RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0352p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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CURTIS ROBERTSON,
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Petitioner-Appellant,
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No. 07-6191
v.
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Respondent-Appellee. -
TOM SIMPSON, Warden,
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Appeal from the United States District Court
for the Western District of Kentucky at Paducah.
No. 05-00239—Thomas B. Russell, Chief District Judge.
Decided and Filed: November 12, 2010
Before: MARTIN, COLE, and CLAY, Circuit Judges.
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COUNSEL
ON BRIEF: Matthew M. Robinson, ROBINSON & BRANDT, PSC, Covington,
Kentucky, for Appellant. Todd D. Ferguson, OFFICE OF THE KENTUCKY
ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. Curtis Robertson filed his petition for
a writ of habeas corpus approximately one month beyond the one-year statute of
limitations. Robertson argues that the district court should equitably toll the limitation
period because the untimely filing was a result of his attorney misadvising him of the
deadline while using cocaine. The district court held that Robertson failed to meet his
burden of proving that he was entitled to equitable tolling. We REMAND the case for
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a determination of whether Robertson’s attorney’s cocaine use and possible misadvice
constitute sufficient extraordinary circumstances to entitle Robertson to equitable tolling.
I. BACKGROUND
The Antiterrorism and Effective Death Penalty Act states that a “1-year period
of limitation shall apply to an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1) (2006). The
limitation period begins to run from the latest of four circumstances, which for this case
is “the date on which the judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review.” Id. § 2244 (d)(1)(A). The limitation
period is tolled by a “properly filed application for State post-conviction or other
collateral review.” Id. § 2244(d)(2).
The relevant dates for determining when the statute of limitations expired are
undisputed. A jury convicted Robertson of murder on September 3, 1999. Robertson
pursued a direct appeal to the Kentucky Supreme Court, which affirmed his conviction,
then issued an order denying a petition for rehearing on September 26, 2002. Robertson
had an additional ninety days within which to file a petition for writ of certiorari with the
United States Supreme Court, which he did not do. See Lawrence v. Florida, 549 U.S.
327, 333 (2007) (holding that “direct review” under section 2241(d)(1)(A) includes
review by the U.S. Supreme Court). Thus, the statute of limitations for filing a federal
habeas corpus action began to run on December 25, 2002.
Approximately one month after the limitation period began to run, Robertson
filed a motion for a court order vacating his judgment of conviction and sentence
pursuant to Kentucky Rule of Criminal Procedure 11.42, which tolled the running of the
statute of limitations. The circuit court denied his motion and the Kentucky Court of
Appeals affirmed. The denial of Robertson’s Rule 11.42 motion became final when the
Supreme Court of Kentucky denied discretionary review on December 8, 2004. Then,
the statute of limitations began to run again, with approximately one month elapsed and
eleven months remaining. The limitation period expired on November 8, 2005.
No. 07-6191 Robertson v. Simpson Page 3
Robertson retained Attorney David Scacchetti to represent him in filing this
habeas petition. Although it is unclear when Robertson first consulted Scacchetti,
Robertson claims in his briefs that it was several months before the deadline for filing
a section 2254 petition. During at least part of the limitation period from December 8,
2004 to November 8, 2005, Scacchetti was using cocaine, as documented in a
disciplinary proceeding against him. See Disciplinary Counsel v. Scacchetti, 867 N.E.2d
830 (Ohio 2007). This record shows that in 2003, Scacchetti began to suffer from
chronic pain caused by a staph infection and an injured disc in his neck. Id. at 831. To
relieve the pain, he began using cocaine. Id. In October 2005, he was arrested while
trying to buy cocaine and closed his law practice within two weeks. Id. Just as the
statute was running out for Robertson, Scacchetti was indicted for possession of cocaine
in November 2005 and found guilty in December 2005. Id. He completed intensive
outpatient rehabilitation in early December 2005 and entered inpatient treatment. Id.
The Supreme Court of Ohio suspended Scacchetti from the practice of law in Ohio for
two years, but stayed eighteen months of the sanction provided that he adhere to certain
conditions. Id. at 833.
Although it is unclear precisely when Scacchetti withdrew and Robertson
retained a new attorney, Robertson claims in his briefs that Attorney Matthew Robinson
took over his case in December 2005. Robinson filed a petition for a writ of habeas
corpus on behalf of Robertson on December 7, 2005, approximately one month after the
statute of limitations expired. The case was referred to a magistrate judge, who ordered
Robertson to show cause why his petition should not be dismissed as untimely.
Robertson argued that the statute of limitations should be equitably tolled because
Scacchetti misadvised him while using cocaine that the deadline for filing the petition
was December 8, 2005. Robertson has not specified exactly when he received the
misadvice.
The magistrate judge issued a Report and Recommendation determining that
Robertson’s petition should be dismissed as untimely filed. Robertson filed objections
to the report and asked the district court to take judicial notice of the Ohio Supreme
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Court’s disciplinary opinion documenting Scacchetti’s cocaine use, arrest, and
suspension from practice of law.
The district court followed the magistrate judge’s recommendation and issued
an Order and Judgment dismissing Robertson’s petition as untimely. The district court
stated that it was compelled to dismiss the petition based on Lawrence, 549 U.S. at 336,
which held that an attorney miscalculation is insufficient to warrant equitable tolling.
The district court noted that:
Arguably, this case is different from a mere miscalculation. . . .
[C]ounsel failed to timely perfect an appeal and most likely gave
incorrect advice to petitioner on the applicable statute of limitations.
Consequently, if not simultaneously, he was disciplined for cocaine use
and underwent intensive therapy. These factors probably do not
distinguish prior precedent, but at the very least, they warrant a second
look.
Robertson v. Simpson, No. 5:05CV-239-R, 2007 WL 2757135, at *1 (W.D. Ky. Sept. 20,
2007). The district court granted Robertson a certificate of appealability. Robertson
appeals.
II. LEGAL FRAMEWORK AND STANDARD OF REVIEW
The doctrine of equitable tolling allows courts to toll a statute of limitations when
“a litigant’s failure to meet a legally-mandated deadline unavoidably arose from
circumstances beyond that litigant’s control.” Graham-Humphreys v. Memphis Brooks
Museum of Art, Inc., 209 F.3d 552, 560-61 (6th Cir. 2005). The Supreme Court recently
held that the statute of limitations for habeas petitions is “subject to equitable tolling in
appropriate cases.” Holland v. Florida, 130 S. Ct. 2549, 2560 (2010). However, the
doctrine of equitable tolling is used sparingly by federal courts. See Graham-
Humphreys, 209 F.3d at 560. The party seeking equitable tolling bears the burden of
proving he is entitled to it. See Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002). A
habeas petitioner is entitled to equitable tolling only if he can make a two-part showing:
(1) he has pursued his rights diligently; and (2) some extraordinary circumstance
prevented timely filing. See Holland, 130 S. Ct. at 2562.
No. 07-6191 Robertson v. Simpson Page 5
We have stated that “where the facts are undisputed or the district court rules as
a matter of law that equitable tolling is unavailable, we apply the de novo standard of
review to a district court’s refusal to apply the doctrine of equitable tolling; in all other
cases, we apply the abuse of discretion standard.” Dunlap v. United States, 250 F.3d
1001, 1007 n.2 (6th Cir. 2001). The district court appeared to exercise its discretion in
determining that Robertson did not meet his burden of proving he was entitled to
equitable tolling. In addition, there are a number of facts that have not been established
on the record before us, such as when Robertson first consulted with Scacchetti, when
Robertson became aware of Scacchetti’s drug use, when Scacchetti gave Robertson any
misadvice, when Scacchetti withdrew from representing Robertson, and when Robertson
retained Robinson. Because the district court exercised its discretion and the facts are
disputed, we review the district court’s decision for abuse of discretion. See id. A
district court abuses its discretion when it relies on clearly erroneous findings of fact,
improperly applies the law, or uses an incorrect legal standard. See Graham-Humphreys,
209 F.3d at 560.
III. ANALYSIS
The Supreme Court has long held that “the principles of equitable tolling . . . do
not extend to what is at best a garden variety claim of excusable neglect” that causes an
attorney to miss a deadline. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990).
However, the Supreme Court recently held in Holland that “professional misconduct . . .
could amount to egregious behavior and create an extraordinary circumstance that
warrants equitable tolling.” Holland, 130 S. Ct. at 2562. We have not yet had an
occasion to apply Holland. In conjunction with a Sixth Circuit employment case,
however, Holland suggests that an attorney misadvising a client about a deadline due to
cocaine use might constitute an extraordinary circumstance that warrants equitable
tolling.
Holland held that egregious cases involving an attorney’s failure to satisfy
professional standards of care may constitute extraordinary circumstances. See id. at
2562-63. The Supreme Court remanded the case for a determination of whether conduct
No. 07-6191 Robertson v. Simpson Page 6
on the part of the petitioner’s attorney rose to the level of extraordinary circumstances
when the attorney failed to file the petitioner’s petition on time, failed to do the research
necessary to find out the proper filing date, failed to inform the petitioner in a timely
manner that a court had decided his case, and failed to communicate with the petitioner
over a period of years, despite the petitioner’s many letters and pleas. Id. at 2564. The
Supreme Court noted that the petitioner’s attorney violated professional standards of
conduct. Id. (“A group of teachers of legal ethics tells us that these various failures
violated fundamental canons of professional responsibility.”). In this case, using illegal
drugs while advising a client would clearly constitute a violation of professional
standards of conduct. See Scacchetti, 867 N.E.2d at 832 (“[Scacchetti] violated duties
to the general public and the legal system by failing to operate within the bounds of the
law.”); Model Rules of Prof’l Conduct R. 1.16 (2009) (stating that an attorney must
withdraw from representation if “the lawyer’s physical or mental condition materially
impairs the lawyer’s ability to represent the client”). Thus, Holland suggests that
Scacchetti’s misadvice due to cocaine use may constitute extraordinary circumstances.
Furthermore, we have recognized that attorney incompetence may be a basis for
equitable tolling in the employment law context. In Cantrell v. Knoxville Community
Development Corp., 60 F.3d 1177, 1180 (6th Cir. 1995), we held that it could be
appropriate to toll an Equal Employment Opportunity Commission filing deadline if the
petitioner was “abandoned by his attorney due to his attorney’s mental illness.” We
found that the attorney’s mental illness in that case was “not a case of ‘garden variety’
attorney negligence.” Id. at 1179-80. Because the district court had not made a factual
determination concerning the attorney’s mental capacity during the filing period, we
remanded the case for an evidentiary hearing on whether the attorney was incapacitated
at the relevant time. See id. at 1180. Drug use could clearly impair an attorney’s
competence to the same extent as mental illness. See Scacchetti, 867 N.E.2d at 832
(“[Scacchetti] acknowledges that he risked harm to his clients by practicing while
impaired.”). Thus, an attorney’s drug use might constitute an extraordinary
circumstance that warrants equitable tolling if it causes the attorney to effectively
abandon his or her client.
No. 07-6191 Robertson v. Simpson Page 7
Several courts of appeal have held that for the mental incapacity of a petitioner
to warrant equitable tolling of a habeas statute of limitations, the petitioner must
demonstrate that the incompetence affected his or her ability to file a timely habeas
petition. See, e.g., Bolarinwa v. Williams, 593 F.3d 226, 232 (2d Cir. 2010)
(“[Petitioner] must offer a ‘particularized description of how her condition adversely
affected her capacity to function generally or in relationship to the pursuit of her rights.’”
(citation omitted)); Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009) (“[T]he
alleged mental impairment must have affected the petitioner’s ability to file a timely
habeas petition.”); Laws v. Lamarqe, 351 F.3d 919, 923 (9th Cir. 2003) (“Where a
habeas petitioner’s mental incompetence in fact caused him to fail to meet the filing
deadline, his delay was caused by an ‘extraordinary circumstance beyond [his] control,’
and the deadline should be equitably tolled.”). A similar standard should apply when a
petitioner seeks to prove that the mental incapacity of his or her attorney warrants
equitable tolling. Thus, for Robertson to prove that an extraordinary circumstance
warrants equitable tolling, he must demonstrate that Scacchetti’s drug use affected his
ability to file a timely habeas petition. Robertson may have made a threshold showing
of incompetence by submitting Scacchetti’s disciplinary case. The district court,
however, believing itself constrained by the Lawrence decision, failed to make several
factual findings relevant to whether Scacchetti’s cocaine use affected his ability to file
a timely habeas petition. The district court did not make any factual determinations
regarding Scacchetti’s state of mind besides taking note of the disciplinary case, and it
did not determine whether he misadvised Robertson.
Whether equitable tolling is warranted is a fact-intensive inquiry best left to the
district courts. See, e.g., Holland, 130 S. Ct. at 2565 (recognizing the prudence of
allowing lower courts to first undertake the “equitable, often fact-intensive” inquiry of
equitable tolling). Thus, we remand the case for a determination of whether Scacchetti’s
cocaine use and possible misadvice constitute sufficient extraordinary circumstances to
warrant equitable tolling. Of course, to be entitled to equitable tolling, Robertson will
also have to satisfy the second prong of the test that “he has been pursuing his rights
diligently.” Holland, 130 S. Ct. at 2562.
No. 07-6191 Robertson v. Simpson Page 8
IV. CONCLUSION
We REMAND the case for a determination of whether Scacchetti’s cocaine use
and possible misadvice constitute sufficient extraordinary circumstances to entitle
Robertson to equitable tolling.