Thursday, January 27, 2011

Failure to file appeal doesn't warrant equitable tolling

Gray v. Lewis, No. 5:10-HC-2016-FL, 2011 WL 147299 (E.D.N.C. Jan. 18, 2011):

Petitioner argues he is entitled to equitable tolling of the statute of limitations because he instructed his trial counsel to file a notice of appeal, and his counsel failed to follow his instruction.  Petitioner has not provided any facts regarding how his counsel's failure to file a notice of appeal prevented him from filing a timely MAR [motion for appropriate relief].  Additionally, petitioner has not provided any explanation for the nearly ten year delay in filing his MAR. Rather, the court finds that with the exercise of due diligence, petitioner would have discovered that his counsel failed to file an appeal well before the expiration of the statutory period, and certainly well before he filed his MAR in 2009.  See United States v. Bear, No. 1:06CR00018, 2:05CR00029, 2010 WL 2773309, *2-3 (W.D.Va.2010), appeal dismissed, Nos 10-7032, 10-7033, 2010 WL 4024929 (4th Cir. Oct. 14, 2010) (unpublished).  Accordingly, petitioner has not demonstrated that “extraordinary circumstances” beyond his control prevented him from complying with the statutory time limit. See Rouse, 339 F.3d at 246. Thus, petitioner is not entitled to equitable tolling and his petition is time-barred.

[Ed. note:  It is interesting that the failure to note a timely appeal is brought as an equitable tolling principle as well as an underlying claim for habeas relief.]

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