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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 2nd 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 2nd 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 was still almost 14 months in which to do so. But the attorney also said he had learned that the Dominican Republic would accept Baldayaque if he were deported and 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 ultimately filed a � 2255 petition pro se, well after the one-year limitation period had expired. U.S. District Judge Janet B. Arterton denied Mr. Baldayaque’s petition as untimely under the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act (AEDPA). And the judge said Baldayaque could not fault his attorney because 2nd Circuit case law always precludes equitable tolling due to the extraordinary actions of the petitioner’s lawyer. The chief case cited by Judge Arterton was Smaldone v. Senkowski, 273 F.3d (2d Cir. 2001), where the 2nd Circuit held that attorney error is not enough “to create the extraordinary circumstances equitable tolling requires.” EXCEPTION CONSIDERED But writing for the 2nd Circuit on Baldayaque’s appeal, Senior Judge Thomas J. Meskill said, “We do not believe that Smaldone‘s holding is so far-reaching.” Meskill said that Smaldone “does not dictate that the actions of petitioner’s attorney could NEVER constitute ‘extraordinary circumstances.’ “ “It is not inconsistent to say that attorney error NORMALLY will not constitute the extraordinary circumstances required to toll the AEDPA limitations period while acknowledging that at some point, an attorney’s behavior may be so outrageous or so incompetent as to render it extraordinary,” Meskill said. In contrast to the error made by the attorney in Smaldone, who mistakenly believed that the limitation period was “reset” by the filing of a state petition, Judge Meskill said 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.” In ordering that the case be remanded to the lower court, Meskill went on to say that the petitioner must show more than extraordinary circumstances to invoke equitable tolling: “A petitioner must also show that he acted with reasonable diligence, and that the extraordinary circumstances caused his petition to be untimely.” Senior Judge Wilfred Feinberg joined in the opinion. Judge Dennis Jacobs concurred in a separate opinion. Gates Garrity-Rokous and Stephen J. Lable of Wiggin & Dana in New Haven, Conn., represented Baldayaque. Assistant U.S. Attorneys Jeffrey A. Meyer and Jonathan Biran represented the government.

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