14‐1513 Martinez v. Superintendent of Eastern Correctional Facility

1

2 In the 3 United States Court of Appeals 4 For the Second Circuit 5 ________ 6 7 AUGUST TERM, 2015 8 9 ARGUED: AUGUST 26, 2015 10 DECIDED: NOVEMBER 10, 2015 11 12 No. 14‐1513 13 14 DAVID MARTINEZ, 15 Petitioner‐Appellant, 16 17 v. 18 19 SUPERINTENDENT OF EASTERN CORRECTIONAL FACILITY, 20 Respondent‐Appellee.1 21 ________ 22 23 Appeal from the United States District Court 24 for the Eastern District of New York. 25 No. 11 Civ. 4330 – Nina Gershon, Judge. 26 ________ 27 28 Before: WALKER, JACOBS, and LIVINGSTON, Circuit Judges. 29 ________ 30 31 Petitioner‐appellant David Martinez appeals from the decision

32 of the United States District Court for the Eastern District of New 1 The Clerk of the Court is directed to amend the caption as set forth above. 2 No. 14‐1513

1 York (Gershon, J.), denying his petition for a writ of habeas corpus.

2 [A 1] Although Martinez seeks to challenge his 2007 New York state

3 conviction for charges including murder in the second degree, he

4 failed to file his petition within the one‐year limitations period

5 provided by the Antiterrorism and Effective Death Penalty Act of

6 1996,

(d)(1) (2015) (“AEDPA”). The district court

7 held that Martinez was not entitled to equitable tolling of the statute

8 of limitations because he had not acted with reasonable diligence

9 during the period for which he sought tolling. [A 10] We conclude

10 that the court’s analysis of Martinez’s degree of diligence is

11 premised upon a misapplication of our decision in Doe v. Menefee,

12

(2d Cir. 2004). Accordingly, we VACATE the district

13 court’s order dismissing the petition and REMAND the case for

14 further proceedings consistent with this opinion.

15 ________ 16 17 RANDOLPH Z. VOLKELL, Law Office of Randolph 18 Z. Volkell, Merrick, NY, for Petitioner‐Appellant.

19 DONALD J. BERK, Assistant District Attorney, 20 Nassau County (Madeline Singas, District 21 Attorney, Nassau County, Tammy J. Smiley, 22 Assistant District Attorney, on the brief), Mineola, 23 NY, for Respondent‐Appellee.

24 ________ 25 3 No. 14‐1513

1 JOHN M. WALKER, JR., Circuit Judge:

2 Petitioner‐appellant David Martinez appeals from the decision

3 of the United States District Court for the Eastern District of New

4 York (Gershon, J.), denying his petition for a writ of habeas corpus.

5 [A 1] Although Martinez seeks to challenge his 2007 New York state

6 conviction for charges including murder in the second degree, he

7 failed to file his petition within the one‐year limitations period

8 provided by the Antiterrorism and Effective Death Penalty Act of

9 1996,

(d)(1) (2015) (“AEDPA”). The district court

10 held that Martinez was not entitled to equitable tolling of the statute

11 of limitations because he had not acted with reasonable diligence

12 during the period for which he sought tolling. [A 10] We conclude

13 that the court’s analysis of Martinez’s degree of diligence was

14 premised upon a misapplication of our decision in Doe v. Menefee,

15

(2d Cir. 2004). Accordingly, we VACATE the district

16 court’s order dismissing the petition and REMAND the case for

17 further proceedings consistent with this opinion.

18 BACKGROUND

19 On July 20, 2007, David Martinez entered a guilty plea in New

20 York state court to charges including attempted murder, robbery,

21 and assault. [A 1‐2, RB 3] On February 11, 2008, he was sentenced to

22 twelve years’ imprisonment, five years’ post‐release supervision,

23 and restitution. [RB 5] He was then transferred to the custody of the 4 No. 14‐1513

1 New York State Department of Corrections and Community

2 Supervision. [RB 6] Martinez immediately hired an attorney to seek

3 post‐conviction relief, but this attorney evidently showed a greater

4 interest in collecting fee payments than in providing Martinez with

5 adequate representation. The attorney missed the habeas petition

6 deadline and was barely responsive to Martinez’s case, as the

7 following facts demonstrate.

8 On March 3, 2008, three weeks after his sentencing, Martinez

9 and his mother hired attorney Anthony Denaro to handle his post‐

10 conviction relief. [BB 3] Denaro, Martinez, and Martinez’s mother

11 executed an agreement for legal services. [A 3] They agreed upon a

12 retainer payment of $5,000, and Martinez’s mother paid $2,000 that

13 day. [RB 6] Denaro accepted the money and then did virtually

14 nothing for almost a year. Between March 2008 and January 2009,

15 the only communication that Martinez received from Denaro was a

16 November 28, 2008 billing statement. [BB 3]

17 Denaro claims his firm sent Martinez two letters in early 2009,

18 more than ten months after Martinez hired him: a letter from Denaro

19 on January 28, 2009, enclosing all court documents in his possession,

20 and a letter from Denaro’s colleague, Jack Evans, on February 12,

21 2009, requesting a detailed statement of the facts and circumstances

22 in his case. [A 3, 14] Denaro also claims he received a letter on

23 March 3, 2009 from Martinez, answering Evans’ request. [BB 3] 5 No. 14‐1513

1 None of these letters are in the record, however, and Martinez

2 claims Denaro sent him “nothing” until March 4, 2009. [A 3]

3 On March 4, 2009, more than a year after Denaro’s retention,

4 Evans sent Martinez a letter requesting information to be used in the

5 filing of a coram nobis petition. [A 4] The letter referenced

6 documents and information previously provided by Martinez. [A

7 45] At no point in this letter did Evans mention that, because

8 Martinez’s judgment became final on March 12, 2008, the one‐year

9 deadline for filing a petition for habeas corpus would expire in just

10 over a week. [A 4] On March 6, 2009, Denaro’s firm also sent

11 Martinez a second billing statement. [BB 3]

12 From March to April of 2009, Martinez and Evans discussed

13 the coram nobis petition. On March 16, 2009, Martinez responded to

14 Evans. [A 4] On April 2, 2009, Evans met with Martinez’s mother.

15 [BB 4] The following day, the firm sent Martinez a third billing

16 statement. [BB 4] On April 6, 2009, Evans sent Martinez a letter

17 describing the possible results of a coram nobis petition. [A 4] On

18 April 12, 2009, Denaro met with Martinez’s mother and advised her

19 that it would be very difficult to formulate a meritorious petition.

20 [RB 7] On April 30, 2009, Evans wrote Martinez to tell him that he

21 was leaving Denaro’s firm. [A 4] That letter referenced “the two

22 most recent letters you sent to me regarding your case.” [A 48] 6 No. 14‐1513

1 After Evans left, Martinez corresponded with Denaro. On

2 June 18, 2009, Martinez wrote to Denaro. [BB 4] On June 25, 2009,

3 Denaro wrote back and assured Martinez that he was in the process

4 of “determining whether appeal should be taken to the federal

5 court.” [A 4] Denaro emphasized his “forty‐five years [of] legal

6 experience” and claimed a record of “favorable results.” [A 49] On

7 October 16, 2009, Martinez wrote again to Denaro. [BB 4] On

8 November 13, 2009, nearly five months after his last communication

9 and more than eight months since the passing of the habeas

10 deadline, Denaro responded to “provide [Martinez] with the status

11 of [his] motion to withdraw [his] guilty plea and federal habeas

12 corpus relief.” [A 4‐5, 51] Denaro stated, “Please be assured that we

13 are working very hard to make this happen for you.” [A 51] On

14 November 25, 2009, Martinez wrote again to Denaro. [BB 4]

15 Denaro’s next and last communication to Martinez, sent on January

16 15, 2010, was a fourth billing statement. [BB 4]

17 On August 3, 2010, Martinez filed pro se for a writ of error

18 coram nobis, challenging multiple aspects of his sentence. [A 2] On

19 December 8, 2010, the New York Supreme Court modified the

20 restitution amount but denied all other claims. People v. Martinez,

21 Ind. No. 889N‐07, Motion No. C‐680 (Sup. Ct. Nassau County, Dec.

22 8, 2010) (Ayres, J.). [A 2, RB 2] On May 10, 2011, the Appellate

23 Division, Second Department (Lott, J.), denied Martinez leave to 7 No. 14‐1513

1 appeal the denial. [A 2, RB 9] On August 1, 2011, his application for

2 leave to appeal to the New York Court of Appeals was denied. [A 2]

3 On September 27, 2010, while waiting for a decision on his

4 coram nobis petition, Martinez complained about Denaro’s conduct

5 to the Second Department Grievance Committee, Tenth Judicial

6 District (“Grievance Committee”). [A 5] On December 21, 2010 and

7 August 9, 2011, he submitted additional letters to the Grievance

8 Committee. [A 5] He also reached out to The Lawyers’ Fund for

9 Client Protection but was informed on October 7, 2010 that the

10 organization would be unable to help him. [A 5] On November 18,

11 2011, the Grievance Committee determined that Denaro had

12 breached the Rules of Professional Conduct and admonished him

13 for his failure to timely pursue Martinez’s case. [A 5]

14 On August 30, 2011, Martinez filed pro se for a writ of habeas

15 corpus in the United States District Court for the Eastern District of

16 New York. [A 2] He sought a reduction of his sentence to ten years’

17 imprisonment and either reduction or elimination of post‐release

18 supervision. [A 2‐3] His petition alleged, inter alia, ineffective

19 assistance of counsel. [BB 5, RB 10‐11] The district court (Feuerstein,

20 J.) issued an Order to Show Cause, directing Martinez to explain

21 why his petition should not be dismissed as time‐barred. [A 2]

22 On April 15, 2014, after reviewing submissions from both

23 parties, the district court dismissed the petition as time‐barred. [A 8 No. 14‐1513

1 11, RB 11] The district court concluded that the one‐year habeas

2 limitations period began when Martinez’s judgment became final on

3 March 12, 2008, and that his petition was therefore time‐barred as of

4 March 12, 2009. [RB 11] The district court found Martinez ineligible

5 for equitable tolling because, although Denaro’s effective

6 abandonment of Martinez constituted an extraordinary

7 circumstance preventing him from timely filing his petition,

8 Martinez had not acted with the required reasonable diligence. [RB

9 11, A 10] On July 31, 2014, we granted a certificate of appealability

10 on the question of whether Martinez was entitled to equitable

11 tolling. [RB 2‐3]

12 DISCUSSION

13 We review de novo a district court’s denial of equitable tolling

14 when premised on a finding that “governing legal standards would

15 not permit equitable tolling in the circumstances.” Belot v. Burge, 490

(2d Cir. 2007); see Dillon v. Conway,

, 363

17 (2d Cir. 2011) (per curiam).

18 The district court dismissed Martinez’s petition as untimely

19 under AEDPA. That act places a one‐year limitation on a prisoner’s

20 right to seek federal review of a state criminal conviction pursuant

21 to

. Smith v. McGinnis,

(2d Cir. 2000)

22 (per curiam). The statute of limitations “runs from the latest of a

23 number of triggering events, including the date on which the 9 No. 14‐1513

1 judgment became final by the conclusion of direct review or the

2 expiration of the time for seeking such review.” Rivas v. Fischer, 687

(2d Cir. 2012) (internal quotation marks omitted).

4 AEDPA’s time constraint “promotes judicial efficiency and

5 conservation of judicial resources” and “safeguards the accuracy of

6 state court judgments by requiring resolution of constitutional

7 questions while the record is fresh.” Acosta v. Artuz,

,

8 123 (2d Cir. 2000).

9 A petitioner may secure equitable tolling of the limitations

10 period in certain “rare and exceptional circumstance[s].” Smith, 208

11 F.3d at 17 (internal quotation marks omitted); see Holland v. Florida,

12

(2010). The petitioner must establish that (a)

13 “extraordinary circumstances” prevented him from filing a timely

14 petition, and (b) he acted with “reasonable diligence” during the

15 period for which he now seeks tolling. Smith,

.

16 Attorney error generally does not rise to the level of an

17 “extraordinary circumstance.” Baldayaque v. United States,

(2d Cir. 2003). However, attorney negligence may

19 constitute an extraordinary circumstance when it is “so egregious as

20 to amount to an effective abandonment of the attorney‐client

21 relationship.” Rivas, 687 F.3d at 538.

22 Here, we agree with the district court that an extraordinary

23 circumstance impeded Martinez’s timely filing because Denaro 10 No. 14‐1513

1 “effectively abandoned” his client. [A 9] The focus of this appeal,

2 however, is on the district court’s holding, based upon our decision

3 in Doe v. Menefee,

(2d Cir. 2004), that Martinez was

4 ineligible for equitable tolling because he had not acted with

5 “reasonable diligence.” [A 10]

6 As we explain below, in assessing whether Martinez’s level of

7 diligence rendered him ineligible for equitable tolling, the district

8 court premised its conclusions on a misapplication of Doe. The

9 district court specifically should have (a) considered the effect of

10 Denaro’s misleading conduct on Martinez’s ability to evaluate his

11 lawyer’s performance, (b) inquired further into Martinez’s financial

12 and logistical ability to secure alternative legal representation, (c)

13 inquired further into Martinez’s ability to comprehend legal

14 materials and file his own petition, and (d) tailored its “reasonable

15 diligence” analysis to the circumstances of a counseled litigant.

16 I. The Doe Factors

17 To qualify for equitable tolling, a petitioner must “act as

18 diligently as reasonably could have been expected under the

19 circumstances.” Baldayaque,

(emphasis in original). Doe

20 designated four factors relevant to a diligence inquiry “in the

21 attorney incompetence context”: (1) “the purpose for which the

22 petitioner retained the lawyer,” (2) “his ability to evaluate the

23 lawyer’s performance,” (3) “his financial and logistical ability to 11 No. 14‐1513

1 consult other lawyers or obtain new representation,” and (4) “his

2 ability to comprehend legal materials and file the petition on his

3 own.” Doe,

.

4 The first Doe factor, as the district court acknowledged,

5 supports a finding in favor of Martinez. [A 10] Martinez hired

6 Denaro to handle all his post‐conviction relief, including a potential

7 federal habeas petition. [A 10] The timely filing of that petition thus

8 fit squarely within Martinez’s reasonable expectations.

9 The second Doe factor, contrary to the district court

10 conclusion, also supports a finding in favor of Martinez. Martinez’s

11 ability to evaluate his lawyer’s performance was compromised by

12 Denaro’s active concealment of his firm’s poor performance. The

13 firm sent numerous billing statements and requests for information,

14 implying ongoing work. [BB 3‐4] Letters from the firm also

15 consistently contained reassuring language. A May 4, 2009 letter, for

16 example, promised the firm would “do what we can to help you.”

17 [A 45] An April 30, 2009 letter said the firm was “mak[ing] every

18 effort to assist you.” [A 48] A June 25, 2009 letter stated that Denaro

19 had “thoroughly investigated and researched the appeal issues” and

20 could bring to bear “forty‐five years [of] legal experience” and a

21 “record [of] favorable results” on Martinez’s behalf. [A 49] A

22 November 13, 2009 letter said that the firm was “working very hard

23 to make this happen for you.” [A 51] Although Denaro often left 12 No. 14‐1513

1 Martinez waiting for months for updates on the case, the evident

2 tendency of Denaro’s correspondence would have been to lull

3 Martinez into believing that the firm was hard at work during

4 periods of non‐communication.

5 The district court found that “[t]here is no reason to believe

6 that Mr. Martinez could not evaluate Mr. Denaro’s performance”

7 because Martinez was able to critically analyze the lawyer’s work in

8 complaints filed years later. [A 10] However, the district court

9 should have considered whether Denaro’s written

10 misrepresentations reasonably could have impeded and delayed

11 Martinez’s ability to evaluate his lawyer’s performance at the time

12 that it mattered and without the benefit of hindsight.

13 With respect to the third Doe factor, the record contains no

14 clear indication that Martinez had the financial ability to easily

15 obtain another lawyer, even if he had realized that his counsel had

16 abandoned him. In addition, his incarceration would have created

17 logistical obstacles. The district court asserted without further

18 elaboration that Martinez “could have hired a new attorney,” [A 10]

19 but we do not see how this capability has been established on the

20 record. We agree with Martinez’s contention that the matter

21 warranted further inquiry by the district court. [BB 11]

22 As for the fourth Doe factor, the record shows that Martinez

23 had no legal expertise or training. [A 31] Although defendants 13 No. 14‐1513

1 without legal training often file pro se petitions, there is no showing

2 that Martinez has any special ability to comprehend legal materials.

3 To be sure, Martinez ultimately was able to make several pro se

4 filings, but we have previously noted that “[t]he fact that [a

5 petitioner] was eventually able to draft a petition . . . does not mean

6 that a duly diligent person would have done so sooner.” Nickels v.

7 Conway,

(2d Cir. 2012) (summary order)

8 (emphasis in original). The district court asserted that Martinez

9 “could have . . . drafted the petition himself with the assistance of

10 the prison’s resources.” [A 10] Yet, again, this capability—and more

11 specifically that it would have yielded a timely filing—was not

12 clearly established on the record, given Martinez’s reliance on

13 retained counsel. So we agree with Martinez’s contention that this

14 matter also warranted further inquiry. [BB 11]

15 II. Reasonable Diligence and the Counseled Litigant

16 When analyzing the applicable Doe factors, the district court

17 emphasized the fact that, between the date that Martinez hired

18 Denaro and the date that the limitations period expired, “the record

19 is devoid of evidence indicating that Mr. Martinez inquired about a

20 potential federal habeas corpus petition.” [A 10] We cannot agree,

21 however, with the suggestion that Martinez would have had to

22 specifically ask his attorney about filing a habeas petition, or

23 undertaking any other specific initiative (as opposed to the general 14 No. 14‐1513

1 pursuit of post‐conviction relief), in order to satisfy the “reasonable

2 diligence” standard. Although we have previously found

3 reasonable diligence when attorneys ignored their clients’ express

4 instructions to file habeas petitions, see Nickels, 480 F. App’x at 57‐59;

5 Dillon,

, plainly no one is born with an understanding

6 of habeas corpus and its deadlines. While we expect a litigant

7 proceeding pro se to educate himself regarding the various methods

8 of appealing a conviction, we also recognize that a litigant

9 proceeding with counsel may reasonably trust his attorney to know

10 the deadlines without client‐provided research assistance.2

11 The district court placed particular weight upon our statement

12 in Doe that “it would be inequitable to require less diligence from

13 petitioners who are able to hire attorneys than from those who are

14 forced to proceed pro se.” Doe,

. [A 9] It is important

15 to clarify that statement. Although we do not require less diligence

16 from counseled litigants, it should be recognized that a counseled

17 litigant may display the same level of diligence in a different way. A

18 litigant with an attorney, for example, may reasonably delegate

19 certain tasks and decisions to the attorney. The litigant may then

Ordinarily, of course, a litigant who relies on his attorney bears the risk of 2

his agent’s negligence (with respect to missed deadlines and otherwise). See Lawrence v. Florida,

(2007). However, when an attorney actually impedes timely filing in circumstances (such as abandonment) that are extraordinary, the petitioner’s reasonable reliance on counsel is relevant to his reasonable diligence for the purposes of equitable tolling. 15 No. 14‐1513

1 reasonably rely upon the attorney to do the necessary work, if, as

2 here, the attorney leads the client to believe that he is fully engaged

3 in the matter.

4 We stated in Doe that “the act of retaining an attorney does

5 not absolve the petitioner of his responsibility for overseeing the

6 attorney’s conduct or the preparation of the petition,”

and we

7 still endorse that statement. Martinez, however, not only swiftly

8 secured representation but also made efforts to reach out to Denaro

9 and ensure that the attorney was diligently pursuing post‐conviction

10 relief. Martinez repeatedly wrote to Denaro to inquire about his

11 case and responded promptly each time his attorney asked for

12 information. [RB 12‐13, BB 9] Eight months after receiving his last

13 communication from Denaro, which itself was ten months after the

14 habeas corpus deadline had passed, Martinez filed a writ of error

15 coram nobis pro se in August 2010 and wrote letters to the Grievance

16 Committee in September 2010, December 2010, and August 2011.

17 [RB 12‐13, BB 10] The district court stated that, because the

18 Grievance Committee letters were sent after the habeas deadline had

19 passed, “that evidence is not relevant to the court’s equitable tolling

20 analysis.” [A 10] However, given that Martinez seeks tolling for the

21 entire period between when his judgment became final and when he

22 ultimately filed his habeas petition pro se, his actions after the

23 deadline passed remain relevant to the tolling analysis. These 16 No. 14‐1513

1 letters, as well as Martinez’s efforts to communicate with his

2 attorney and his pro se filings, all indicate diligence.

3 To be sure, significant gaps in the record also indicate that

4 Martinez may have been inactive for portions of the time for which

5 he now seeks tolling. [RB 6‐10, 18‐19] However, Martinez must be

6 given the opportunity to explain his activity level during these time

7 periods. Whether the gaps truly indicate inactivity, and whether

8 such inactivity overcomes the acts of diligence that Martinez did

9 exhibit, will be matters for the district court to examine on remand.

10 Viewing the record in the context of Denaro’s extraordinary

11 misconduct, we conclude that there are significant indications that

12 Martinez acted with reasonable diligence and that these indications

13 justified a more detailed inquiry and findings by the district court.

14 In light of these findings and in light of our clarification of Doe, we

15 remand this matter to the district court for a hearing on the issue of

16 diligence.

17

18 CONCLUSION

19 For the reasons stated above, we VACATE the district court’s

20 order dismissing the petition and REMAND for further proceedings

21 consistent with this opinion.