In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2860
JOSEPH LOMBARDO,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 C 1038 — James B. Zagel, Judge.
____________________
ARGUED FEBRUARY 22, 2017 — DECIDED JUNE 20, 2017
____________________
Before BAUER and POSNER, Circuit Judges, and DEGUILIO,
District Judge.*
DEGUILIO, District Judge. Joseph Lombardo is serving a life
sentence on his convictions for racketeering, murder, and ob-
struction of justice. After we affirmed his convictions and sen-
tence on direct appeal, he retained a new attorney to argue
*Of the United States District Court for the Northern District of Indiana,
sitting by designation.
2 No. 15-2860
that his convictions were the product of his trial counsel’s in-
effectiveness. However, his new attorney misunderstood
when the one-year limitations period for motions under 28
U.S.C. § 2255 began running, and thus filed Lombardo’s mo-
tion too late.
The question in this appeal is whether an attorney’s mis-
calculation of a statute of limitations justifies equitably tolling
the limitations period for a motion under § 2255. Following
longstanding precedent, we hold that it does not, even if the
result is to bar a claim of ineffective assistance of trial counsel.
We therefore affirm the district court’s dismissal of Lom-
bardo’s untimely motion.
I.
Joseph Lombardo was a long-time member of the Chicago
Outfit, the lineal descendent of Al Capone’s gang. He is also
no stranger to federal prosecution. In the 1970s, Lombardo
was federally indicted for Outfit thefts from the Teamster’s
Pension Fund, but those charges were dropped when Daniel
Seifert, the key witness against him, was murdered prior to
trial—a murder for which the jury in this case found Lom-
bardo responsible. In the 1980s, Lombardo was charged and
convicted in two separate cases, one of which involved a con-
spiracy to bribe a United States Senator, and the other of
which involved maintaining hidden financial and manage-
ment interests in Las Vegas casinos. His convictions in those
cases were affirmed, and his appeals from various postcon-
viction motions were unsuccessful. United States v. Williams,
737 F.2d 594 (7th Cir. 1984); United States v. Cerone, 830 F.2d
938 (8th Cir. 1987); United States v. Lombardo, 859 F.2d 1328 (8th
Cir. 1988); Lombardo v. United States, 865 F.2d 155 (7th Cir.
No. 15-2860 3
1989); Lombardo v. United States, 956 F.2d 272 (table), No. 91-
1085, 1992 WL 38620 (7th Cir. 1992).
In the present case, Lombardo was charged in 2005 with a
racketeering conspiracy for “having conducted the Outfit’s af-
fairs through a pattern of racketeering activity that extended
from the 1960s to 2005 and included a number of murders,
along with extortion, obstruction of justice, and other crimes.”
United States v. Schiro, 679 F.3d 521, 524 (7th Cir. 2012). The
indictment also charged him with committing the Seifert mur-
der as part of that conspiracy. After his indictment, Lombardo
evaded arrest for a number of months, leading to an obstruc-
tion of justice charge in a superseding indictment.
Lombardo was tried along with several of his co-defend-
ants at a trial that lasted nearly three months. The jury con-
victed him on both counts and also found him responsible for
the Seifert murder. The district court imposed a life sentence,
and we affirmed Lombardo’s conviction and sentence on ap-
peal. Schiro, 679 F.3d 521. Lombardo then filed a petition for
certiorari, which the Supreme Court denied on March 25,
2013. Lombardo v. United States, 133 S. Ct. 1633 (2013). Lom-
bardo also petitioned for rehearing, but the Supreme Court
denied that petition on June 3, 2013. Lombardo v. United States,
133 S. Ct. 2792 (2013).
At some point, Lombardo retained a new attorney, David
Jay Bernstein, to represent him in his attempt to vacate his
conviction. On May 31, 2014, Bernstein filed a motion under
§ 2255 on Lombardo’s behalf, arguing that Lombardo re-
ceived ineffective assistance of counsel at trial. In general, the
motion and accompanying brief argued that Lombardo’s trial
counsel failed to adequately investigate the case and develop
4 No. 15-2860
his defense at trial, in violation of Lombardo’s Sixth Amend-
ment right to counsel.
The government moved to dismiss the motion as un-
timely. It noted that Lombardo’s conviction became final for
the purposes of § 2255 when the Supreme Court denied his
petition for certiorari on March 25, 2013—not when it denied
his petition for rehearing on June 3, 2013. Lombardo’s motion
on May 31, 2014 was thus filed outside the one-year statute of
limitations under § 2255(f)(1).
In response, Lombardo conceded that his motion was un-
timely, but asked the district court to forgive the late filing on
account of his attorney’s “excusable neglect.” His attorney
represented that he miscalculated the deadline due to his mis-
taken belief that the statute of limitations began running only
when the Supreme Court denied the petition for rehearing,
not when it denied the petition for certiorari. He further rep-
resented that this error was “based on misinformation pro-
vided by a trusted paralegal.” In a supplemental filing, he
cited the Supreme Court’s decision in Holland v. Florida, 560
U.S. 631 (2010) and asked that the statute of limitations be eq-
uitably tolled.
In its ruling, the district court agreed with the parties that
the motion was filed outside the one-year statute of limita-
tions, and it found that counsel’s miscalculation of the dead-
line did not justify equitable tolling. Accordingly, it dismissed
the motion as untimely and did not reach the merits of Lom-
bardo’s claim. After Lombardo appealed, we issued a certifi-
cate of appealability and instructed the parties to “address
whether Lombardo is entitled to equitable tolling because of
ineffective assistance of counsel in his initial-review collateral
No. 15-2860 5
proceeding. See Trevino v. Thaler, 133 S. Ct. 1911 (2013); Mar-
tinez v. Ryan, 132 S. Ct. 1309 (2012); Ramirez v. United States,
799 F.3d 845, 852–54 (7th Cir. 2015).” Because doing so would
require Bernstein to argue his own ineffectiveness, we also ap-
pointed new counsel to represent Lombardo on appeal.
II.
Section 2255 contains a “1-year period of limitation” that
runs from “the date on which the judgment of conviction be-
comes final.” 28 U.S.C. § 2255(f)(1). As relevant here, the judg-
ment of conviction becomes final when the Supreme Court
denies a petition for certiorari, regardless of whether a de-
fendant then seeks rehearing before the Supreme Court. Rob-
inson v. United States, 416 F.3d 645, 650 (7th Cir. 2005). Lom-
bardo filed his petition just under one year after the denial of
rehearing, but over fourteen months after the denial of certio-
rari, making his petition untimely. To avoid dismissal, Lom-
bardo thus argues that the statute of limitations should be eq-
uitably tolled.
“[T]he threshold necessary to trigger equitable tolling is
very high, lest the exceptions swallow the rule.” United States
v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000). To qualify for
equitable tolling, a petitioner must show: (1) that he has been
pursuing his rights diligently; and (2) that some extraordi-
nary circumstance stood in his way and prevented timely fil-
ing. Holland, 560 U.S. at 649; Boulb v. United States, 818 F.3d
334, 339–40 (7th Cir. 2016). The district court found that Lom-
bardo failed the second element, as he did not demonstrate
extraordinary circumstances, so it dismissed the motion with-
out needing to consider Lombardo’s diligence. “‘We review
the decision to deny equitable tolling for an abuse of discre-
tion.’” Carpenter v. Douma, 840 F.3d 867, 870 (7th Cir. 2016)
(quoting Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013)).
6 No. 15-2860
We first address Lombardo’s argument that his attorney’s
error in calculating the statute of limitations meets the de-
manding standard for extraordinary circumstances required
by existing precedent. We then address his argument that we
should create an exception to that standard specific to claims
of ineffective assistance of trial counsel, under which a peti-
tioner could establish extraordinary circumstances by show-
ing that their postconviction counsel was ineffective (or they
had no counsel) and that their underlying claim has some
merit.
A.
In the district court, Lombardo asked to equitably toll the
statute of limitations because his attorney mistakenly be-
lieved that the statute of limitations began running only upon
the Supreme Court’s denial of rehearing, not upon the denial
of certiorari. However, as we, the Supreme Court, and other
courts have consistently held, mistakes or miscalculations of
that sort by a party’s attorney do not satisfy the extraordinary
circumstances element for equitable tolling. E.g., Holland, 560
U.S. at 651–52; Lawrence v. Florida, 549 U.S. 327, 336–37 (2007);
Griffith v. Rednour, 614 F.3d 328, 331 (7th Cir. 2010); Robinson,
416 F.3d at 650 n.1; Rouse v. Lee, 339 F.3d 238, 248–49 (4th Cir.
2003) (en banc) (collecting cases); Modrowski v. Mote, 322 F.3d
965, 968 (7th Cir. 2003).
“Extraordinary circumstances” are present only when an
“external obstacle” beyond the party’s control “stood in [its]
way” and caused the delay. Menominee Indiana Tribe of Wis. v.
United States, 136 S. Ct. 750, 756 (2016). In other words, the
circumstances that caused a party’s delay must be “both ex-
traordinary and beyond its control.” Id. But parties are bound
by the acts of the attorney they choose to represent them, just
as a principal is bound by the acts of its agent. Maples v.
Thomas, 565 U.S. 266, 280–81 (2012) (“[W]hen a petitioner’s
No. 15-2860 7
postconviction counsel misses a filing deadline, the petitioner
is bound by the oversight….”); Irwin v. Dep’t of Veterans Af-
fairs, 498 U.S. 89, 92 (1990) (“Under our system of representa-
tive litigation, ‘each party is deemed bound by the acts of his
lawyer-agent….’” (quoting Link v. Wabash R. Co., 370 U.S. 626,
634 (1962))). Thus, errors by an attorney acting on a party’s
behalf do not constitute external obstacles beyond the party’s
control. Johnson v. McBride, 381 F.3d 587, 589–90 (7th Cir.
2004); see Maples, 565 U.S. at 280–82; Coleman v. Thompson, 501
U.S. 722, 753 (1991) (“[T]he attorney is the petitioner’s agent
when acting, or failing to act, in furtherance of the litigation,
and the petitioner must ‘bear the risk of attorney error.’”
(quoting Murray v. Carrier, 477 U.S. 478, 488 (1986))). This
principle generally applies both to civil litigants and to habeas
petitioners, neither of which have a constitutional right to
counsel. Lawrence, 549 U.S. at 336–37; Johnson, 381 F.3d at 589–
90; see also Modrowski, 322 F.3d at 968 (“[A]ttorney negligence
is not extraordinary and clients, even if incarcerated, must
vigilantly oversee, and ultimately bear responsibility for, their
attorneys’ actions or failures.” (internal quotation omitted)).
The mistake by Lombardo’s counsel in identifying the cor-
rect filing deadline was neither extraordinary nor beyond
Lombardo’s control. Indeed, we have previously held that
this exact same mistake did not warrant equitable tolling. In
Robinson, the petitioner’s counsel filed a § 2255 motion less
than one year after the Supreme Court denied hearing—
which counsel mistakenly believed to be the operative date—
but more than one year after the Supreme Court denied certi-
orari. 416 F.3d at 646–47. The petitioner argued that the limi-
tations period should be equitably tolled in light of this mis-
take. We disagreed: “Equitable tolling is granted sparingly,
where extraordinary circumstances beyond the litigant’s con-
trol prevented timely filing; a mistaken understanding about
8 No. 15-2860
the deadline for filing is not grounds for equitable tolling.” Id.
at 650 n.1.
That holding is consistent with the Supreme Court’s more
recent decisions on equitable tolling. In Lawrence, the Su-
preme Court confronted another mistake similar to the one
here, in the context of a § 2254 petition by a state prisoner. 549
U.S. 327. Like under § 2255, petitions under § 2254 face a one-
year statute of limitations from the date the conviction be-
comes final. 28 U.S.C. § 2244(d)(1). However, that period is
tolled by statute for § 2254 petitions while a petition for post-
conviction review is pending in the state courts. § 2244(d)(2).
In Lawrence, the petitioner’s attorney believed a state-court
petition remained “pending” for statutory tolling purposes
until the United States Supreme Court denied certiorari. The
Supreme Court held, though, that a state-court petition is no
longer pending once the state’s highest court disposes of the
petition, even if the petitioner then seeks certiorari from the
Supreme Court. 549 U.S. at 332. By that standard, Lawrence’s
federal habeas petition was untimely.
Lawrence argued in the alternative that he was entitled to
equitable tolling, but the Supreme Court disagreed, holding
that he had “fallen far short of showing ‘extraordinary cir-
cumstances’ necessary to support equitable tolling.” Id. at 337.
In particular, the Court rejected the argument that an attor-
ney’s mistake of this sort would justify equitable tolling:
Lawrence argues that his counsel’s mistake in
miscalculating the limitations period entitles
him to equitable tolling. If credited, this argu-
ment would essentially equitably toll limita-
tions periods for every person whose attorney
missed a deadline. Attorney miscalculation is
No. 15-2860 9
simply not sufficient to warrant equitable toll-
ing, particularly in the postconviction context
where prisoners have no constitutional right to
counsel.
Id. at 336–37.
The Supreme Court reiterated these principles in Holland,
stating that “a garden variety claim of excusable neglect, such
as a simple miscalculation that leads a lawyer to miss a filing
deadline, does not warrant equitable tolling.” 560 U.S. at 651–
52 (internal quotations omitted). The facts of Holland extended
well beyond a simple miscalculation or misunderstanding of
the statute of limitations, though, and entailed an attorney’s
prolonged pattern of neglect and detachment from his client,
involving years of directions that went unheeded, pleas for
information that went unanswered, and requests for substitu-
tion of counsel that were denied. Id. at 652–53. Citing the eq-
uitable and fact-specific nature of the equitable tolling doc-
trine, the Court held that egregious attorney misconduct
could sometimes amount to extraordinary circumstances so
as to justify equitable tolling, and remanded for a determina-
tion of whether the attorney’s conduct met that standard.1 Id.
at 649–52.
1In its subsequent decision in Maples, the Court characterized Holland as
resting on the distinction between attorney negligence—which is attribut-
able to the client—and attorney abandonment—which severs the princi-
pal–agent relationship, making the attorney’s acts no longer attributable
to the client. Maples, 565 U.S. at 281–83. The parties thus dispute whether
Holland actually requires abandonment or only egregious misconduct, but
we need not engage in that debate, as the circumstances here fall well short
of meeting either standard.
10 No. 15-2860
The district court’s decision here was a straightforward
application of—and indeed was compelled by—these cases.
The attorney in Robinson made the exact same mistake as
Lombardo’s attorney—believing that the statute of limita-
tions began running once the Supreme Court denied rehear-
ing instead of when it denied certiorari—and we held that
such an error did not justify equitable tolling. 416 F.3d at 650
n.1. The attorney in Lawrence harbored a similar misunder-
standing as to when the statute of limitations was running,
and the Supreme Court likewise held that the error did not
justify equitable tolling. 549 U.S. at 336–37. The same is true
here.
Lombardo argues that his attorney’s misconduct was in
fact more serious, and thus comparable to the egregious mis-
conduct in Holland, because his attorney relied on information
from a “trusted paralegal” instead of researching and calcu-
lating the deadline himself. Every error of this sort will in-
volve a similar type of shortcoming, though, whether the at-
torney doesn’t do enough research, relies on the wrong type
of source, or just plain gets it wrong. This factor alone thus
does not elevate counsel’s error to an extraordinary circum-
stance or meaningfully distinguish this case from others in-
volving similar errors. Lawrence, 549 U.S. at 336 (noting that
circuit precedent was unanimous at the time of counsel’s mis-
understanding of the applicable rule, implying that counsel
had not done any research into the issue); Taliani v. Chrans,
189 F.3d 597, 598 (7th Cir. 1999) (rejecting an argument for eq-
uitable tolling where counsel “miscalculated the limitations
period because of inadequate research”); see Griffith, 614 F.3d
at 331 (“Holland tells us that a simple legal mistake does not
excuse an untimely filing. It may be negligent to wait until
what is by a lawyer’s own calculation the last possible day,
No. 15-2860 11
because such a calculation could be wrong. But this kind of
negligence is not ‘extraordinary’ by any means. Such a blun-
der does not extend the time for filing a collateral attack.”).
Though some cases identify an attorney’s failure to per-
form any research as among the factors that contributed to a
finding of extraordinary circumstances, none of those cases
rely solely on that factor or suggest it can be sufficient to sup-
port that finding.2 E.g., Holland, 560 U.S. at 652; Baldayaque v.
United States, 338 F.3d 145, 152–53 (2d Cir. 2003). In Balda-
yaque, for example, the attorney not only misunderstood the
statute of limitations and failed to perform the proper re-
search on that topic, he never filed a motion under § 2255,
even though he had been retained for that sole purpose, and
he never spoke to or met with the petitioner, and did not fol-
low up when his letter to the petitioner was returned as un-
deliverable. 338 F.3d at 152–53. And in Holland, as noted
above, the attorney ignored the petitioner’s repeated requests
for information, failed to communicate with him over a pe-
riod of years, and disregarded his express directions. 560 U.S.
at 652–53. Those additional extenuating factors are absent
here, as Lombardo’s entire argument is premised on his attor-
ney’s miscalculation based on incorrect information from his
paralegal.
2As we explained in Socha, “Defects in performance, whether through the
attorney’s own fault or attributable to extenuating circumstances, do not
inevitably support equitable tolling, but they are relevant. The Supreme
Court has identified some types of errors (such as miscalculation of a
deadline) that do not warrant relief; it calls them ‘garden variety’ claims
of excusable neglect, meaning that these errors are too common to be
called ‘extraordinary.’” 763 F.3d at 685 (quoting Holland, 560 U.S. at 651–
52).
12 No. 15-2860
Lombardo also asks in the alternative that we remand for
factual development as to whether his attorney actually aban-
doned him, but he has not justified that request. Lombardo
did not raise any such argument to the district court and con-
cedes even now that the record cannot support a finding of
abandonment. Unsupported speculation raised for the first
time on appeal is not a basis to remand.3 Boulb, 818 F.3d at 341
(holding that conclusory and unsupported assertions of ex-
traordinary circumstances did not warrant a remand for fur-
ther development).
Therefore, at least absent our creation of an exception to
this framework, to which we turn next, the district court did
not abuse its discretion in finding that Lombardo did not es-
tablish extraordinary circumstances in support of his request
for equitable tolling.
B.
Lombardo’s alternative argument is that we should create
an exception to this element for equitable tolling specific to
claims of ineffective assistance of trial counsel. In particular,
he asks us to hold that for such claims, a petitioner can estab-
lish extraordinary circumstances by showing that (1) they had
no postconviction counsel or their counsel was ineffective,
and (2) their underlying claim has “some merit.” Lombardo
bases this argument on the Supreme Court’s holdings in Mar-
tinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 133 S. Ct.
1911 (2013), which created a similar framework by which state
prisoners seeking federal habeas review could excuse their
procedural default.
3We express no position as to whether this issue might be raised through
post-judgment motions in the district court.
No. 15-2860 13
By way of background, before state prisoners file a habeas
petition in federal court under 28 U.S.C. § 2254, they must first
assert their claim throughout at least one complete round of
state-court review. Richardson v. Lemke, 745 F.3d 258, 268 (7th
Cir. 2014). When they fail to do so, either because they omit
their claim from the state proceedings or they fail to comply
with the state’s procedural requirements in presenting their
claim, the claim is considered procedurally defaulted. Mar-
tinez, 566 U.S. at 9–10; Clemons v. Pfister, 845 F.3d 816, 819 (7th
Cir. 2017). Federal courts typically will not consider such a
claim on its merits. Martinez, 566 U.S. at 9–10. There are lim-
ited exceptions to this rule, however, including when a peti-
tioner can establish cause for the default and prejudice from a
violation of federal law. Id. at 10.
These rules are not grounded in statute, but in concerns of
comity and federalism. Coleman, 501 U.S. at 730. They are “de-
signed to ensure that state-court judgments are accorded the
finality and respect necessary to preserve the integrity of legal
proceedings within our system of federalism.” Martinez, 566
U.S. at 9. Thus, the contours of this doctrine and the availabil-
ity of exceptions thereto “are elaborated in the exercise of the
Court’s discretion,” based on its equitable judgment. Id. at 13.
The Supreme Court recognized one such exception in
Martinez. There, the state prisoner wished to argue in his fed-
eral petition that his trial counsel was ineffective. Id. at 7.
However, that claim was procedurally defaulted because he
did not raise it in his state postconviction proceeding. Id. In-
stead, the attorney that had been appointed for him in that
proceeding filed a notice akin to an Anders brief, contending
that he lacked any meritorious claim. Id. at 6. Thus, when the
14 No. 15-2860
petitioner filed his federal petition, the district court dis-
missed it as procedurally defaulted, finding that an attorney’s
errors in a postconviction proceeding do not qualify as cause
for a default. Id. at 7–8.
The Supreme Court reversed, creating a narrow exception
to procedural default in those circumstances. It noted that
claims for ineffective assistance of trial counsel are unique in
that they often can only be raised in postconviction proceed-
ings. 566 U.S. at 11. If, because they lack counsel at that stage
or because their postconviction counsel is ineffective, peti-
tioners do not raise their ineffective-assistance claim in the
state postconviction proceedings, then the state courts will
have never considered the claim and it will be procedurally
defaulted in the federal proceedings. Id. at 10–11. And be-
cause petitioners do not have a constitutional right to counsel
at the postconviction stage, they could not avoid default by
presenting an independent claim for ineffective-assistance-of-
postconviction-counsel, as they could for issues that should
have been raised by trial or appellate counsel. Id. Thus, en-
forcing the procedural default in the federal proceeding
would mean that no court at any stage will have considered
the ineffective -assistance-of-trial-counsel claim on its merits.
Id.
To avoid that result, the Supreme Court exercised its equi-
table discretion to create a framework by which state prison-
ers could excuse their procedural default for claims of ineffec-
tive assistance of trial counsel that had not been considered
on its merits at any stage of the proceedings in state court. Id.
at 13–14. Under that framework, the petitioners would first
have to show either that they had no counsel or that their
No. 15-2860 15
counsel was ineffective in the state postconviction proceed-
ing. Id. at 14. Second, they would have to show that their un-
derlying claim of ineffective assistance of trial counsel has at
least “some merit.” Id. Martinez initially held that this rule ap-
plied only in states that barred defendants from presenting
these claims until postconviction proceedings, id. at 17, but
the Court modified that limitation in Trevino to also apply the
rule in states that theoretically permit petitioners to raise
those claims on direct review, but make it virtually impossible
to do so, 133 S. Ct. at 1915.
Martinez’s holding carved out a limited exception to the
Supreme Court’s previous holding in Coleman. Relying on
principles of agency law, Coleman had held that the ineffec-
tiveness of a postconviction attorney does not constitute cause
to excuse a procedural default, as the attorney’s actions are
chargeable to the client. 501 U.S. at 752–53. Martinez modified
that rule by permitting an attorney’s ineffectiveness to be con-
sidered in this narrow context. Martinez emphasized, how-
ever, that its holding created only a “limited qualification” to
Coleman’s rule, and it took pains to explain the limited impact
of its holding:
The rule of Coleman governs in all but the lim-
ited circumstances recognized here. The hold-
ing in this case does not concern attorney errors
in other kinds of proceedings, including appeals
from initial-review collateral proceedings, sec-
ond or successive collateral proceedings, and
petitions for discretionary review in a State’s
appellate courts. It does not extend to attorney
errors in any proceeding beyond the first occa-
sion the State allows a prisoner to raise a claim
16 No. 15-2860
of ineffective assistance at trial, even though
that initial-review collateral proceeding may be
deficient for other reasons.
Martinez, 566 U.S. at 16 (internal citations omitted).
Lombardo nonetheless seeks to apply Martinez’s holding
in the context of equitable tolling. He notes that, like the peti-
tioners in Martinez and Trevino, federal defendants are typi-
cally unable to present ineffective-assistance-of-trial-counsel
claims until their postconviction proceedings, at which they
do not have a constitutional right to counsel. He further notes
that enforcing the statute of limitations to bar his ineffective-
assistance claim at this stage would mean that no court will
have considered that claim on its merits. He thus argues that
he should be able to use Martinez’s framework to satisfy the
“extraordinary circumstances” element for the purposes of
equitable tolling.
To begin with, though, Martinez’s holding itself is not ap-
plicable here. Martinez arose in the context of procedural de-
fault, and established a framework by which state prisoners
could establish cause and prejudice to excuse their procedural
default and thus present claims in a federal habeas petition
that they failed to present to the state courts. However, even
state prisoners who meet that standard, and can thus present
their claims in federal court without being procedurally de-
faulted, must still file their petition in federal court within the
statute of limitations. In that sense they are in the same boat
as federal prisoners, who never face procedural default for in-
effective-assistance claims, Massaro v. United States, 538 U.S.
500 (2003), but who likewise must still comply with the statute
of limitations to assert their claims. Martinez said nothing
No. 15-2860 17
about excusing that independent procedural requirement for
either state or federal petitioners.
Lombardo’s argument is thus that we should extend Mar-
tinez’s reasoning to create a similar exception to the statute of
limitations, under which an attorney’s ineffectiveness would
constitute extraordinary circumstances. However, that argu-
ment runs headlong into the Supreme Court’s holdings in
Lawrence and Holland, both of which held that attorney negli-
gence, such as miscalculating a filing deadline, does not con-
stitute an extraordinary circumstance for the purposes of eq-
uitable tolling. True, the Supreme Court has not applied those
holdings in this precise fact-pattern, where the statute of lim-
itations would bar an initial review of a claim for ineffective
assistance of trial counsel. We do not read Lawrence and Hol-
land as being so paper-thin that they only apply to the pos-
tures in which they arose, though. Nothing in those cases sug-
gested that their equitable-tolling holdings turned on the na-
ture or merits of the underlying claims. To the contrary, those
cases applied generally applicable principles in holding that
a “‘garden variety claim of excusable neglect’” does not war-
rant equitable tolling. Holland, 560 U.S. at 651–52 (quoting Ir-
win, 498 U.S. at 96); Lawrence, 549 U.S. at 336; see also Menomi-
nee Indian Tribe, 136 S. Ct. at 756–57.4
4The petitioners in Holland and Lawrence were also each challenging death
sentences. If the Supreme Court was amenable to applying more lenient
equitable tolling standards to protect particularly important categories of
claims, those capital cases would have been good candidates for such a
rule. Yet in both cases the Supreme Court insisted on a showing of extraor-
dinary circumstances beyond the miscalculation of a deadline.
18 No. 15-2860
It is also true, as Lombardo notes, that Martinez invoked
equitable principles, and that its concern over allowing peti-
tioners to present an ineffective-assistance-of-trial-counsel
claim to at least one court could apply much the same here.
But even if we believed that Martinez’s reasoning undermined
the vitality of the Supreme Court’s previous holdings in Law-
rence and Holland, only the Supreme Court has the prerogative
of overruling or modifying those holdings. Rodriguez de Quijas
v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989). Given Mar-
tinez’s emphatic statement that its holding was limited to its
narrow circumstances, we cannot find that the Supreme
Court has already done so. Until it tells us otherwise, we take
the Court at its word and decline to hold that Martinez created
carve-outs to the holdings in Lawrence and Holland. See Mathis
v. United States, 136 S. Ct. 2243, 2254 (2016) (“[A] good rule of
thumb for reading [Supreme Court] decisions is that what
they say and what they mean are one and the same[.]”).
Moreover, our own precedent has squarely addressed this
precise scenario, and we have held that errors identical to that
of Lombardo’s counsel do not constitute extraordinary cir-
cumstances, even when the petitioners wished to assert inef-
fective-assistance-of-trial-counsel claims in the first instance.
E.g., Robinson, 416 F.3d at 650 n.1; Marcello, 212 F.3d at 1010.
Again, since Martinez emphatically limited its holding to the
narrow context before it, we do not see Martinez as justifying
our reconsideration of that precedent.5 De Leon Castellanos v.
Holder, 652 F.3d 762, 765 (7th Cir. 2011) (noting that “it would
take compelling circumstances, or an intervening on-point
5To be clear, we do not hold that Martinez has no relevance or application
outside its particular context, only that it does not justify upsetting settled
precedent in this particular context.
No. 15-2860 19
Supreme Court decision, to disturb” settled circuit prece-
dent). Taking that step would also entail creating a circuit
split, as the Eleventh Circuit (the only other circuit to have
addressed this issue) has likewise refused to extend Martinez
to the context of equitable tolling. Arthur v. Thomas, 739 F.3d
611, 631 (11th Cir. 2014) (“[T]he reasoning of the Martinez rule
does not apply to AEDPA’s limitations period in § 2254 cases
or any potential tolling of that period.”). Many district courts
have done likewise, and Lombardo has not cited a single case
to the contrary.
Lombardo argues that we already went much of the way
to importing Martinez’s framework into equitable tolling in
Ramirez. There, we held that the district court abused its dis-
cretion in denying a Rule 60(b)(6) motion following the denial
of an ineffective assistance claim under § 2255, as counsel
abandoned the petitioner once the motion was denied, caus-
ing him to lose his ability to file what would have been a mer-
itorious appeal. 799 F.3d at 847–48. In doing so, we drew in
part on the principles underlying Martinez and Trevino rela-
tive to the importance of ineffective assistance claims and pe-
titioners’ inability to raise them at an earlier stage in the pro-
ceedings. Id. at 853–54. Lombardo thus argues that because
Rule 60(b)(6) and equitable tolling are both equitable in nature
and require “extraordinary circumstances,” it is only a short
step from Ramirez to the result he seeks here.
We disagree, as Ramirez is distinguishable in at least two
key respects. First, it arose in the context of a Rule 60(b) mo-
tion, not in the context of equitable tolling. Though, as Lom-
bardo notes, both contexts involve equitable principles,
Ramirez did not have to contend with the longstanding prec-
edent in the equitable tolling context holding that this sort of
20 No. 15-2860
error by counsel does not justify equitable tolling. As dis-
cussed above, recognizing such an exception here would be
inconsistent with Supreme Court precedent, and would re-
quire us to overturn our own precedent on this topic and cre-
ate a circuit split. Ramirez did not do so, Brooks v. Wells, 279
F.3d 518, 522 (7th Cir. 2002) (“One panel of this court cannot
overrule another implicitly. Overruling requires recognition
of the decision to be undone and circulation to the full court
under Circuit Rule 40(e).”), nor do we.
Second, Ramirez rested not on a miscalculation of a dead-
line , but on a finding that Ramirez’s counsel abandoned him.6
Ramirez, 799 F.3d at 854 (“Counsel’s abandonment deprived
Ramirez of the ability to press his ineffective assistance argu-
ment on appeal.” (citing Maples and Holland)); see also id. at 850
(“Most importantly, postconviction counsel abandoned
Ramirez on appeal….”); id. at 851 (“Ramirez points to his
abandonment by counsel as the extraordinary circumstance
that justifies re-opening his section 2255 proceeding.”). And
since the misconduct took place after entry of judgment,7 it
fell outside the purview of Martinez, as at least one court had
adjudicated the ineffective-assistance claim on its merits. Mar-
tinez, 566 U.S. at 16 (“The rule of Coleman governs in all but
the limited circumstances recognized here. The holding in this
6 Though Ramirez expressed some question about habeas counsel’s perfor-
mance, it did not hold that his presentation of the underlying claim was
ineffective; to the contrary, it held that the motion should have been
granted on its merits even as it was presented to the district court. 799 F.3d
at 855–56.
7 Ramirez identified habeas counsel’s errors as failing to inform the peti-
tioner of the district court’s denial of his motion, failing to file any post-
judgment motions, and failing to file a notice of appeal. 799 F.3d at 849.
No. 15-2860 21
case does not concern attorney errors in other kinds of pro-
ceedings, including appeals from initial-review collateral pro-
ceedings….”); Coleman, 501 U.S. at 751 (holding that counsel’s
neglect in failing to file a timely notice of appeal was insuffi-
cient to excuse the petitioner’s procedural default). Thus, not-
withstanding its discussion of Martinez and Trevino and its
embracing of the principles underlying those cases, Ramirez’s
holding is best construed as resting on abandonment under
Maples and Holland.8 Understood in that manner, Ramirez is of
no assistance to Lombardo, as Maples and Holland apply to eq-
uitable tolling by their own terms, but Lombardo cannot
make the showing of abandonment or egregious attorney
misconduct required under those cases. Accordingly, Ramirez
does not control the outcome in this case, nor does it go nearly
as far as Lombardo contends in bridging the gap to the con-
clusion he asks us to reach.
Moreover, importing Martinez’s framework into the equi-
table tolling context would greatly erode the statute of limita-
tions. Though Lombardo relies on an error made by his post-
conviction counsel, Martinez applied equally to petitioners
with ineffective counsel and petitioners with no counsel. 566
U.S. at 17. Thus, pro se prisoners, who make up the vast ma-
jority of filers, would no longer have to show any actual ex-
traordinary circumstances that stood in their way; they would
merely need to have a claim with “some merit” to satisfy the
extraordinary circumstances element. We recently rejected
such an expansion of equitable tolling:
8The en banc Ninth Circuit has interpreted Ramirez in that way. Washing-
ton v. Ryan, 833 F.3d 1087, 1094–95 (9th Cir. 2016) (en banc).
22 No. 15-2860
[L]ack of representation is not on its own suffi-
cient to warrant equitable tolling, nor is a peti-
tioner’s lack of legal training. Prisoners do not
have a constitutional right to the assistance of
counsel in post-conviction collateral attacks. We
cannot give the label “extraordinary” to a trait
that applies to 92 percent of prisoners filing pe-
titions. Nor is lack of legal knowledge, another
feature shared by the overwhelming majority of
prisoners, by itself enough to justify equitable
tolling. The statutory deadlines would be mean-
ingless if either of these common problems were
enough to override the normal rules.
Socha v. Boughton, 763 F.3d 674, 685 (7th Cir. 2014) (internal
citations omitted); see also Boulb, 818 F.3d at 341 (holding for
similar reasons that conclusory allegations of an intellectual
disability by a pro se petitioner do not justify an evidentiary
hearing on equitable tolling). Represented filers would like-
wise effectively be exempt from having to establish extraordi-
nary circumstances, as an attorney’s failure to file a petition
on time would almost always satisfy Martinez’s ineffective-
ness prong (even though, as courts have repeatedly held, it is
hardly extraordinary). Lawrence, 549 U.S. at 336–37. Thus, no
federal prisoner with a claim of ineffective assistance of trial
counsel would ever have to establish any actual extraordinary
circumstances in support of equitable tolling for such a claim.
Petitioners would still have to show that their claim has
“some merit” to satisfy Martinez’s test, but that requirement
would be of little consequence. Meritless § 2255 motions are
already subject to dismissal at the outset. See Rule 4(b) of the
Rules Governing Section 2255 Proceedings for the United
No. 15-2860 23
States District Courts. And it would be anomalous to have to
consider the merits of an underlying claim in deciding a
threshold question like whether the statute of limitations ap-
plies. For that reason, we have previously refused to consider
the nature or merits of an underlying claim in deciding
whether to apply equitable tolling.9 Johnson, 381 F.3d at 590–
91; see also Rouse, 339 F.3d at 251.
In short, under Lombardo’s proposed framework, every
petitioner whose ineffective-assistance claim wouldn’t al-
ready fail on other grounds will have established extraordi-
nary circumstances. That would effectively transform the stat-
ute of limitations into a mere safe-harbor provision, as peti-
tioners could still file their ineffective-assistance claim at any
time so long as they have exercised reasonable diligence. Eq-
uity does not require, and precedent does not permit, such an
undermining of the congressionally enacted statute of limita-
tions.
For those reasons, we decline to recognize Martinez’s
framework as a means of establishing extraordinary circum-
stances for the purposes of equitable tolling. Therefore, the
9 As we stated in Johnson, “‘allowing consideration of the merits of time-
barred claims to creep into the equitable tolling analysis lets petitioners
effectively circumvent the statute of limitations because the merits of their
claims will always be considered. This would enable petitioners who were
in no way prevented from complying with the statute of limitations to cre-
ate delay and undermine finality—two of the reasons that precipitated en-
actment of the AEDPA statute of limitations. It is thus best never to apply
equitable tolling based on a factor that had nothing to do with a failure to
file on time.’” 381 F.3d at 590–91 (quoting Rouse, 339 F.3d at 251) (internal
alterations omitted).
24 No. 15-2860
district court did not abuse its discretion in finding that Lom-
bardo was not entitled to equitable tolling and dismissing his
motion as untimely.
III.
The judgment of the district court is AFFIRMED.
No. 15‐2860 25
POSNER, Circuit Judge, dissenting. Lombardo was convict‐
ed in federal district court of several gang‐related activities,
including a murder, and was sentenced to life in prison. Af‐
ter unsuccessfully appealing, he moved the sentencing court,
pursuant to 28 U.S.C. § 2255(a), to set aside his sentence on
the ground that he’d been denied effective assistance of
counsel at his trial, in violation of his Sixth Amendment
right “in all criminal prosecutions … to have the Assistance
of Counsel for his defence”; if there was such a denial, he is
entitled to a new trial.
Because his conviction became final on March 25, 2013,
the one‐year statutory deadline for filing such a motion (see
28 U.S.C. § 2255(f)) was the same day the following year—
and he missed that deadline. It was the fault of his lawyer (a
different lawyer from the one who had defended him at tri‐
al), who, not knowing when the deadline for filing the mo‐
tion was, failed to consult a knowledgeable lawyer, instead
relying entirely on the unsound advice of a paralegal (re‐
ferred to by the lawyer as a “trusted paralegal,” though ac‐
tually untrustworthy) who informed him that the deadline
was not March 25, 2014 (the true deadline), but June 3, 2014.
As the lawyer explained to the court, “Counsel’s [i.e., his
own] miscalculation was based on misinformation provided
by a trusted paralegal that his client’s one year time limit to
file a 2255 motion began on June 3, 2013 (the day the peti‐
tioner’s motion for rehearing on his writ of certiorari was
denied). As it turns out, counsel was mistaken in his belief
that his client’s one‐year time limit began when the motion
for rehearing was denied. Based upon this mistake, a mis‐
take made by counsel, the government is asking this honor‐
able court to issue an order dismissing the petitioner’s 2255
26 No. 15‐2860
motion as untimely. ... Counsel’s miscalculation was, and
very simply should be, attributed to human error.”
The lawyer’s misconduct not only precluded a timely fil‐
ing of the motion to set aside the sentence but also may well
have been part of a pattern of incompetence because the
lawyer was later reprimanded by the Florida Supreme Court
for failing to supervise a paralegal in another case.
The government (as noted by the lawyer in his mea cul‐
pa) had asked the district judge to dismiss Lombardo’s mo‐
tion as untimely, and the judge complied—possibly because
Lombardo’s lawyer offered no reason for of the judge to de‐
ny the government’s request and didn’t even cite the appli‐
cable legal standard for forgiveness of a lawyer’s error. In‐
stead he cited Pioneer’s “excusable neglect” standard for for‐
giving a missed procedural deadline—the reference is to Pi‐
oneer Investment Services Co. v. Brunswick Associates Ltd. Part‐
nership, 507 U.S. 380 (1993)—rather than the “extraordinary
circumstances” standard of Holland v. Florida, 560 U.S. 631
(2010), for equitable tolling of a statute of limitations.
Notice too the hint in the lawyer’s explanation that he
may have engaged in egregious professional misconduct by
outsourcing a critical issue to a paralegal. The judge should
have realized that this lawyer was not to be trusted; had he
realized this the judge would not have accepted, without
close questioning, the lawyer’s feeble excuse of having made
a “simple miscalculation.” The simplicity of the miscalcula‐
tion was not exculpatory, but condemnatory, of the lawyer’s
conduct. The judge should have investigated further before
denying equitable tolling. Instead he remarked that “missing
a deadline because that deadline has been miscalculated is
not excusable neglect”—holding the paralegal’s miscalcula‐
No. 15‐2860 27
tion against Lombardo, even though Lombardo had hired
the lawyer, not the paralegal, to calculate the deadline and,
sitting in prison, had no idea the lawyer would improperly
hand his case over to the paralegal. It’s true that in Holland v.
Florida, supra, 560 U.S. at 651–52, the Supreme Court said
“We have previously held that ‘a garden variety claim of ex‐
cusable neglect’ … does not warrant equitable tolling”— but
the question is whether Lombardo’s claim is “garden varie‐
ty.”
The judge added that Lombardo should have “count[ed]
to the tolling date himself along with his hired counsel.”
That was another unrealistic remark by the judge; it would
never have occurred to Lombardo to “count to the tolling
date himself”—he’s doubtless never heard the term “tolling
date.” He trusted his lawyer to handle the case.
The judge refused to issue a certificate of appealability,
without which Lombardo could not appeal from the denial
of his section 2255 motion to set aside his sentence. A judge
of this court, however, granted the certificate, bringing Lom‐
bardo’s appeal from the denial of his motion before this
court. We recruited new counsel to represent Lombardo in
his appeal.
I am surprised and disappointed at the decision of the
other two judges on this panel to affirm the district court’s
determination that Lombardo is not entitled to equitable toll‐
ing of the deadline. The government, echoing the district
judge, argues that a defendant may not avail himself of equi‐
table tolling of a statutory deadline unless some “extraordi‐
nary circumstance” stands in his way, and a “simple miscal‐
culation that causes his attorney” to miss the deadline “is not
extraordinary.” That is misleading. It was an inexcusable
28 No. 15‐2860
miscalculation either by Lombardo’s lawyer or by the law‐
yer’s “trusted” paralegal—a miscalculation that Lombardo
would not have noticed or been able to correct. There is no
suggestion that anyone told him “you’d better count the
days yourself because your lawyer may screw up,” or that
without such a warning Lombardo could be expected to
know or guess that he should do that. And while not every
mistake by a lawyer is “extraordinary,” this one was, if con‐
sequences are relevant, as they should be.
The government was relying, mistakenly in my view, on
Holland v. Florida, supra, 560 U.S. at 651, where the Supreme
Court had distinguished between “a simple ‘miscalculation’
that leads a lawyer to miss a filing deadline,” which would
not warrant equitable tolling (even if the defendant was
challenging a death sentence on the ground that his trial
counsel was ineffective, as in Lawrence v. Florida, 549 U.S.
327, 336–37 (2007)), and “more serious instances of attorney
misconduct.” The Court said in Holland that it had “previ‐
ously made clear that a ‘petitioner’ is ‘entitled to equitable
tolling’ only if he shows ‘(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circum‐
stance stood in his way’ and prevented timely filing.” 560
U.S. at 649. Noting that as in this case “the ‘extraordinary
circumstances’ at issue involve[d] an attorney’s failure to sat‐
isfy professional standards of care,” id., the Court rejected an
approach that denies equitable tolling unless an attorney has
engaged in specified types of misconduct, saying ”the [Elev‐
enth Circuit] held that, where that is so, even attorney con‐
duct that is ‘grossly negligent’ can never warrant tolling ab‐
sent ‘bad faith, dishonesty, divided loyalty, mental impair‐
ment or so forth on the lawyer’s part.’ But in our view, [that]
standard is too rigid. … [A]t least sometimes, professional
No. 15‐2860 29
misconduct that fails to meet the Eleventh Circuit’s standard
could nonetheless amount to egregious behavior and create
an extraordinary circumstance that warrants equitable toll‐
ing. … We have previously held that ‘a garden variety claim
of excusable neglect,’ such as a simple ‘miscalculation’ that
leads a lawyer to miss a filing deadline … does not warrant
equitable tolling. But the case before us does not involve,
and we are not considering, a ‘garden variety claim’ of at‐
torney negligence. Rather, the facts of this case present far
more serious instances of attorney misconduct.” 560 U.S. at
649–52. The district judge should have suspected that Lom‐
bardo’s counsel had engaged in professional misconduct
and should have noticed a significant conflict between coun‐
sel’s continued representation of Lombardo and his interest
in protecting his own reputation—and law license. Cf.
Christeson v. Roper, 135 S. Ct. 891, 894 (2015). He did not real‐
ize that this could have been one of the “more serious in‐
stances of attorney misconduct,” which, as Holland teaches,
may amount to an extraordinary circumstance.
There has been as yet no determination of whether the
sentence imposed on Lombardo at the conclusion of the trial
was unconstitutional or otherwise subject to collateral attack.
Only if it was does 28 U.S.C. § 2255(a) entitle him to a new
trial. But rather than affirming, in effect, the sentence on the
basis of his lawyer’s incompetence, we should remand the
case to the district court with instructions to conduct an evi‐
dentiary hearing to evaluate his performance. For this is a
close case, since we are told in Holland v. Florida, supra, 560
U.S. at 649–51, that “a ‘petitioner’ is ‘entitled to equitable
tolling’ only if he shows ‘(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circum‐
stance stood in his way’ and prevented timely filing. … But
30 No. 15‐2860
we have … made clear that often the ‘exercise of a court’s
equity powers ... must be made on a case‐by‐case basis.’ In
emphasizing the need for ‘flexibility,’ for avoiding ‘mechani‐
cal rules,’ we have followed a tradition in which courts of
equity have sought to ‘relieve hardships which, from time to
time, arise from a hard and fast adherence’ to more absolute
legal rules, which, if strictly applied, threaten the ‘evils of
archaic rigidity.’ The ‘flexibility’ inherent in ‘equitable pro‐
cedure’ enables courts ‘to meet new situations [that] demand
equitable intervention, and to accord all the relief necessary
to correct ... particular injustices.’ Taken together, these cases
recognize that courts of equity can and do draw upon deci‐
sions made in other, similar cases for guidance. Such courts
exercise judgment in light of prior precedent, but with
awareness of the fact that specific circumstances, often hard
to predict in advance, could warrant special treatment in an
appropriate case.”
I am aware that in the context of procedural default the
Supreme Court has stated without qualification that a peti‐
tioner must “bear the risk of attorney error.” Coleman v.
Thompson, 501 U.S. 722, 752–53 (1991). But as explained in
Holland, supra, 560 U.S. at 650, quoting 501 U.S. at 726,
“Coleman was ‘a case about federalism,’ asking whether fed‐
eral courts may excuse a petitioner’s failure to comply with a
state court’s procedural rules, notwithstanding the state
court’s determination that its own rules had been violated.
Equitable tolling, by contrast, asks whether federal courts
may excuse a petitioner’s failure to comply with federal tim‐
ing rules, an inquiry that does not implicate a state courtʹs
interpretation of state law. Holland does not argue that his
attorney’s misconduct provides a substantive ground for re‐
lief. … This case asks how equity should be applied once the
No. 15‐2860 31
statute is recognized. And given equity’s resistance to rigid
rules, we cannot read Coleman as requiring a per se approach
in this context” (emphasis in original).
So we have in the present case unprofessional attorney
conduct that may well rise to the level of the “egregious”
and the “extraordinary”; but to know whether it does we
need more facts—specifically we need to know why Lom‐
bardo’s lawyer relied on a non‐lawyer’s calculation of the
filing deadline. I suspect that his conduct was both “egre‐
gious” and “extraordinary,” as it represented a complete ab‐
dication of his responsibility to represent Lombardo. I can’t
recall a case in my 35 years as a judge in which a lawyer
made such an error—and with such adverse consequences
for his client if we affirm. But we should let the district judge
try to untangle the mess in the first instance.