Martinez v. Superintendent of Eastern Correctional Facility, No. 14-1513 (2d Cir. 2015)
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Petitioner appealed the district court's denial of his petition for writ of habeas corpus, challenging his 2007 New York state conviction for charges including murder in the second degree. Petitioner failed to file his petition within the one‐year limitations period provided by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. 2244(d)(1), and the district court denied equitable tolling because petitioner had not acted with reasonable diligence. The court concluded that the district court's analysis of petitioner's degree of diligence was premised on the district court's misapplication of this court's decision in Doe v. Menefee. In this case, there are significant indications that petitioner acted with reasonable diligence and these indications justified a more detailed inquiry and findings by the district court. Accordingly, the court vacated and remanded for further proceedings.
The court issued a subsequent related opinion or order on November 12, 2015.
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14 1513 Martinez v. Superintendent of Eastern Correctional Facility 1 2 In the 3 United States Court of Appeals 4 For the Second Circuit 31 ________ AUGUST TERM, 2015 ARGUED: AUGUST 26, 2015 DECIDED: NOVEMBER 10, 2015 No. 14 1513 DAVID MARTINEZ, Petitioner Appellant, v. SUPERINTENDENT OF EASTERN CORRECTIONAL FACILITY, Respondent Appellee.1 ________ Appeal from the United States District Court for the Eastern District of New York. No. 11 Civ. 4330 – Nina Gershon, Judge. ________ Before: WALKER, JACOBS, and LIVINGSTON, Circuit Judges. ________ Petitioner appellant David Martinez appeals from the decision 32 of the United States District Court for the Eastern District of New 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 The Clerk of the Court is directed to amend the caption as set forth above. 1 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, 28 U.S.C. § 2244(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, 12 391 F.3d 147 (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. ________ RANDOLPH Z. VOLKELL, Law Office of Randolph Z. Volkell, Merrick, NY, for Petitioner Appellant. 15 16 17 18 DONALD J. BERK, Assistant District Attorney, Nassau County (Madeline Singas, District Attorney, Nassau County, Tammy J. Smiley, Assistant District Attorney, on the brief), Mineola, NY, for Respondent Appellee. 19 20 21 22 23 ________ 24 25 3 1 No. 14 1513 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, 28 U.S.C. § 2244(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, 15 391 F.3d 147 (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 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 of Martinez constituted an extraordinary 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 16 F.3d 201, 206 (2d Cir. 2007); see Dillon v. Conway, 642 F.3d 358, 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 28 U.S.C. § 2254. Smith v. McGinnis, 208 F.3d 13, 15 (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 3 F.3d 514, 533 (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, 221 F.3d 117, 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, 12 560 U.S. 631, 649 (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, 208 F.3d at 17. 16 Attorney error generally does not rise to the level of an 17 “extraordinary circumstance.” Baldayaque v. United States, 338 F.3d 18 145, 152 (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, 391 F.3d 147 (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, 338 F.3d at 153 (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, 391 F.3d at 175. 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, 480 F. App’x 54, 58 (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] II. 15 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, 642 F.3d at 363, 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, 391 F.3d at 175. [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 his agent’s negligence (with respect to missed deadlines and otherwise). See Lawrence v. Florida, 549 U.S. 327, 336 (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. 2 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,” id., 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.
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