R & R, or perhaps because of the discussion of Scott at the status conference). The district court therefore scheduled an additional status conference for May 10, 2004. Prior to the conference, on February 26, 2004, the government filed a “supplemental response” in which it argued that Scott does not apply to Section 2255 motions filed by federal prisoners.
On March 24, 2004, the district court issued an order denying Petitioner’s motion for reconsideration. The court concluded that Scott is inapplicable to Section 2255 motions and that the magistrate judge therefore correctly recommended the dismissal of Petitioner’s motion. The district court then identified the factors relevant to determining the appropriateness of equitable tolling set forth in Dunlap v. United States,
Petitioner thereafter filed an appeal and moved this Court for a certificate of ap-pealability. On November 22, 2004, this Court granted Petitioner’s request for a certificate of appealability with respect to the following issues:
1) Whether any issue regarding the timeliness of Petitioner’s Section 2255 motion was waived by the Government’s failure to raise a limitations defense in its response;
2) Whether any waiver by the Government was cured by the opportunities that Petitioner had to argue that his motion was timely;
3) Whether the limitations period should be tolled for equitable reasons.
Standard of Review
This Court reviews a district court’s decision on the issue of equitable tolling de novo where the facts are undisputed. Allen v. Yukins,
We apply the following factors to determine whether equitable tolling is appropriate: (1) the petitioner’s lack of notice of the filing requirement; (2) the petitioner’s lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one’s rights; (4) absence of prejudice to the respondent; and (5) the petitioner’s reasonableness in remaining ignorant of the legal requirement for filing his claim. Dunlap,
Petitioner concedes that he was aware of the AEDPA’s one-year grace period “at the turn of 1997.” Additionally, the government does not claim (and the district court did not find) any prejudice as a result of Petitioner’s delay in filing his petition. We therefore must focus our inquiry on the third and fifth factors in the five-prong test set forth above. See Vroman v. Brigano,
We will first consider Petitioner’s reasonableness in remaining ignorant of the AEDPA’s limitations period. As Petitioner informs us, he was ignorant of Congress’ adoption of a one-year limitations period for habeas petitions from April 1996, when the statute was enacted, until “the turn of 1997.” This delay does not appear unreasonable in light of Petitioner’s explanation that “[d]ue to the circumstances that exist at Marion, there is poor circulation of information on changing laws available to inmates.”
With respect to Petitioner’s diligence in pursuing his rights, Petitioner provides the following description of his activities after learning of the AEDPA’s limitations period. At the time, he was incarcerated in Marion, Illinois, where inmates gained access to the law library on a rotational basis.
On March 19,1997, Petitioner was transferred without his legal materials to a facility in OMahoma, where he was placed in administrative detention pending his transfer to Memphis, Tennessee. Upon learning that he was being transferred to Memphis to secure his presence as a witness in an upcoming trial, Petitioner immediately asked staff members at the Oklahoma facility to provide him with the address or phone number of the Clerk of the District Court in Cincinnati. According to Petitioner, he wanted to inform the court of his situation.
When he arrived at the Memphis facility — a low security prison — Petitioner was housed in segregated housing due to his maximum security classification. While he attempted to use the law library, he claims access was even more restricted than in Marion. Petitioner continued to seek the address or phone number of the Clerk of the District Court in Cincinnati, and eventually a staff member arranged for Petitioner to call the court. According to Petitioner, he explained his predicament to one of the court clerks and was advised by the clerk to file a “Notification of Intent”' to file his 2255 motion. Petitioner claims that he called the court a second time to learn how to caption the motion and what he should state in the body of the motion. Heeding that advice, on April 3,1997, Petitioner signed and forwarded to the district court his “Motion of Notification of Intent to File 28 U.S.C. § 2255 Habeas Corpus to Vacate, Set Aside, or Correct Sentence.” On May 29, 1997, Petitioner was returned to Marion and within a month completed his Section 2255 motion. These facts demonstrate that Petitioner diligently pursued his rights once he became aware of the AEDPA’s statute of limitations.
Relying on this Court’s decision in Cook,
We do not fault Petitioner for any delay in pursuing his rights based on his efforts — or lack thereof — before the one-year limitations period was enacted. As the magistrate judge noted in his R & R, prior to the enactment of the AEDPA, “a habeas petitioner could file at any time.” In fact, before the one-year statute of limitations was adopted, even a twenty-five year delay in filing a habeas petition did not bar its consideration, provided there was no prejudice to the government from the delay. See, e.g., Buchanon v. Mintzes,
Based on the above, we conclude that this is an appropriate case to equitably toll the AEDPA’s statute of limitations. Petitioner’s Section 2255 motion therefore is not time-barred and should be reviewed on its merits. Accordingly, the case will be remanded to the district court.
Petitioner argues that on remand this case should be reassigned to a different district court judge. Pursuant to 28 U.S.C. § 2106, we have the authority to order the reassignment of a case on remand. Reassignment, however, “is an ‘extraordinary power and should be rarely invoked ... Reassignments should be made infrequently and with the greatest reluctance.’ ” Sagan v. United States,
We conclude that reassignment is not necessary in this case. There is a benefit to having the district court judge who presided over the defendant’s trial review the defendant’s subsequently filed Section 2255 motion. It may not be necessary to call the district judge as a witness, as Petitioner suggests, because a district judge simply may rely on his or her recollections of the criminal proceedings in deciding a Section 2255 motion without testifying. See Blanton v. United States,
Accordingly, this matter is REMANDED to the United States District Court for the Southern District of Ohio for consideration of the merits of the petition for habe-as corpus relief.
Notes
. On April 25, 2006, the Supreme Court issued its decision in Day v. McDonough, - U.S. -,
.There was no statute of limitations governing the filing of habeas petitions when Petitioner's conviction and sentence became final. While Petitioner was serving his sentence, however, Congress enacted the AEDPA, which added a one-year limitations period for motions filed pursuant to Section 2255, as well as petitions for a writ of habeas corpus filed pursuant to Section 2254. 28 U.S.C. §§ 2244(d)(1) & 2255. The AEDPA became effective on April 24, 1996. Petitioners whose convictions became final before the enactment of the AEDPA were provided a one-year grace period until April 24, 1997, to file motions seeking habeas corpus relief. Hyatt v. United States,
. While transcripts may not be required, it certainly is understandable that a petitioner would like the transcripts to assist in his or her preparation of a habeas corpus petition.
. As indicated infra, the district court did not rule on Petitioner's motion for reconsideration until March 24, 2004.
. In Scott, a panel of this Court held, in the context of a petition filed pursuant to 28 U.S.C. § 2254, that the AEDPA’s statute of limitations is an affirmative defense that is waived if not timely raised.
. In his objections to the magistrate judge’s R & R, Petitioner described the process by which Marion inmates obtain legal materials:
Access to the Law Library is non-existence [sic]. Every unit has a cell-like room with less than a hundred law book[s] pertaining to Federal statutes only. There is a typ[e]writer that is shared with a connecting unit, and is available upon pre-request and only if an inmate in the connecting unit has not requeste[d] it first. In order to receive books with case citing, an inmate has to sent [sic] a note to the school department the night in advance, and is only allow[ed] three books a day. An inmate must cite the case number in order to receive the book the following day.
Dissenting Opinion
dissenting.
Congress imposed new and substantial restrictions on the writ of habeas corpus by its enactment of the landmark Antiter-rorism and Effective Death Penalty Act of 1996 (“AEDPA”). At issue in the present case is AEDPA’s one-year statute of limitations and its specific tolling provisions for petitions brought pursuant to 28 U.S.C. § 2255. Were it not for Dunlap v. United States,
I.
In 1992, petitioner-appellant Christopher Solomon was convicted in the United States District Court for the Southern District of Ohio of knowingly and intentionally possessing cocaine base (“crack”) with intent to distribute in violation of 21 U.S.C. § 841(a). In connection with petitioner’s timely appeal to this court, transcripts of the trial court proceedings were prepared and furnished to petitioner and/or his counsel. In May 1993, this court affirmed petitioner’s conviction and sentence in an unpublished order, United States v. Soloman, No. 92-3892,
Over four years later, on June 26, 1997, Solomon filed a pro se petition for a writ of habeas corpus pursuant to the rights afforded him by 28 U.S.C. § 2255. Solomon’s petition was a fill-in-the-blank form furnished by the United States District Court (AO 243, revised 5-85). It alleged ineffective assistance of counsel, among other claims, and attached a typewritten argument.
Solomon’s petition for a writ of habeas corpus was clearly untimely, pursuant to the plain language of 28 U.S.C. § 2255. Specifically, the habeas corpus provision under which petitioner seeks relief provides for the following one-year period of limitation and tolling periods:
A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of — •
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2255 ¶ 6. Congress added the one-year statutory period and its specific tolling provisions as part of AEDPA, effective April 24, 1996. Because Solomon filed his habeas petition after AEDPA’s effective date, AEDPA’s statute of limitations and its tolling provisions apply to this case. Lindh v. Murphy,
In the district court, and on appeal, petitioner does not argue any of the tolling provisions enacted by Congress. Rather, Solomon asserts that his untimely habeas corpus petition should be excused because of the judicially-created doctrine of “equitable tolling.”
Recently, in Arlington Central Sch. Dist. Bd. of Ed. v. Murphy, 548 U.S.-,
We have “stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.” Connecticut Nat. Bank v. Germain,503 U.S. 249 , 253-254,112 S.Ct. 1146 ,117 L.Ed.2d 391 (1992). When the statutory “language is plain, the sole function of the courts — at least where the disposition required by the text is not absurd— is to enforce it according to its terms.” Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A.,530 U.S. 1 , 6,120 S.Ct. 1942 ,147 L.Ed.2d 1 (2000) (quoting United States v. Ron Pair Enterprises, Inc.,489 U.S. 235 , 241,109 S.Ct. 1026 ,103 L.Ed.2d 290 (1989), in turn quoting Caminetti v. United States,242 U.S. 470 , 485,37 S.Ct. 192 ,61 L.Ed. 442 (1917); internal quotation marks omitted.)
Id.,
As Justice Scalia has further elaborated: The text is the law, and it is the text that must be observed. I agree with Justice Holmes’s remark, quoted approvingly by Justice Frankfurter in his article on the construction of statutes: “Only a day or two ago — when counsel talked of the intention of a legislature, I was indiscreet enough to say I don’t care what their intention was. I only
want to know what the words mean.”28 And I agree with Holmes’s other remark, quoted approvingly by Justice Jackson: “We do not inquire what the legislature meant; we ask only what the statute means.”29
ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW (PRINCETON UNIY. PRESS 1997).
To date, the Supreme Court has yet to rule whether the judiciary is authorized to rewrite 28 U.S.C. § 2255 to include other “equitable” grounds of tolling not provided for by Congress. See Pace v. DiGuglielmo,
Moreover, the Court has rejected the argument that “equitable tolling” should apply to plain, specific, and detailed statutes of limitation. In United States v. Brockamp,
The taxpayers rest their claim for equitable tolling upon Irwin v. Department of Veterans Affairs,498 U.S. 89 ,111 S.Ct. 453 ,112 L.Ed.2d 435 (1990), a case in which this Court considered the timeliness of an employee’s lawsuit charging his Government employer with discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The Court found the lawsuit untimely, but nevertheless tolled the limitations period. It held that the “rule of equitable tolling” applies “to suits against the Government, in the same way that it is applicable” to Title VII suits against private employers.498 U.S., at 94-95 ,111 S.Ct. 453 . The Court went on to say that the “same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” Id., at 95-96,111 S.Ct. 453 .
The taxpayers, pointing to Irwin, argue that principles of equitable tolling would have applied had they sued private defendants, e.g., had they sought restitution from private defendants for “Money Had and Received.” See C. Keigwin, Cases in Common Law Pleading 220 (2d ed.1934). They add that given Irwin’s language, there must be a “presumption” that limitations periods in tax refund suits against the Government can be equitably tolled. And, they say, that “presumption,” while “rebuttable,” has not been rebutted. They conclude that, given Irwin, the Ninth Circuit correctly tolled the statutory period for “equitable” reasons.
In evaluating this argument, we are willing to assume, favorably to the taxpayers but only for argument’s sake, that a tax refund suit and a private suit for restitution are sufficiently similar to warrant asking Irwin’s negatively phrased question: Is there good reason to believe that Congress did not want the equitable tolling doctrine to apply? But see Flora v. United States,362 U.S. 145 , 153-154,80 S.Ct. 630 ,4 L.Ed.2d 623 (1960) (citing Curtis’s Administratrix v. Fiedler,2 Black 461 , 479,17 L.Ed. 273 (1863)) (distinguishing common-law suit against the tax collector from action of assumpsit for money had and received); George Moore Ice Cream Co. v. Rose,289 U.S. 373 , 382-383,53 S.Ct. 620 ,77 L.Ed. 1265 (1933); see also Plumb, Tax Refund Suits Against Collectors of Internal Revenue, 60 Harv. L.Rev. 685 687 (1947) (describing collector suit as a fiction solely designed to bring the Government into court). We can travel no further, however, along Irwin’s road, for there are strong reasons for answering Irwin’s question in the government’s favor.
Section 6511 sets forth its time limitations in unusually emphatic form. Ordinarily limitations statutes use fairly simple language, which one can often plausibly read as containing an implied “equitable tolling” exception. See, e.g., 42 U.S.C. § 2000e-16(c) (requiring suit for employment discrimination to be filed “[w]ithin 90 days of receipt of notice of final [EEOC] action ... ”). But § 6511 uses language that is not simple. It sets forth its limitations in a highly detailed technical manner, that, linguistically speaking, cannot easily be read as containing implicit exceptions.
* * *
To read an “equitable tolling” provision into these provisions, one would have to assume an implied exception for tolling virtually every time a number appears.To do so would work a kind of linguistic havoc. Moreover, such an interpretation would require tolling, not only procedural limitations, but also substantive limitations on the amount of recovery — a kind of tolling for which we have found no direct precedent. Section 6511’s detail, its technical language, the iteration of the limitations in both procedural and substantive forms, and the explicit listing of exceptions, taken together, indicate to us that Congress did not intend courts to read other unmentioned, open-ended, “equitable” exceptions into the statute that it wrote.
Brockamp,
A year later, in United States v. Beggerly,
Furthermore, as the Supreme Court cautioned in Baldwin County Welcome Center v. Brown,
Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants. As we stated in Mohasco Corp. v. Silver,447 U.S. 807 , 826,100 S.Ct. 2486 ,65 L.Ed.2d 532 (1980), “in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.”
In the civil arena, the Michigan Supreme Court has cited separation of powers concerns in rejecting the application of equitable tolling to a clear and unambiguous statute of limitation:
Indeed, if a court is free to cast aside, under the guise of equity, a plain statute such as § 3145(1) simply because the court views the statute as “unfair,” then our system of government ceases to function as a representative democracy. No longer will policy debates occur, and policy choices be made, in the Legislature. Instead, an aggrieved party need only convince a willing judge to rewrite the statute under the name of equity. While such an approach might be extraordinarily efficient for a particular litigant, the amount of damage it causes to the separation of powers mandate of our Constitution and the overall structure of our government is immeasurable.
Devillers v. Auto Club Ins. Ass’n,
Absent a constitutional violation, it is our role as judges to faithfully ascertain and give effect to the laws as written by Congress. We must not succumb to the temptation to rewrite the law to comport with our subjective notions of fairness and equity. Otherwise, our nation’s laws enacted by Congress are meaningless. See ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 112 (Free Press 1997).
Were I permitted to do so, I would apply the rationale of Brockamp and Beggerly to the limitation period of 28 U.S.C. § 2255 specified by Congress in its enactment of AEDPA. On this issue, I agree with the following observations of the District Court for the Eastern District of Michigan, which stated:
Section 2255 expressly lists four different events, the latest of which determines when the limitations period begins to run. 28 U.S.C. § 2255. The detail of § 2255 and its direct and express determination of when the time limit begins indicates that Congress did not intend to permit courts to read other unmentioned and open-ended equitable exceptions into the statute.
Giles v. United States,
In Dunlap v. United States, our court did not cite or attempt to distinguish Brockamp and Beggerly. Instead, after relying on Irwin v. Dep’t of Veterans Affairs,
First, unlike Irwin, the present case is not a civil action against the government seeking civil remedies, but rather a collateral attack on a criminal conviction through a petition for habeas corpus. The collateral review of criminal convictions involve considerations that are considerably different than actions against the government for damages or other civil relief.
Second, the subsequent Supreme Court decisions of Brockamp and Beggerly have clarified the limited scope of Irwin. In particular, Brockamp held that judicial tolling is not permitted when Congress has enacted a detailed and specific statute of limitations. Later, in Beggerly, the Supreme Court held that judicial tolling may not be imposed if such tolling is contrary to the text of the statute. Brockamp and Beggerly clearly restrain the open-ended use of judicial tolling envisioned and applied by some courts in all actions in which the government is a party.
Third, and most fundamentally, the separation of powers mandated by our Constitution is violated when, for perceived reasons of “fairness” or equity, the judicial branch rewrites clear and unambiguous laws enacted by the legislature. Without pretense, and “for reasons of equity,” this is what the courts have done in imposing “equitable tolling” to the specific and de
III.
Nonetheless, I recognize that in Dunlap v. United States,
In Andrews v. Orr,
Significantly, our court stands alone within the circuits in employing our peculiar test to evaluate the timeliness of petitions for habeas corpus. The other circuits that recognize some form of equitable tolling to 28 U.S.C. § 2255 or 28 U.S.C. § 2254 do so, for the most part, only for “extraordinary circumstances” beyond the petitioner’s control. See, e.g., Satterfield v. Johnson,
Our unique test balances the following considerations:
(1) the petitioner’s lack of [actual] notice of the filing requirement;
(2) the petitioner’s lack of constructive knowledge of the filing requirement;
(3) the petitioner’s diligence in pursuing his rights;
(4) absence of prejudice to the respondent; and
(5) the petitioner’s reasonableness in remaining ignorant of the legal requirement for filing his claim.
Dunlap,
After applying the Dunlap!Andrews factors to the present case, I come to a conclusion which is the opposite of that reached by the majority.
1. Petitioner’s Lack of Actual Notice of the Filing Requirement.
Solomon admits that “at the turn of 1997” he knew that, by operation of the judicially-created one-year grace period accepted by most courts, he had only until April 24, 1997, to file his habeas corpus petition. The propriety of the one-year grace period that many courts have imposed for constitutional reasons, see Hyatt v. United States,
Because Solomon concedes actual knowledge of the filing deadline “at the turn of 1997,” his constructive knowledge after that time is not at issue. Before then, AEDPA’s statute of limitation and tolling exceptions are “clear provisions” that afforded constructive notice to him. Allen v. Yukins,
3. The Petitioner’s Diligence in Pursuing His Rights.
The majority concludes that Solomon was diligent in pursuing his rights. I respectfully disagree. Solomon waited over four years after this court affirmed his conviction and sentence to file his petition for habeas corpus. In my view, Solomon’s delay of over four years “to enhance his knowledge of the law, while raising his level of formal education” was not diligent. As we stated in Cook v. Stegall,
In addition, I am not persuaded by Solomon’s argument regarding his alleged lack of access to his previously furnished transcripts. It is apparent from his petition filed on June 26, 1997, that the transcripts were not necessary for its filing. See Brown v. Shannon,
Aso, as argued by the government, transfers between prisons are routine and should be expected. Siggers-El v. Barlow,
Finally, Solomon alleges that while in prison he had a telephone conversation with the Clerk of the United States District Court for the Southern District of Ohio. According to Solomon, the Clerk advised him to file a “Notification of Intent to File a 2255 Motion.” I find this claim not to be credible. It lacks evidentiary support and is contrary to the practice and custom of the clerk not giving legal advice to litigants and prisoners. In any event, in Allen,
This court has held, however, that a petitioner’s reliance on the unreasonable and incorrect advice of his or her attorney is not a ground for equitable tolling. Jurado v. Burt,337 F.3d 638 , 644-45 (6th Cir.2003). Athough not directly on point, Jurado suggests that equitable tolling is not appropriate in this case. In Jurado, the attorney (unintentionally) misled the petitioner; in the present case, Alen’s attorney simply admitted that he was not an expert in federal habeas procedures.
See also United States v. Heller,
4. Absence of Prejudice to Respondent.
The record contains no documented evidence of actual prejudice to the government. However, some hardship to the government is likely because of the staleness of the evidence.
5. The Petitioner’s Reasonableness in Remaining Ignorant of the Legal Requirements for Filing his Claim.
The “reasonableness of the petitioner’s ignorance” (to the extent that this nonse-
After balancing the five factors set forth in Andrews v. Orr, I conclude that Solomon has not sustained his burden of establishing grounds for equitable tolling. See Allen,
IV.
Finally, for the reasons stated in Day v. McDonough, — U.S. —,
V.
For these reasons, I respectfully dissent. I would affirm the dismissal of Solomon’s untimely petition for habeas corpus.
. In Dunlap, a two-judge majority purportedly held that, because 28 U.S.C. § 2255 was a statute of limitations, it was therefore subject to equitable tolling. As noted by Judge Siler
. Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 527, 538 (1947).
. Oliver Wendell Holmes, Collected Legal Papers 207 (1920), quoted in Schwegmann Bros. v. Calvert Distillers Corp.,
. For this reason, I express no opinion on the judicially-created one-year grace period.