14

‐ 1513

Martinez v. Superintendent of Eastern Correctional Facility

1



## In the 2



# United States Court of Appeals

3



## For the Second Circuit 4

________ 5

6

A UGUST T ERM

, 2015 7

8

A RGUED : A UGUST 26, 2015 9

D ECIDED : N OVEMBER 10, 2015 10

C ORRECTED : N OVEMBER 12, 2015 11

12

No. 14

‐ 1513 13

14

D AVID M ARTINEZ

, 15

Petitioner

‐ Appellant, 16

17

v. 18

19

S UPERINTENDENT OF E ASTERN C ORRECTIONAL F ACILITY

, 20

Respondent

‐ Appellee. 1 21

________ 22

23

Appeal from the United States District Court 24

for the Eastern District of New York. 25

No. 11 Civ. 4330

– Nina Gershon, Judge

. 26

________ 27

28

Before: W ALKER

, J ACOBS

, and L IVINGSTON

, Circuit Judges

. 29

________ 30

31

1 The Clerk of the Court is directed to amend the caption as set forth above.2 No. 14

‐ 1513

Petitioner

‐ appellant David Martinez appeals from the decision 1

of the United States District Court for the Eastern District of New 2

York (Gershon, J. ), denying his petition for a writ of habeas corpus. 3

Although Martinez seeks to challenge his 2007 New York state 4

conviction for charges including murder in the second degree, he 5

failed to file his petition within the one

‐ year limitations period 6

provided by the Antiterrorism and Effective Death Penalty Act of 7

1996, 28 U.S.C. § 2244(d)(1) (2015) (“AEDPA”). The district court 8

held that Martinez was not entitled to equitable tolling of the statute 9

of limitations because he had not acted with reasonable diligence 10

during the period for which he sought tolling. We conclude that the 11

court’s analysis of Martinez’s degree of diligence is premised upon a 12

misapplication of our decision in Doe v. Menefee

, 391 F.3d 147 (2d 13

Cir. 2004). Accordingly, we VACATE the district court’s order 14

dismissing the petition and REMAND the case for further 15

proceedings consistent with this opinion. 16

________ 17

18

R ANDOLPH Z. V OLKELL

, Law Office of Randolph 19

Z. Volkell, Merrick, NY, for Petitioner

‐ Appellant

. 20

D ONALD J. B ERK

, Assistant District Attorney, 21

Nassau County (Madeline Singas, District 22

Attorney, Nassau County, Tammy J. Smiley, 23

Assistant District Attorney, on the brief ), Mineola, 24

NY, for Respondent

‐ Appellee. 25

________ 263 No. 14

‐ 1513

1

J OHN M. W ALKER

, J R

., 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

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. We conclude that the 13

court’s analysis of Martinez’s degree of diligence was premised 14

upon a misapplication of our decision in Doe v. Menefee

, 391 F.3d 147 15

(2d Cir. 2004). Accordingly, we VACATE the district court’s order 16

dismissing the petition and REMAND the case for further 17

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. On February 11, 2008, he was sentenced to twelve 22

years’ imprisonment, five years’ post

‐ release supervision, and 234 No. 14

‐ 1513

restitution. He was then transferred to the custody of the New York 1

State Department of Corrections and Community Supervision. 2

Martinez immediately hired an attorney to seek post

‐ conviction 3

relief, but this attorney evidently showed a greater interest in 4

collecting fee payments than in providing Martinez with adequate 5

representation. The attorney missed the habeas petition deadline 6

and was barely responsive to Martinez’s case, as the following facts 7

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. Denaro, Martinez, and Martinez’s mother 11

executed an agreement for legal services. They agreed upon a 12

retainer payment of $5,000, and Martinez’s mother paid $2,000 that 13

day. Denaro accepted the money and then did virtually nothing for 14

almost a year. Between March 2008 and January 2009, the only 15

communication that Martinez received from Denaro was a 16

November 28, 2008 billing statement. 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. Denaro also claims he received a letter on March 3, 2009 235 No. 14

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from Martinez, answering Evans’ request. None of these letters are 1

in the record, however, and Martinez claims Denaro sent him 2

“nothing” until March 4, 2009. 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. The letter referenced documents and 6

information previously provided by Martinez. At no point in this 7

letter did Evans mention that, because Martinez’s judgment became 8

final on March 12, 2008, the one

‐ year deadline for filing a petition for 9

habeas corpus would expire in just over a week. On March 6, 2009, 10

Denaro’s firm also sent Martinez a second billing statement. 11

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

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

Evans. On April 2, 2009, Evans met with Martinez’s mother. The 14

following day, the firm sent Martinez a third billing statement. On 15

April 6, 2009, Evans sent Martinez a letter describing the possible 16

results of a coram nobis petition. On April 12, 2009, Denaro met with 17

Martinez’s mother and advised her that it would be very difficult to 18

formulate a meritorious petition. On April 30, 2009, Evans wrote 19

Martinez to tell him that he was leaving Denaro’s firm. That letter 20

referenced “the two most recent letters you sent to me regarding 21

your case.” 226 No. 14

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After Evans left, Martinez corresponded with Denaro. On 1

June 18, 2009, Martinez wrote to Denaro. On June 25, 2009, Denaro 2

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

“determining whether appeal should be taken to the federal court.” 4

Denaro emphasized his “forty

‐ five years [of] legal experience” and 5

claimed a record of “favorable results.” On October 16, 2009, 6

Martinez wrote again to Denaro. On November 13, 2009, nearly five 7

months after his last communication and more than eight months 8

since the passing of the habeas deadline, Denaro responded to 9

“provide [Martinez] with the status of [his] motion to withdraw [his] 10

guilty plea and federal habeas corpus relief.” Denaro stated, “Please 11

be assured that we are working very hard to make this happen for 12

you.” On November 25, 2009, Martinez wrote again to Denaro. 13

Denaro’s next and last communication to Martinez, sent on January 14

15, 2010, was a fourth billing statement. 15

On August 3, 2010, Martinez filed pro se for a writ of error 16

coram nobis

, challenging multiple aspects of his sentence. On 17

December 8, 2010, the New York Supreme Court modified the 18

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

, 19

Ind. No. 889N

‐ 07, Motion No. C

‐ 680 (Sup. Ct. Nassau County, Dec. 20

8, 2010) (Ayres, J .). On May 10, 2011, the Appellate Division, Second 21

Department (Lott, J .), denied Martinez leave to appeal the denial. 227 No. 14

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On August 1, 2011, his application for leave to appeal to the New 1

York Court of Appeals was denied. 2

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

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

to the Second Department Grievance Committee, Tenth Judicial 5

District (“Grievance Committee”). On December 21, 2010 and 6

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

Committee. He also reached out to The Lawyers’ Fund for Client 8

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

organization would be unable to help him. On November 18, 2011, 10

the Grievance Committee determined that Denaro had breached the 11

Rules of Professional Conduct and admonished him for his failure to 12

timely pursue Martinez’s case. 13

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

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

New York. He sought a reduction of his sentence to ten years’ 16

imprisonment and either reduction or elimination of post

‐ release 17

supervision. His petition alleged, inter alia

, ineffective assistance of 18

counsel. The district court (Feuerstein, J .) issued an Order to Show 19

Cause, directing Martinez to explain why his petition should not be 20

dismissed as time

‐ barred. 21

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

parties, the district court dismissed the petition as time

‐ barred. The 238 No. 14

‐ 1513

district court concluded that the one

‐ year habeas limitations period 1

began when Martinez’s judgment became final on March 12, 2008, 2

and that his petition was therefore time

‐ barred as of March 12, 2009. 3

The district court found Martinez ineligible for equitable tolling 4

because, although Denaro’s effective abandonment of Martinez 5

constituted an extraordinary circumstance preventing him from 6

timely filing his petition, Martinez had not acted with the required 7

reasonable diligence. On July 31, 2014, we granted a certificate of 8

appealability on the question of whether Martinez was entitled to 9

equitable tolling. 10

DISCUSSION 11

We review de novo a district court’s denial of equitable tolling 12

when premised on a finding that “governing legal standards would 13

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

, 490 14

F.3d 201, 206 (2d Cir. 2007); see Dillon v. Conway

, 642 F.3d 358, 363 15

(2d Cir. 2011) (per curiam). 16

The district court dismissed Martinez’s petition as untimely 17

under AEDPA. That act places a one

‐ year limitation on a prisoner’s 18

right to seek federal review of a state criminal conviction pursuant 19

to 28 U.S.C. § 2254. Smith v. McGinnis

, 208 F.3d 13, 15 (2d Cir. 2000) 20

(per curiam). The statute of limitations “runs from the latest of a 21

number of triggering events, including the date on which the 22

judgment became final by the conclusion of direct review or the 239 No. 14

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

, 687 1

F.3d 514, 533 (2d Cir. 2012) (internal quotation marks omitted). 2

AEDPA’s time constraint “promotes judicial efficiency and 3

conservation of judicial resources” and “safeguards the accuracy of 4

state court judgments by requiring resolution of constitutional 5

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

, 221 F.3d 117, 6

123 (2d Cir. 2000). 7

A petitioner may secure equitable tolling of the limitations 8

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

, 208 9

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

, 10

560 U.S. 631, 649 (2010). The petitioner must establish that (a) 11

“extraordinary circumstances” prevented him from filing a timely 12

petition, and (b) he acted with “reasonable diligence” during the 13

period for which he now seeks tolling. Smith

, 208 F.3d at 17. 14

Attorney error generally does not rise to the level of an 15

“extraordinary circumstance.” Baldayaque v. United States

, 338 F.3d 16

145, 152 (2d Cir. 2003). However, attorney negligence may 17

constitute an extraordinary circumstance when it is “so egregious as 18

to amount to an effective abandonment of the attorney

‐ client 19

relationship.” Rivas

, 687 F.3d at 538. 20

Here, we agree with the district court that an extraordinary 21

circumstance impeded Martinez’s timely filing because Denaro 22

“effectively abandoned” his client. The focus of this appeal, 2310 No. 14

‐ 1513

however, is on the district court’s holding, based upon our decision 1

in Doe v. Menefee

, 391 F.3d 147 (2d Cir. 2004), that Martinez was 2

ineligible for equitable tolling because he had not acted with 3

“reasonable diligence.” 4

As we explain below, in assessing whether Martinez’s level of 5

diligence rendered him ineligible for equitable tolling, the district 6

court premised its conclusions on a misapplication of Doe. The 7

district court specifically should have (a) considered the effect of 8

Denaro’s misleading conduct on Martinez’s ability to evaluate his 9

lawyer’s performance, (b) inquired further into Martinez’s financial 10

and logistical ability to secure alternative legal representation, (c) 11

inquired further into Martinez’s ability to comprehend legal 12

materials and file his own petition, and (d) tailored its “reasonable 13

diligence” analysis to the circumstances of a counseled litigant. 14

I. The Doe Factors 15

To qualify for equitable tolling, a petitioner must “act as 16

diligently as reasonably could have been expected under the 17

circumstances .” Baldayaque

, 338 F.3d at 153 (emphasis in original). Doe 18

designated four factors relevant to a diligence inquiry “in the 19

attorney incompetence context”: (1) “the purpose for which the 20

petitioner retained the lawyer,” (2) “his ability to evaluate the 21

lawyer’s performance,” (3) “his financial and logistical ability to 22

consult other lawyers or obtain new representation,” and (4) “his 2311 No. 14

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ability to comprehend legal materials and file the petition on his 1

own.” Doe

, 391 F.3d at 175. 2

The first Doe factor, as the district court acknowledged, 3

supports a finding in favor of Martinez. Martinez hired Denaro to 4

handle all his post

‐ conviction relief, including a potential federal 5

habeas petition. The timely filing of that petition thus fit squarely 6

within Martinez’s reasonable expectations. 7

The second Doe factor, contrary to the district court 8

conclusion, also supports a finding in favor of Martinez. Martinez’s 9

ability to evaluate his lawyer’s performance was compromised by 10

Denaro’s active concealment of his firm’s poor performance. The 11

firm sent numerous billing statements and requests for information, 12

implying ongoing work. Letters from the firm also consistently 13

contained reassuring language. A May 4, 2009 letter, for example, 14

promised the firm would “do what we can to help you.” An April 15

30, 2009 letter said the firm was “mak[ing] every effort to assist 16

you.” A June 25, 2009 letter stated that Denaro had “thoroughly 17

investigated and researched the appeal issues” and could bring to 18

bear “forty

‐ five years [of] legal experience” and a “record [of] 19

favorable results” on Martinez’s behalf. A November 13, 2009 letter 20

said that the firm was “working very hard to make this happen for 21

you.” Although Denaro often left Martinez waiting for months for 22

updates on the case, the evident tendency of Denaro’s 2312 No. 14

‐ 1513

correspondence would have been to lull Martinez into believing that 1

the firm was hard at work during periods of non

‐ communication. 2

The district court found that “[t]here is no reason to believe 3

that Mr. Martinez could not evaluate Mr. Denaro’s performance” 4

because Martinez was able to critically analyze the lawyer’s work in 5

complaints filed years later. However, the district court should have 6

considered whether Denaro’s written misrepresentations reasonably 7

could have impeded and delayed Martinez’s ability to evaluate his 8

lawyer’s performance at the time that it mattered and without the 9

benefit of hindsight. 10

With respect to the third Doe factor, the record contains no 11

clear indication that Martinez had the financial ability to easily 12

obtain another lawyer, even if he had realized that his counsel had 13

abandoned him. In addition, his incarceration would have created 14

logistical obstacles. The district court asserted without further 15

elaboration that Martinez “could have hired a new attorney,” but we 16

do not see how this capability has been established on the record. 17

We agree with Martinez’s contention that the matter warranted 18

further inquiry by the district court. 19

As for the fourth Doe factor, the record shows that Martinez 20

had no legal expertise or training. Although defendants without 21

legal training often file pro se petitions, there is no showing that 22

Martinez has any special ability to comprehend legal materials. To 2313 No. 14

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be sure, Martinez ultimately was able to make several pro se filings, 1

but we have previously noted that “[t]he fact that [a petitioner] was 2

eventually able to draft a petition

. . . does not mean that a duly 3

diligent person would have done so sooner.” Nickels v. Conway

, 480 4

F. App’x 54, 58 (2d Cir. 2012) (summary order) (emphasis in 5

original). The district court asserted that Martinez “could have

. . . 6

drafted the petition himself with the assistance of the prison’s 7

resources.” Yet, again, this capability—and more specifically that it 8

would have yielded a timely filing—was not clearly established on 9

the record, given Martinez’s reliance on retained counsel. So we 10

agree with Martinez’s contention that this matter also warranted 11

further inquiry. 12

II. Reasonable Diligence and the Counseled Litigant 13

When analyzing the applicable Doe factors, the district court 14

emphasized the fact that, between the date that Martinez hired 15

Denaro and the date that the limitations period expired, “the record 16

is devoid of evidence indicating that Mr. Martinez inquired about a 17

potential federal habeas corpus petition.” We cannot agree, 18

however, with the suggestion that Martinez would have had to 19

specifically ask his attorney about filing a habeas petition, or 20

undertaking any other specific initiative (as opposed to the general 21

pursuit of post

‐ conviction relief), in order to satisfy the “reasonable 22

diligence” standard. Although we have previously found 2314 No. 14

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reasonable diligence when attorneys ignored their clients’ express 1

instructions to file habeas petitions, see Nickels

, 480 F. App’x at 57

‐ 59; 2

Dillon

, 642 F.3d at 363, plainly no one is born with an understanding 3

of habeas corpus and its deadlines. While we expect a litigant 4

proceeding pro se to educate himself regarding the various methods 5

of appealing a conviction, we also recognize that a litigant 6

proceeding with counsel may reasonably trust his attorney to know 7

the deadlines without client

‐ provided research assistance. 2 8

The district court placed particular weight upon our statement 9

in Doe that “it would be inequitable to require less diligence from 10

petitioners who are able to hire attorneys than from those who are 11

forced to proceed pro se. ” Doe

, 391 F.3d at 175. It is important to 12

clarify that statement. Although we do not require less diligence 13

from counseled litigants, it should be recognized that a counseled 14

litigant may display the same level of diligence in a different way. A 15

litigant with an attorney, for example, may reasonably delegate 16

certain tasks and decisions to the attorney. The litigant may then 17

reasonably rely upon the attorney to do the necessary work, if, as 18

2 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.15 No. 14

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here, the attorney leads the client to believe that he is fully engaged 1

in the matter. 2

We stated in Doe that “the act of retaining an attorney does 3

not absolve the petitioner of his responsibility for overseeing the 4

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

., and we 5

still endorse that statement. Martinez, however, not only swiftly 6

secured representation but also made efforts to reach out to Denaro 7

and ensure that the attorney was diligently pursuing post

‐ conviction 8

relief. Martinez repeatedly wrote to Denaro to inquire about his 9

case and responded promptly each time his attorney asked for 10

information. Eight months after receiving his last communication 11

from Denaro, which itself was ten months after the habeas corpus 12

deadline had passed, Martinez filed a writ of error coram nobis pro se 13

in August 2010 and wrote letters to the Grievance Committee in 14

September 2010, December 2010, and August 2011. The district 15

court stated that, because the Grievance Committee letters were sent 16

after the habeas deadline had passed, “that evidence is not relevant 17

to the court’s equitable tolling analysis.” However, given that 18

Martinez seeks tolling for the entire period between when his 19

judgment became final and when he ultimately filed his habeas 20

petition pro se

, his actions after the deadline passed remain relevant 21

to the tolling analysis. These letters, as well as Martinez’s efforts to 2216 No. 14

‐ 1513

communicate with his attorney and his pro se filings, all indicate 1

diligence. 2

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

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

he now seeks tolling. However, Martinez must be given the 5

opportunity to explain his activity level during these time periods. 6

Whether the gaps truly indicate inactivity, and whether such 7

inactivity overcomes the acts of diligence that Martinez did exhibit, 8

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

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

misconduct, we conclude that there are significant indications that 11

Martinez acted with reasonable diligence and that these indications 12

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

In light of these findings and in light of our clarification of Doe

, we 14

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

diligence. 16

17

CONCLUSION 18

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

order dismissing the petition and REMAND for further proceedings 20

consistent with this opinion. 21