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American Lawyer Media News Service New York-Attorney conduct that is “sufficiently egregious” may be enough to toll the statute of limitations for filing a petition for a writ of habeas corpus, the 2d U.S. Circuit Court of Appeals has ruled. Clarifying the standard for equitable tolling under the federal habeas statute, 28 U.S.C. 2255, the 2d Circuit said that a combination of due diligence by the petitioner and the “extraordinary circumstances” created by an attorney’s failure may rescue a petition that is untimely under the one-year statute of limitations. The court reversed a District of Connecticut judge’s refusal to grant the petition in Baldayaque v. United States. Heriberto Baldayaque, a citizen of the Dominican Republic, was sentenced to serve 14 years in prison in 1996 after pleading guilty to conspiracy to deal heroin. Shortly after his appeal was denied, Baldayaque’s wife retained lawyer Burton Weinstein for $5,000 to represent him. Weinstein allegedly told Baldayaque’s wife that it was too late to file a petition, even though there were still almost 14 months in which to do so. But the attorney also said that he had learned that the Dominican Republic would accept Baldayaque if he were deported and that the client might be deported early because he was sick with tuberculosis. The attorney made an application for immediate deportation, but a district court said it lacked jurisdiction to issue such an order, and found that the motion, even if “cognizable,” was untimely. After the district court denied his motion, Weinstein wrote a letter to Baldayaque telling him the motion had been denied and he saw “no basis for appeal.” The letter was returned to Weinstein as undeliverable. Weinstein then spoke to an associate of Baldayaque’s wife by phone, saying, “There is nothing we can do now.” Baldayaque filed a Sec. 2255 petition pro se, well after the one-year limitation period had expired. U.S. District Judge Janet B. Arterton denied the petition as untimely under the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996. Senior Judge Thomas J. Meskill noted that “Weinstein’s actions were far enough outside the range of behavior that reasonably could be expected by a client that they may be considered extraordinary.”

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