If you're trolling for a tolling ruling in the Tenth Circuit Court of Appeals, you may be out of luck. The Tenth Circuit reminded us this week that equitable tolling is rarely available.
An Oklahoma state court sentenced Harry Miller, Jr., to prison in 2007 for making a lewd or indecent proposal to a child. In 2010, he filed an application for state post-conviction relief and, when that failed, a federal habeas petition.
The problem? Miller's habeas petition was untimely filed.
Miller actually acknowledged the late filing in the habeas petition, but argued that he was entitled to equitable tolling because had limited access to a prison law library, and required more time to learn how to type and prepare his petition. The district court was not convinced, declined to grant Miller a certificate of appealability, and dismissed the petition.
The Tenth Circuit Court of Appeals was similarly unpersuaded. The court noted that equitable tolling is available only "in rare and exceptional circumstances" such as "when an adversary's conduct ... prevents a prisoner from timely filing." Such was not the case for Miller.
If a lack legal knowledge and typing skills doesn't trigger equitable tolling; what about psychiatric obstacles?
Miller also tried to argue that he has psychiatric conditions that made timely filing impossible, but there were no facts in the record to support his claim. Since an appellate court can only review a district court's dismissal of a § 2254 habeas petition for procedural error, the Tenth Circuit could not make a determination that the district court erred in failing to consider Miller's psychiatric conditions as cause for equitable tolling.
None of Miller's obstacles qualified for equitable tolling, so you might be wondering what scenarios trigger the elusive privilege? The Tenth Circuit Court of Appeals noted in Gibson v. Klinger that equitable tolling would be appropriate, when a prisoner is actually innocent, when an adversary's conduct prevents a prisoner from timely filing, or when a prisoner actively pursues judicial remedies but files a defective pleading during the statutory period.
- Miller v. Trammel (Tenth Circuit Court of Appeals)
- Insufficient Evidence? Inferences Can Convince Rational Juror (FindLaw's Tenth Circuit blog)
- AEDPA Statute of Limitations Subject to Equitable Tolling (FindLaw Supreme Court blog)