09-3623-pr

Jenkins v. Greene

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 

4

5 August Term, 2009

6

7 (Argued: April 15, 2010 Decided: December 23, 2010)

8

9 Docket No. 09-3623-pr

10 

11

12 TAIWU JENKINS,

13 Petitioner-Appellant,

14 — v.— 

15

16 GARY GREENE,

17 Respondent-Appellee.

18 

19 B e f o r e:

20 B.D. PARKER, LIVINGSTON, and LYNCH, Circuit Judges.

21 __________________

22 Appellant was sentenced after trial to two consecutive twenty-five year prison

23 terms. He argues that he received ineffective assistance of counsel, in that his trial

24 counsel failed to inform him of his sentencing exposure and he would have accepted a

25 plea offer had he known of that exposure. The district court denied a writ of habeas

26 corpus, holding that appellant’s failure to seek the writ within the one-year limitations

27 period was not excused by equitable tolling (Robert W. Sweet, Judge). 

28 AFFIRMED.

29 Judge Parker dissents in a separate opinion.
2

1 

2

3 MALVINA NATHANSON, New York, New York, for Petitioner-Appellant.

4

5 ASHLYN DANNELLY (Barbara D. Underwood, Solicitor General; Roseann B.

6 MacKechnie, Deputy Solicitor General for Criminal Matters, on the

7 brief), for Andrew M. Cuomo, Attorney General of the State of New

8 York, New York, New York, for Respondent-Appellee.

9

10 

11 GERARD E. LYNCH, Circuit Judge:

12 Petitioner-appellant Taiwu Jenkins was sentenced in 2000 to two consecutive

13 twenty-five year prison terms after a jury convicted him of two counts of assault in the

14 first degree for slashing two victims’ faces with a razor blade. In 2005, Jenkins filed a

15 pro se motion in state court, seeking to vacate his judgment of conviction on the ground

16 that his trial attorney had not accurately informed him of his sentence exposure, and that,

17 had the attorney done so, Jenkins would have accepted a plea offer from the government

18 rather than go to trial. After the state courts denied his motion, Jenkins filed a petition for

19 writ of habeas corpus in the Southern District of New York, which was denied on the

20 ground that his petition was untimely under 28 U.S.C. § 2244(d)(1). Jenkins now argues

21 that state law required him to support his post-trial motion with an affidavit from the very

22 attorney whose performance he was impugning, and that the attorney’s failure to reply in

23 a timely manner to his letters requesting such an affidavit constituted an extraordinary

24 circumstance warranting equitable tolling of the limitations period. We conclude that
3

1 Jenkins’s argument fails, because New York law in fact permitted him to support his

2 motion with either an affidavit or an explanation of why such an affidavit was

3 unavailable. He therefore could have filed on time in spite of the attorney’s dereliction

4 and is not entitled to equitable tolling.

5 BACKGROUND

6 On August 10, 2000, Taiwu Jenkins was sentenced to two consecutive prison

7 terms of twenty-five years, after being found guilty by a jury of two counts of assault in

8 the first degree. The conviction arose from an incident in October 1998 in which Jenkins

9 asked two people for change inside a grocery store in upper Manhattan. After the two

10 refused, Jenkins argued with them, followed them outside the store, and slashed both

11 victims’ faces with a razor blade. Each needed approximately 150 stitches to close the

12 resulting wounds.

13 Jenkins unsuccessfully appealed his conviction to the Appellate Division. See

14 People v. Jenkins, 756 N.Y.S.2d 151 (1st Dep’t), leave to appeal denied, 100 N.Y.2d 583

15 (2003). Jenkins subsequently filed a pro se petition for a writ of habeas corpus in the

16 Southern District of New York, raising the same arguments against his conviction that he

17 made in his direct appeal. The district court granted Jenkins’s request for appointment of

18 counsel. Jenkins’s counsel then asked the district court to stay the petition while Jenkins

19 exhausted state court remedies “relating to an ineffective assistance of counsel
Smith represented Jenkins through trial, but did not represent him at his sentencing 1

or on appeal.

 Respondent advised the district court that no records of a second plea offer exist in 2

the district attorney’s files.

4

1 argument.” The district court dismissed the petition on May 13, 2005, with leave to

2 reopen. 

3 Two months later, in July 2005, Jenkins moved pro se in state court under N.Y.

4 C.P.L. § 440.10 to vacate the judgment of conviction, claiming that his trial counsel,

5 Oliver A. Smith, provided ineffective assistance by failing to tell him that if he were

6 convicted after trial, he faced a maximum sentence of twenty-five years on each count of

7 assault. Jenkins asserted that Smith conveyed to him two plea offers – one of eight

1

8 years, then one of seven years – and advised him that “the judge would probably give 2

9 [him] 10 to 12 years” if he were convicted at trial. Jenkins maintained that, had Smith

10 advised him as to his true sentencing exposure, he would have accepted one of the offered

11 plea bargains. 

12 Jenkins included with his motion two letters: one from Jenkins to Smith dated

13 April 17, 2005, and a reply from Smith dated April 21, 2005. The April 17 letter

14 repeatedly questions Smith why he failed to tell Jenkins that his total sentencing exposure

15 was fifty years, and asks Smith for any assistance he could offer, but does not ask for an

16 affidavit or other formal statement from Smith verifying that he had not told Jenkins of
1 Smith’s letter also countered Jenkins’s suggestion that he failed to put on the 3

2 strongest possible case, explaining that in his opinion the case was lost because the main

3 witness on Jenkins’s behalf was caught in a lie. 

5

1 his full sentence exposure. Smith’s response explains that he was surprised at the length

2 of Jenkins’s sentence. Smith wished Jenkins luck in his petition and ended the letter by

3 stating “if there is anything that I can do to assist you in that regard, then please let me

4 know.”3

5 The state court denied Jenkins’s motion on October 27, 2005. Jenkins sought

6 leave to appeal from the denial of his motion, asserting that in May 2005 he had requested

7 an affidavit from Smith attesting that he had not informed Jenkins of his sentence

8 exposure, but that Smith had not responded to the request. The Appellate Division denied

9 leave to appeal on June 6, 2006.

10 Almost three weeks later, Jenkins filed a second pro se habeas corpus petition in

11 the Southern District of New York. He again raised his original challenges to his

12 conviction, but added an ineffective assistance of counsel claim based on Smith’s failure

13 to inform him of his sentence exposure. In September, Jenkins wrote to the court that he

14 had obtained new evidence with respect to his prior state-court motion, and requested that

15 the federal habeas petition be held in abeyance until the state court had ruled on his

16 renewed motion. The district court granted the stay, conditioned on Jenkins’s return to

17 the district court within thirty days of exhausting his state remedies.
6

1 Meanwhile, Jenkins moved in state court to renew his § 440 motion based on

2 purported newly-discovered evidence. Jenkins attached two letters to Smith, dated May

3 10, 2005 and June 12, 2006, asking for an affidavit. Jenkins also attached an affirmation

4 from Smith, dated July 21, 2006, attesting that he had not informed Jenkins that his

5 exposure was fifty years. The state court denied Jenkins’s motion to renew, and the

6 Appellate Division again denied leave to appeal.

7 Twenty days after the Appellate Division ruling, Jenkins informed the district

8 court that he had exhausted his ineffective assistance claim. In January 2008, Jenkins

9 retained new counsel, who filed supplemental papers dropping all but the ineffective

10 assistance claims and including a supplemental affidavit by Jenkins stating that he had not

11 been informed that his total sentence exposure was fifty years. Counsel also attached an

12 affirmation by Dominic J. Profaci, who briefly represented Jenkins before his indictment,

13 stating that in his brief representation of Jenkins, he did not recall discussing sentence

14 exposure with him. 

15 After the government submitted a memorandum of law arguing that the ineffective

16 assistance claim was untimely, Jenkins argued in reply that he was entitled to equitable

17 tolling. Jenkins submitted further supplemental materials with his reply, including an

18 affirmation by Jenkins’s wife stating that Smith had told Jenkins his sentence exposure

19 was around ten years and two letters from Jenkins to Smith dated July 25, 2003 and
7

1 February 18, 2004, both requesting an affidavit.

2 The district court denied Jenkins’s petition as untimely. See Jenkins v. Greene,

3 646 F. Supp. 2d 615 (S.D.N.Y. 2009). The court found that while Jenkins had until

4 October 15, 2004 to file a petition raising his ineffective assistance of counsel claims, he

5 did not file that claim until June 29, 2006. Id. at 620. The court also rejected Jenkins’s

6 argument that his ineffective assistance of counsel claim related back to his initial petition

7 pursuant to Federal Rule of Civil Procedure 15(c)(1)(B), finding that the ineffective

8 assistance claim did not arise from the same common core of operative facts as his claim

9 in his initial petition that his sentence was excessive. Id. at 621. Finally, the district court

10 rejected Jenkins’s argument that he was entitled to equitable tolling, stating that the court

11 was “not persuaded that the difficulty Jenkins had in obtaining the affidavit from [his trial

12 counsel] constitutes an extraordinary circumstance.” Id. at 622.

13 DISCUSSION 

14 I. Standard of Review

15 The Supreme Court recently confirmed that equitable tolling applies to the 1-year

16 limitations period contained in 28 U.S.C. § 2244(d)(1). Holland v. Florida, 130 S. Ct.

17 2549, 2560 (2010). However, tolling is appropriate “only if [the petitioner] shows ‘(1)

18 that he has been pursuing his rights diligently, and (2) that some extraordinary

19 circumstances stood in his way’ and prevented timely filing.” Id. at 2562 (emphasis

20 added), quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Where a district court
1 Jenkins thus had until October 15, 2004 to file a federal habeas corpus petition.

4

2 Jenkins was required to exhaust his ineffective assistance claim in state court before filing

3 the federal petition, but the one-year limitations period would have been statutorily tolled

4 during the pendency of the state proceedings. See 28 U.S.C. § 2244(d)(2). Here, however,

5 Jenkins did not even present his ineffective assistance motion to the state court until July

6 2005. In effect, therefore, the issue before us is whether an extraordinary circumstance

7 prevented Jenkins from filing his state motion until that time.

8

1 denies equitable tolling as a matter of law, we review the decision de novo. See Belot v.

2 Burge, 490 F.3d 201, 206 (2d Cir. 2007). If the district court denied equitable tolling on

3 the basis of a factual finding, however, we review the factual finding for clear error. See

4 id. If the district court declined to toll in the exercise of its discretion, we apply an abuse

5 of discretion standard. See Saunders v. Senkowski, 587 F.3d 543, 549-50 (2d Cir. 2009). 

6 We need not decide whether the district court’s conclusion that Jenkins did not

7 demonstrate extraordinary circumstances prevented him from making his claim is a legal

8 or discretionary one. Because we agree with the district court’s conclusion, we would

9 affirm regardless of the standard of review applied.

10 II. Analysis

11 A federal habeas corpus petition must be filed within one year of the latest of four

12 dates, in Jenkins’s case October 15, 2003, when his time to seek a writ of certiorari to the

13 Supreme Court expired. See 28 U.S.C. § 2244(d)(1)(A) (specifying that one date from

4

14 which the limitation period may run is “the date on which the judgment became final by

15 the conclusion of direct review or the expiration of the time for seeking such review”). 
9

1 Jenkins does not now dispute that he raised the ineffective assistance of counsel claim

2 outside this time period, and no longer contends that this new argument relates back to the

3 filing of his original petition raising other issues. He instead argues that he is entitled to

4 equitable tolling of the statutory period. This argument is unavailing.

5 Tolling of the limitations period is applied only in “rare and exceptional”

6 circumstances. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). A litigant seeking

7 equitable tolling must show both that he “diligently” pursued his rights and that “some

8 extraordinary circumstance . . . prevented timely filing.” Holland, 130 S. Ct. at 2562

9 (internal quotation marks omitted); see also Bolarinwa v. Williams, 593 F.3d 226, 231 (2d

10 Cir. 2010). A petitioner seeking equitable tolling must “demonstrate a causal relationship

11 between the extraordinary circumstances on which the claim for equitable tolling rests

12 and the lateness of his filing, a demonstration that cannot be made if the petitioner, acting

13 with reasonable diligence, could have filed on time notwithstanding the extraordinary

14 circumstances.” Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000).

15 We need not address whether Jenkins was diligent in pursuing his rights, as his

16 argument for equitable tolling fails on the second element: Jenkins has not shown that an

17 extraordinary circumstance stood in the way of his pursuing his ineffective assistance of

18 counsel claim. Jenkins argues that he faced an extraordinary circumstance because, in

19 order to present his claim of ineffective assistance of counsel to the New York courts (as

20 he was required to do in order to exhaust his state remedies before seeking federal relief),
10

1 New York law required him to provide an affidavit from the attorney whose effectiveness

2 is being disputed, and he faced “particular difficulties” obtaining such an affidavit from

3 Smith.

4 It is simply not true, however, that New York law required defendants to present

5 an affidavit from the allegedly ineffective counsel. The very cases on which Jenkins

6 himself relies are clear that the New York courts do not inflexibly require that defendants

7 claiming ineffective assistance must present a supporting affidavit from the challenged

8 attorney. No doubt recognizing that obtaining such an affidavit may prove difficult, the

9 New York courts have expressly stated that either an affidavit from counsel or an

10 explanation of why such an affidavit is not available is acceptable. That is the specific

11 holding of People v. Morales, 58 N.Y.2d 1008 (1983), the New York Court of Appeals

12 decision that Jenkins maintains created the affidavit requirement: 

13 Because defendant failed to submit an affidavit from the attorney

14 who represented him at plea and sentence or offer an explanation of

15 his failure to do so, it cannot be said that as to defendant’s failure to

16 appeal the coram nobis Judge erred in denying the application

17 without a hearing. 

18

19 Id. at 1009 (emphasis added).

20 Indeed, in 2001, the First Department held that summary denial of a § 440 motion

21 where the defendant provided an explanation for his failure to provide an affidavit rather

22 than an affidavit was an abuse of discretion. The court stated:

23 It is true that ordinarily a complete record adduced through a
11

1 motion to vacate the judgment of conviction pursuant to CPL

2 440.10, which includes an affidavit from trial counsel

3 explaining his or her trial tactics, is necessary in order to

4 properly evaluate a claim of ineffective assistance of counsel.

5 The failure to present such an affidavit from the attorney or an

6 explanation for the failure to do so has been held to justify

7 denial of a defendant’s motion without a hearing. In the

8 instant case, however, defendant provided a viable

9 explanation for the failure to include such affidavit – i.e.,

10 counsel’s disbarment prior to defendant’s bringing the

11 motion, buttressed by the complaint filed with the Grievance

12 Committee regarding Rojas’ conduct. It was, therefore, an

13 abuse of discretion for the court to summarily deny

14 defendant’s Section 440.10 motion on the basis of this

15 procedural deficiency.

16

17 People v. Gil, 729 N.Y.S.2d 121, 125 (1st Dep’t 2001). New York courts have repeatedly

18 recited the rule that either an attorney’s affidavit or an explanation for its absence is

19 required. See, e.g., People v. Johnson, 739 N.Y.S.2d 381, 383 (1st Dep’t 2002)

20 (affirming trial court’s denial of motion to vacate conviction due to ineffective assistance

21 because defendant “failed to include an affidavit of his trial counsel . . . or an explanation

22 as to why such affidavit was not included”); People v. Hunt, No. 4857/84, 2007 WL

23 1558868, at *7 (Sup. Ct. Bronx Co. Apr. 24, 2007) (noting defendant’s failure to submit

24 affidavit and citing Morales’s “holding that Defendant’s failure to supply attorney’s

25 affirmation or explain such failure warranted summary denial of motion”); see also

26 People v. Radcliffe, 749 N.Y.S.2d 257, 258 (2d Dep’t 2002) (“[T]his court has not

27 required affidavits of counsel where, as here, the defendant is raising an ineffective
1 The cases cited by the dissent do not support the contention that an attorney’s 5

2 affidavit is inflexibly required. In some of the cases cited, the New York courts addressed

3 the merits of the underlying ineffective assistance claim despite the lack of an attorney

4 affidavit. For example, in People v. Rosario, the Appellate Division held that “[t]he trial

5 record establishe[d] that [Rosario] received effective assistance and that there are reasonable

6 strategic explanations for trial counsel’s decision not to call certain witnesses.” 765

7 N.Y.S.2d 320, 322 (1st Dep’t 2003) (internal citation omitted). Only after rejecting the claim

8 on the merits did the court note that Rosario’s “submissions on his motion, which did not

9 include affidavits from trial counsel or from any of the uncalled witnesses, did not

10 substantiate his claims and did not warrant a hearing.” Id. (emphasis added). Thus the court

11 did not require an attorney affidavit as a prerequisite to reaching the merits, and, to the extent

12 the absence of an attorney affidavit was relevant at all, the court expressly treated other

13 evidence – such as the affidavit submitted in this case by Jenkins’s wife – as an alternative

14 to an attorney affidavit. See also People v. Smiley, 886 N.Y.S.2d 893, 893 (2d Dep’t 2009)

15 (“[Smiley’s] self-serving allegations [were] not supported by any other affidavit or evidence,

16 and under all the circumstances attending the case, there is no reasonable possibility that such

17 allegations are true.” (emphasis added)). The other cases cited by the dissent merely mention

18 the lack of an attorney affidavit, but do not hold that such an affidavit is required. See People

19 v. De Jesus, 835 N.Y.S.2d 792, 792 (4th Dep’t 2007) (defendant’s “submissions, which do

20 not include an affidavit from trial counsel, are insufficient to warrant a hearing”); People v.

21 Figueroa, 722 N.Y.S.2d 336, 338 (Sup. Ct. Bronx Co.), aff’d, 679 N.Y.S.2d 304 (1st Dep’t

22 1998) (rejecting ineffective assistance claim on the merits after noting that Figueroa failed

23 to submit an affirmation from his former attorney “and . . . offered absolutely no explanation

24 for his failure to do so” (emphasis added)). These cases demonstrate, at best, that an attorney

25 affidavit would have aided Jenkins’s attempts to secure relief on his ineffective assistance

26 claim; they do not show that such an affidavit was required before the state court would

27 address the merits of that claim. The mere possibility that a state court will deny the claim

28 does not constitute an extraordinary circumstance that prevents a defendant from raising it.

12

1 assistance claim based on an alleged error or omission of trial counsel.”). 

5

2 A requirement that a defendant alleging ineffective assistance of counsel must

3 either submit an affidavit from his attorney or an explanation of why he cannot present

4 such an affidavit from his attorney is not is not an extraordinary circumstance that

5 “prevented [Jenkins from] timely filing” his claim for relief. Holland, 130 S. Ct. at 2562. 
1 Respondent contends that the only letters to Smith asking for an affidavit that are 6

2 dated within the limitations period, which were not provided by Jenkins to any court until

3 after respondent raised the timeliness objection to his renewed federal habeas petition in

4 2008, are fabrications. For purposes of this appeal, we assume the truth of Jenkins’s

5 assertion that he made these requests of Smith on or about the dates that appear on the letters.

1 We express no view, of course, on the merits of Jenkins’s claim. In order to obtain

7

2 habeas relief, Jenkins would have to establish not only that counsel fell below acceptable

3 standards of performance in not advising him of his potential exposure after trial, but also

4 that he was prejudiced in that he would have accepted a more favorable plea offer if he had

5 been properly advised. See United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998)

6 (holding that petitioner suffered prejudice “if his reliance on [counsel’s] advice affected the

7 outcome of the proceedings”). As noted above, it is disputed whether there ever was such

8 a plea offer. Moreover, in characterizing the sentence as severe, we do not suggest that the

9 sentence was unfair or excessive; the record before us is insufficient to form any judgment

10 on that subject. We note only that the sentence is very long, and that the habeas statute of

11 limitations prevents a federal inquiry into a claim that raises a non-frivolous constitutional

12 question.

13

1 Jenkins could have timely filed his motion in state court accompanied by a sworn

2 statement explaining that he was unable to secure an affidavit from Smith because Smith

3 had failed to provide one despite Jenkins’s repeated timely requests. He therefore cannot

6

4 show a causal relationship between the alleged extraordinary circumstance and the

5 lateness of his filing. See Valverde, 224 F.3d at 134.

6 As our dissenting colleague points out, this conclusion is harsh in that it prevents

7 Jenkins from challenging an extremely severe sentence that may very well have been the

8 result of an ineffective attorney. That, however, is the consequence of Congress’s 7

9 decision to impose a limitations period on petitions for habeas corpus. Such limitations

10 statutes by their nature preclude sympathetic or meritorious claims as well as frivolous
14

1 ones. And the doctrine of equitable tolling does not permit us to excuse compliance with

2 the statute whenever a potentially meritorious claim is at stake, or whenever a petitioner

3 faces an especially severe sentence. Nor does that doctrine allow tolling whenever a

4 petitioner must face the daunting procedural obstacles to obtaining habeas review without

5 the assistance of counsel. See Smith, 208 F.3d at 18 (holding that petitioner’s pro se

6 status did not merit equitable tolling), citing Turner v. Johnson, 177 F.3d 390, 392 (5th

7 Cir. 1999) (“We have held that neither a plaintiff’s unfamiliarity with the legal process

8 nor his lack of representation during the applicable filing period merits equitable

9 tolling.”). Although we are mindful that equitable procedure demands flexibility in the

10 approach to equitable intervention, see Holland, 130 S. Ct. at 2563, that flexibility cannot

11 stretch beyond the requirement that an extraordinary circumstance prevent timely filing. 

12 Jenkins did not file his federal petition within the allowable time limit, and his

13 explanation for his failure to do so boils down to the claim that he was thwarted by a

14 mistaken reading of New York case law to impose a requirement that did not in fact exist. 

15 Under the law, such a mistaken belief is not a basis for equitable tolling.

16

17 CONCLUSION

18 For the foregoing reasons, the judgment of the district court is AFFIRMED.
1

1 BARRINGTON D. PARKER, Circuit Judge, dissenting:

2 Because I believe that Jenkins’s petition was entitled to the benefits of equitable tolling, I

3 respectfully dissent. The majority’s approach in my view incorporates two significant errors. It

4 incorrectly analyzes a confusing body of New York case law dealing with the procedural

5 prerequisites to pursuing an ineffective assistance of counsel claim in state court. And more

6 importantly, it fails meaningfully to engage in the equitable analysis required by Holland v.

7 Florida, 130 S. Ct. 2549 (2010).

8 Belot v. Burge sets out a three-part standard for reviewing a district court’s decision not to

9 equitably toll AEDPA’s limitations period. 490 F.3d 201, 206-07 (2d Cir. 2007). First, “[i]f a

10 district court denies equitable tolling on the belief that the decision was compelled by law, that the

11 governing legal standards would not permit equitable tolling in the circumstances—that aspect of

12 the decision should be reviewed de novo.” Id. at 206. Second, “if the decision to deny tolling was

13 premised on a factual finding, the factual finding should be reviewed for clear error.” Id. Third,

14 “if the court has understood the governing law correctly, and has based its decision on findings of

15 fact which were supported by the evidence, but the challenge is addressed to whether the court’s

16 decision is one of those within the range of possible permissible decisions, then appellate review

17 will be . . . for abuse of discretion.” Id. at 206-07.

18 Although the majority declines to determine the appropriate standard of review, I think the

19 district court’s decision to deny equitable tolling should be reviewed de novo since it was based

20 on an incorrect interpretation of what the law required. The district court held that petitioner’s

21 inability to satisfy a state law requiring that he provide an attorney affidavit in order to seek post22 conviction relief on the grounds of ineffective assistance of counsel could not constitute an
2

1 extraordinary circumstance. In the district court’s view “holding that such a state law requirement

2 constitutes an extraordinary circumstance would mean that every petitioner claiming ineffective

3 assistance of counsel would be able to equitably toll their claim pending receipt of an affidavit.” 

4 See Belot, 490 F.3d at 207-08 (finding district court decision that temporary prison lockdown

5 could not qualify as an extraordinary circumstance warranting equitable tolling was “arguably a

6 matter of law”). After Holland, which was decided after the district court’s opinion, this

7 analytically rigid approach employed by the district court is no longer appropriate. As Justice

8 Breyer pointed out, courts considering whether to toll AEDPA’s limitations period are courts of

9 equity whose hallmarks are “flexibility,” the avoidance of “mechanical rules,” and the recognition

10 that “specific circumstances, often hard to predict in advance, could warrant special treatment in

11 an appropriate case.” Holland, 130 S. Ct. at 2563 (citations omitted). The district court should

12 have, but did not, examine the equities specific to Jenkins’s application. Instead, it treated him as

13 a stereotypical applicant. Applying the correct governing legal standard, I believe that Jenkins

14 was entitled to equitable tolling. See Belot, 490 F.3d at 206-07.

15 A petitioner seeking equitable tolling must show (1) that extraordinary circumstances

16 prevented him from filing his petition on time, and (2) that he acted with reasonable diligence in

17 pursuing his rights during the period he seeks to toll. Holland, 130 S. Ct. at 2562; Diaz v. Kelly,

18 515 F.3d 149, 153 (2d Cir. 2008); Baldayaque v. United States, 338 F.3d 145, 150 (2d Cir. 2003). 

19 Jenkins, in my view, meets both parts of this test.

20 As to the first part, Jenkins believed, quite reasonably, that in order to bring an ineffective

21 assistance of counsel claim in state court, he was required to provide an affidavit from Oliver

22 Smith, his trial attorney, concerning the advice or strategy being challenged. Jenkins pursued the
3

1 affidavit but, despite diligent efforts, was unable to reach his lawyer for nearly two years. For

2 example, in a letter to Smith dated July 25, 2003, approximately one week after Jenkins’s

3 application for leave to appeal his state court conviction was denied, Jenkins wrote, “Mr. Smith

4 you never told me I was facing 50 years imprisonment. You told me 10-12 years is what I was

5 facing if we loss [sic] trial. I need an affidavit from you stating this or the part of the record that

6 states this.” Jenkins sent a follow up letter making a similar request several months later. 

7 Notably, Jenkins sent both of these letters prior to the expiration of the statutory period for filing a

8 habeas petition raising an ineffective assistance of counsel claim. Moreover, even after finally

9 receiving a response from Smith, it took two more letters from Jenkins before he finally received

10 the requested affidavit. Smith’s affidavit, which confirmed Jenkins’s contention that he had not

11 been advised of his sentencing exposure, was dated nearly three years after his first request. 

12 These circumstances support equitable tolling. See Baldayaque, 338 F.3d at 152-53 (“[A]n

13 attorney’s conduct, if it is sufficiently egregious, may constitute the sort of ‘extraordinary

14 circumstances’ that would justify the application of equitable tolling to the one-year limitations

15 period of AEDPA.”); see also Holland, 130 S. Ct. at 2563-64 (“Several lower courts have

16 specifically held that unprofessional attorney conduct may, in certain circumstances . . . amount to

17 egregious behavior and create an extraordinary circumstance that warrants equitable tolling.”

18 (citing cases)). 

19 The New York case law on whether an attorney affidavit is actually required under these

20 circumstances is, charitably stated, confused. Any reasonably cautious lawyer reviewing the New

21 York case law on this issue could easily conclude that such an affidavit was required or that, at a

22 minimum, proceeding without such an affidavit was an imprudent step that courted summary
4

1 denial of the application. Similarly, a pro se petitioner, attempting to parse this body of case law

2 could easily have concluded that an affidavit or other explanation from the attorney whose

3 assistance is being challenged was required, and that failure to provide one would have been fatal

4 to an ineffective assistance of counsel claim. For example, in 1998, the First Department found a

5 defendant’s motion to vacate his conviction under C.P.L. § 440.10 on the grounds of ineffective

6 assistance of counsel to be “[un]reviewable on direct appeal since it [was] based on facts dehors

7 the record and trial counsel . . . had no opportunity to explain her trial tactics.” People v.

8 Figueroa, 679 N.Y.S.2d 304 (N.Y. App. Div. 1998). In affirming denial of another such motion

9 in 2003, the First Department noted that defendant’s submissions on his motion “did not include

10 affidavits from trial counsel or from any of the uncalled witnesses.” People v. Rosario, 765

11 N.Y.S.2d 320 (N.Y. App. Div. 2003). More recent cases in the Second and Fourth Departments

12 have similarly rejected ineffective assistance of counsel claims based in part on defendant’s

13 failure to provide an attorney affidavit. See People v. Smiley, 886 N.Y.S.2d 893 (N.Y. App. Div.

14 2009) (noting that defendant’s allegations “[we]re not supported by any other affidavit or

15 evidence”); People v. DeJesus, 835 N.Y.S.2d 792 (N.Y. App. Div. 2007) (noting that defendant

16 “d[id] not include an affidavit from trial counsel”). Moreover, in the opinions cited above, the

17 courts did not mention that an explanation for the lack of an affidavit would have sufficed.

18 Ironically, the state’s opposition to Jenkins’s section 440.10 motion criticized him for not

19 presenting an attorney affidavit. In that opposition, the government emphasized the absence of the

20 affidavit and speculated that the reason for Jenkins’s failure to attach one was “because defendant

21 knew that if he asked, trial counsel would reply that they had, indeed, discussed maximum and

22 minimum sentences.” J.A. 72-73. However, on appeal, after the affidavit was provided and the
5

1 speculation proved baseless, the government changed tacks, contending that such an affidavit was

2 not required.

3 Unsympathetic to Jenkins’s petition, the majority makes much of their view that New

4 York state courts do not “inflexibly” require that defendants claiming ineffective assistance

5 present a supporting affidavit from the challenged attorney. Majority Op. __; See also Jenkins v.

6 Greene, 646 F. Supp. 2d 615, 622 (S.D.N.Y. 2009) (“[S]uch a requirement is neither statutorily

7 required nor always applied by New York courts” (emphasis added)). The majority cites to cases

8 where New York courts require either an attorney affidavit or an explanation for its absence, and

9 suggest that in lieu of the affidavit, Jenkins should have supplied such an explanation in a sworn

10 statement accompanying his affidavit. The fact that New York courts may not “inflexibly” require

11 such an affidavit sidesteps the fact that some courts apparently do and some do not. My reading

12 of the case law is that such an affidavit probably should be submitted. The majority believes that

13 such an affidavit need not be submitted. If court of appeals judges can honestly disagree over this

14 point of law it seems to me wrong for a court of equity to close the court to a pro se litigant who

15 happened to find himself on the wrong side of this debate. This is especially so where the cost of

16 his choice is an additional forty years of incarceration for a man who, as indicated below, may

17 well have received constitutionally ineffective assistance of counsel. Where equity is the point of

18 departure, this constellation of circumstances is, I believe, extraordinary. 

19 As to the second part of the equitable tolling analysis, I have little difficulty concluding

20 that Jenkins acted with “reasonable diligence” during the period that he seeks to toll. In order to

21 secure the affidavit, Jenkins wrote Smith at least five letters, four of which included an explicit

22 request for a supporting affidavit, and two of which were sent prior to the expiration of the
6

1 statutory period for bringing a habeas petition. His efforts were certainly reasonable for a prisoner

2 with relatively limited means of communication. Holland, 130 S. Ct. at 2565 (“The diligence

3 required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence.”

4 (internal citations and quotation marks omitted)); Baldayaque, 338 F.3d at 153 (“The standard is

5 not ‘extreme diligence’ or ‘exceptional diligence,’ it is reasonable diligence. . . . [T]he district

6 court should ask: did the petitioner act as diligently as reasonably could have been expected under

7 the circumstances?” (emphasis in original)). 

8 The significant backdrop to this analysis is that had Jenkins been permitted to file his

9 petition, he, on the basis of the record as it now stands, would have presented a compelling case

10 that he received constitutionally ineffective representation. At trial Jenkins was convicted of two

11 counts of assault and sentenced to two consecutive twenty-five year prison terms for a total

12 sentence of fifty years. In his affidavit submitted to the district court in support of his habeas

13 petition, Jenkins maintained that Smith did not inform him that his total sentencing exposure was

14 fifty years. Jenkins argues that Smith conveyed two separate plea offers of eight and seven years

15 to him prior to trial. However, based on Smith’s advice that Jenkins would likely have received a

16 ten to twelve year sentence if he lost at trial, and that he had a “50-50” chance of acquittal, Jenkins

17 declined both plea offers. Notably, Jenkins also submitted to the district court an affirmation from

18 Smith confirming that he communicated various plea offers to Jenkins, but that he “did not inform

19 Mr. Jenkins that his exposure was 50 years.” These facts stand uncontradicted on the current

20 record. 

21 “To advance an ineffective assistance of counsel claim in the context of a plea, the defendant

22 must show that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) but
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1 for counsel’s unprofessional errors, the result of the proceeding would have been different.” United

2 States v. Doe, 537 F.3d 204, 213-14 (2d Cir. 2008) (citations omitted). With respect to the first prong,

3 this Court has recognized that the Sixth Amendment right to effective assistance of counsel contemplates

4 competent professional advice during plea negotiations. Padilla v. Kentucky, 130 S. Ct. 1473, 1482-

5 86 (2010); United States v. Brown, 623 F.3d 104, 112 (2d Cir. 2010). In particular, counsel’s failure to

6 properly advise a client of his sentencing exposure, such as the possibility of consecutive sentences, may

7 indicate constitutionally ineffective assistance. See Purdy v. United States, 208 F.3d 41, 45 (2d Cir.

8 2000) (“[C]ounsel must communicate to the defendant the terms of the plea offer, and should usually

9 inform the defendant of the strengths and weaknesses of the case against him, as well as the alternative

10 sentences to which he will most likely be exposed.” (citations omitted)); see also Davis v. Greiner, 428

11 F.3d 81, 88-90 (2d Cir. 2005); Cullen v. United States, 194 F.3d 401, 404 (2d Cir. 1999); United States

12 v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998).

13 With respect to the second prong, “a defendant’s statements that he would have accepted a plea

14 offer in combination with some objective evidence, such as a significant sentencing disparity, is

15 sufficient to support a prejudice finding.” Brown, 623 F.3d at 112 (citation and quotation marks

16 omitted). Here, Jenkins has averred that he would have accepted the plea offer if he knew the length of

17 the sentence he otherwise would have faced. Thus, as a result of apparently inadequate assistance from

18 his trial counsel at a crucial stage of the proceedings, Jenkins is serving what the majority concedes is an

19 “extremely severe” sentence that apparently could have been four or five times shorter had he been

20 appropriately counseled. Majority Op. __.

21 Holland emphasizes that the role of courts sitting in equity is to “relieve hardships which, from

22 time to time, arise from a hard and fast adherence to more absolute legal rules . . . .” Holland, 130 S. Ct.
8

1 at 2563 (quoting Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 248 (1944)). Holland

2 also emphasizes that “[t]he flexibility inherent in equitable procedure enables courts to meet new

3 situations that demand equitable intervention, and to accord all the relief necessary to correct particular

4 injustices.” Id. (internal quotation marks and alterations omitted). This Court has similarly recognized

5 that “[u]nder common law principles it is well established that equitable discretion may sometimes be

6 exercised to avoid harm to . . . a party that would be the consequence of the unflinching application of

7 legal principles.” Fin. One Pub. Co. Ltd. v. Lehman Bros. Special Fin., Inc., 414 F.3d 325, 344 (2d Cir.

8 2005). The majority’s approach, I respectfully suggest, neither recognizes nor applies any of these

9 principles which, in my view, tilt sharply in Jenkins’s favor. 

10 At the end of the day Jenkins’s petition might well fail. Most do. However, before being

11 required to spend an additional forty years incarcerated as a result of what could well have been

12 constitutionally ineffective assistance of trial counsel, I would permit his petition, at the very least, to be

13 received and examined by the district court.