14‐1513

Martinez v. Superintendent of Eastern Correctional Facility

1 

2 In the 

3 United States Court of Appeals 

4 For the Second Circuit 

5 ________

6 

7 AUGUST TERM, 2015

8 

9 ARGUED: AUGUST 26, 2015

10 DECIDED: NOVEMBER 10, 2015

11 CORRECTED: NOVEMBER 12, 2015

12 

13 No. 14‐1513

14 

15 DAVID MARTINEZ,

16 Petitioner‐Appellant,

17 

18 v.

19 

20 SUPERINTENDENT OF EASTERN CORRECTIONAL FACILITY,

Respondent‐Appellee.1 21 

22 ________

23 

24 Appeal from the United States District Court

25 for the Eastern District of New York.

26 No. 11 Civ. 4330 – Nina Gershon, Judge.

27 ________

28 

29 Before: WALKER, JACOBS, and LIVINGSTON, Circuit Judges.

30 ________

31 

 

1 The Clerk of the Court is directed to amend the caption as set forth above.
2 No. 14‐1513

1 Petitioner‐appellant David Martinez appeals from the decision

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

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

4 Although Martinez seeks to challenge his 2007 New York state

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

6 failed to file his petition within the one‐year limitations period

7 provided by the Antiterrorism and Effective Death Penalty Act of

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

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

10 of limitations because he had not acted with reasonable diligence

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

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

13 misapplication of our decision in Doe v. Menefee, 391 F.3d 147 (2d

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

15 dismissing the petition and REMAND the case for further

16 proceedings consistent with this opinion.

17 ________

18 

19 RANDOLPH Z. VOLKELL, Law Office of Randolph

20 Z. Volkell, Merrick, NY, for Petitioner‐Appellant.

21 DONALD J. BERK, Assistant District Attorney,

22 Nassau County (Madeline Singas, District

23 Attorney, Nassau County, Tammy J. Smiley,

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

25 NY, for Respondent‐Appellee.

26 ________
3 No. 14‐1513

1 

2 JOHN M. WALKER, JR., Circuit Judge:

3 Petitioner‐appellant David Martinez appeals from the decision

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

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

6 Although Martinez seeks to challenge his 2007 New York state

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

8 failed to file his petition within the one‐year limitations period

9 provided by the Antiterrorism and Effective Death Penalty Act of

10 1996, 28 U.S.C. § 2244(d)(1) (2015) (“AEDPA”).    The district court

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

12 of limitations because he had not acted with reasonable diligence

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

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

15 upon a misapplication of our decision in Doe v. Menefee, 391 F.3d 147

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

17 dismissing the petition and REMAND the case for further

18 proceedings consistent with this opinion.

19 BACKGROUND

20 On July 20, 2007, David Martinez entered a guilty plea in New

21 York state court to charges including attempted murder, robbery,

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

23 years’ imprisonment, five years’ post‐release supervision, and
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1 restitution.  He was then transferred to the custody of the New York

2 State Department of Corrections and Community Supervision.  

3 Martinez immediately hired an attorney to seek post‐conviction

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

5 collecting fee payments than in providing Martinez with adequate

6 representation.    The attorney missed the habeas petition deadline

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

8 demonstrate.

9 On March 3, 2008, three weeks after his sentencing, Martinez

10 and his mother hired attorney Anthony Denaro to handle his post‐

11 conviction relief.    Denaro, Martinez, and Martinez’s mother

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

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

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

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

16 communication that Martinez received from Denaro was a

17 November 28, 2008 billing statement.

18 Denaro claims his firm sent Martinez two letters in early 2009,

19 more than ten months after Martinez hired him: a letter from Denaro

20 on January 28, 2009, enclosing all court documents in his possession,

21 and a letter from Denaro’s colleague, Jack Evans, on February 12,

22 2009, requesting a detailed statement of the facts and circumstances

23 in his case.  Denaro also claims he received a letter on March 3, 2009
5 No. 14‐1513

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

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

3 “nothing” until March 4, 2009.

4 On March 4, 2009, more than a year after Denaro’s retention,

5 Evans sent Martinez a letter requesting information to be used in the

6 filing of a coram nobis petition.  The letter referenced documents and

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

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

9 final on March 12, 2008, the one‐year deadline for filing a petition for

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

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

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

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

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

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

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

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

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

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

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

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

22 your case.”
6 No. 14‐1513

1 After Evans left, Martinez corresponded with Denaro. On

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

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

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

5 Denaro emphasized his “forty‐five years [of] legal experience” and

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

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

8 months after his last communication and more than eight months

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

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

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

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

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

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

15 15, 2010, was a fourth billing statement.

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

17 coram nobis, challenging multiple aspects of his sentence.    On

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

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

20 Ind. No. 889N‐07, Motion No. C‐680 (Sup. Ct. Nassau County, Dec.

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

22 Department (Lott, J.), denied Martinez leave to appeal the denial.  
7 No. 14‐1513

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

2 York Court of Appeals was denied.

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

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

5 to the Second Department Grievance Committee, Tenth Judicial

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

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

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

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

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

11 the Grievance Committee determined that Denaro had breached the

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

13 timely pursue Martinez’s case.

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

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

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

17 imprisonment and either reduction or elimination of post‐release

18 supervision.  His petition alleged, inter alia, ineffective assistance of

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

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

21 dismissed as time‐barred.

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

23 parties, the district court dismissed the petition as time‐barred.  The
8 No. 14‐1513

1 district court concluded that the one‐year habeas limitations period

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

3 and that his petition was therefore time‐barred as of March 12, 2009.  

4 The district court found Martinez ineligible for equitable tolling

5 because, although Denaro’s effective abandonment of Martinez

6 constituted an extraordinary circumstance preventing him from

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

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

9 appealability on the question of whether Martinez was entitled to

10 equitable tolling.

11 DISCUSSION

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

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

14 not permit equitable tolling in the circumstances.” Belot v. Burge, 490

15 F.3d 201, 206 (2d Cir. 2007); see Dillon v. Conway, 642 F.3d 358, 363

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

17 The district court dismissed Martinez’s petition as untimely

18 under AEDPA. That act places a one‐year limitation on a prisoner’s

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

20 to 28 U.S.C. § 2254. Smith v. McGinnis, 208 F.3d 13, 15 (2d Cir. 2000)

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

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

23 judgment became final by the conclusion of direct review or the
9 No. 14‐1513

1 expiration of the time for seeking such review.” Rivas v. Fischer, 687

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

3 AEDPA’s time constraint “promotes judicial efficiency and

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

5 state court judgments by requiring resolution of constitutional

6 questions while the record is fresh.” Acosta v. Artuz, 221 F.3d 117,

7 123 (2d Cir. 2000).   

8 A petitioner may secure equitable tolling of the limitations

9 period in certain “rare and exceptional circumstance[s].” Smith, 208

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

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

12 “extraordinary circumstances” prevented him from filing a timely

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

14 period for which he now seeks tolling. Smith, 208 F.3d at 17.

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

16 “extraordinary circumstance.” Baldayaque v. United States, 338 F.3d

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

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

19 to amount to an effective abandonment of the attorney‐client

20 relationship.” Rivas, 687 F.3d at 538.

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

22 circumstance impeded Martinez’s timely filing because Denaro

23 “effectively abandoned” his client.    The focus of this appeal,
10 No. 14‐1513

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

2 in Doe v. Menefee, 391 F.3d 147 (2d Cir. 2004), that Martinez was

3 ineligible for equitable tolling because he had not acted with

4 “reasonable diligence.”

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

6 diligence rendered him ineligible for equitable tolling, the district

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

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

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

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

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

12 inquired further into Martinez’s ability to comprehend legal

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

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

15 I. The Doe Factors

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

17 diligently as reasonably could have been expected under the

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

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

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

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

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

23 consult other lawyers or obtain new representation,” and (4) “his
11 No. 14‐1513

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

2 own.” Doe, 391 F.3d at 175.   

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

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

5 handle all his post‐conviction relief, including a potential federal

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

7 within Martinez’s reasonable expectations.

8 The second Doe factor, contrary to the district court

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

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

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

12 firm sent numerous billing statements and requests for information,

13 implying ongoing work.    Letters from the firm also consistently

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

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

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

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

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

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

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

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

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

23 updates on the case, the evident tendency of Denaro’s
12 No. 14‐1513

1 correspondence would have been to lull Martinez into believing that

2 the firm was hard at work during periods of non‐communication.

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

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

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

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

7 considered whether Denaro’s written misrepresentations reasonably

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

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

10 benefit of hindsight.

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

12 clear indication that Martinez had the financial ability to easily

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

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

15 logistical obstacles.    The district court asserted without further

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

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

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

19 further inquiry by the district court.

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

21 had no legal expertise or training.    Although defendants without

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

23 Martinez has any special ability to comprehend legal materials.  To
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1 be sure, Martinez ultimately was able to make several pro se filings,

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

3 eventually able to draft a petition . . . does not mean that a duly

4 diligent person would have done so sooner.” Nickels v. Conway, 480

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

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

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

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

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

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

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

12 further inquiry.

13 II. Reasonable Diligence and the Counseled Litigant

14 When analyzing the applicable Doe factors, the district court

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

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

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

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

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

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

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

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

23 diligence” standard.    Although we have previously found
14 No. 14‐1513

1 reasonable diligence when attorneys ignored their clients’ express

2 instructions to file habeas petitions, see Nickels, 480 F. App’x at 57‐59;

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

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

5 proceeding pro se to educate himself regarding the various methods

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

7 proceeding with counsel may reasonably trust his attorney to know

the deadlines without client‐provided research assistance.2 8 

9 The district court placed particular weight upon our statement

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

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

12 forced to proceed pro se.” Doe, 391 F.3d at 175.   It is important to

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

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

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

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

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

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

 

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. 14‐1513

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

2 in the matter.  

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

4 not absolve the petitioner of his responsibility for overseeing the

5 attorney’s conduct or the preparation of the petition,” id., and we

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

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

8 and ensure that the attorney was diligently pursuing post‐conviction

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

10 case and responded promptly each time his attorney asked for

11 information.    Eight months after receiving his last communication

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

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

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

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

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

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

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

19 Martinez seeks tolling for the entire period between when his

20 judgment became final and when he ultimately filed his habeas

21 petition pro se, his actions after the deadline passed remain relevant

22 to the tolling analysis.  These letters, as well as Martinez’s efforts to
16 No. 14‐1513

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

2 diligence.

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

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

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

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

7 Whether the gaps truly indicate inactivity, and whether such

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

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

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

11 misconduct, we conclude that there are significant indications that

12 Martinez acted with reasonable diligence and that these indications

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

14 In light of these findings and in light of our clarification of Doe, we

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

16 diligence.

17 

18 CONCLUSION

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

20 order dismissing the petition and REMAND for further proceedings

21 consistent with this opinion.