Equitable Tolling in the 10th Circuit

Earlier this month, the 10th Circuit weighed in on equitable tolling. In Fleming v. Evans, 481 F.3d 1249 (10th Cir. 2007), the attorney made repeated assurances to the petitioner that his habeas appeal would be filed "within a week or two" over the course of the year. Petitioner even went so far as to prepare his own petition close to the deadline and provided it to his attorney to file. No petition was ever filed, despite counsel being hired only two weeks after the original conviction became final. The court reversed the district court's dismissal of the petition, holding that "sufficiently egregious misconduct on the part of a habeas petitioner's counsel may justify equitable tolling of the AEDPA limitations period."

The 10th Circuit joins what now seems to be a bare majority of the Circuits holding that equitable tolling is sometimes appropriate. See Baldayaque v. United States, 338 F.3d 145 (2d Cir. 2003); Brown v. Shannon, 322 F.3d 768 (3d Cir. 2003); United States v. Wynn, 292 F.3d 226 (5th Cir. 2002), United States v. Martin, 408 F.3d 1089 (8th Cir. 2005); Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003).

However, petitioners should not yet rejoice -- while these cases promise to be another argument to throw at the wall, it may be only the most extraordinary case where the limitation period is in fact tolled (as the 10th Circuit showed yesterday). See Everson v. Kansas Dept. of Corrections, 2007 WL 1430305 (10th Cir. 2007)