through the exercise of proper diligence to file his suit." Miller v. Runyon, 77 F.3d 189, 191
(7th Cir. 1996). It is accepted that an attorney’s negligence is not grounds for equitable tolling.
Taliani, 189 F.3d at 598.

Under that standard, petitioner is not entitled to equitable tolling. There is no question
that petitioner has alleged "extraordinary circumstances." Nevertheless, while his former
counsel’s mental illness was beyond his control, it did not, in the strict sense of the word,
prevent him from filing his petition on time. Petitioner’s counsel’s disability did not prevent
him from engaging another lawyer or filing a petition himself. For this reason petitioner’s
analogy to the situation where a petitioner’s own mental disability "prevents [him] from
managing his affairs and thus from understanding his legal rights and acting upon them,"
Miller, 77 F.3d at 191, breaks down. A mentally disabled person can neither prepare a habeas
petition or engage an attorney to prepare one for him, but it always remained possible for
petitioner to do so.

If instead of looking at whether petitioner was "prevented" from filing, we ask, in
Miller’s language, whether due to "circumstances beyond his control" he "cannot reasonably be
expected to sue in time," we must ask at what point that reasonable expectation is determined.
A week before the due date petitioner could reasonably have been expected to file on time. On
the due date his attorney became disabled, and we assume for the moment that his extreme
depression was as disabling as being hit by a bus. At that point, an omniscient observer would
no longer have a reasonable expectation that the petition would be filed on time. But that
expectation would have been no less destroyed the moment our omniscient observer saw that
petitioner’s counsel had forgotten to put the petition in his briefcase on his way to the
courthouse, or committed any number of negligent acts that would not excuse late filing. We
have to conclude that petitioner here could have reasonably been expected to file on time.

Of course, in a real sense petitioner was "prevented" by his reliance, (which we presume
reasonable), on his attorney’s assurances. But this kind of "prevention" is indistinguishable
from the usual case of attorney negligence. Clients rely on their attorneys to do what they are

supposed to do. Presumably the petitioner in Taliani, supra, reasonably relied on his attorney


negligence, gross negligence, or willful misconduct makes no difference, and will not be
grounds for Rule 60(b) relief.

The Ninth Circuit held that an attorney’s total disability due to illness constituted
"excusable neglect" excusing the late filing of an appeal. Islamic Republic of Iran v. Boeing
Co., 739 F.2d 464 (9th Cir. 1984). But as the Seventh Circuit appears to have rejected the
proposition that "neglect" of any kind can be grounds for equitable tolling, this opinion and
others interpreting the "excusable neglect" standard of Rule 4(a)(5), F.R.A.P., are of little
relevance.

No doubt because habeas petitioners are convicted criminals, habeas corpus law has
become the most unforgiving branch of our jurisprudence. Seeking to winnow a large number
of largely meritless petitions, courts have applied rigid procedural rules with little regard for
their original context and justification. The accepted rationale for holding litigants responsible
for their attorneys’ blunders makes good sense in the context of civil litigation. Litigants
choose their attorneys and can monitor their performance. If an attorney is negligent, the client
can seek compensation through a malpractice action. Courts reason that the client and attorney
should bear the liability for the attorney’s blunders, not the adverse party. See, e.g., 7/08
West Grand Avenue, 15 F.3d at 634-35, Tolliver v. Northrop Corp., 786 F.2d 316, 319 (7th
Cir. 1986).

A habeas petitioner, on the other hand, assuming he can hire an attorney at all, has a
limited choice of poorly-compensated attorneys who must take a correspondingly large
workload. A prisoner has little ability to monitor his attorney, and having paid one retainer he
(more realistically, his family) is generally not in a position to hire another lawyer if the first
one proves unresponsive. And if the attorney blunders, a malpractice action is virtually out of
the question. The petitioner cannot prevail without proving damages, and to prove damages he
must prove, at the least, that his habeas petition would have been granted. He may even have
to overturn his conviction before bringing suit. See Levine v. Kling, 123 F.3d 580 (7th Cir.

1997)(under Illinois law, client cannot maintain legal malpractice suit against appellate defense


cause for his late filing. Respondent also strongly disagrees with petitioner’s premise that his
former counsel’s disability should be imputed to him. Since petitioner was not himself
disabled, respondent argues, he is responsible.

The court agrees that petitioner’s former counsel’s affidavit, which amounts to no more
than a layperson’s self-diagnosis, would not support a finding of mental incapacity. As the
court reads the affidavit, petitioner’s former counsel was suffering from extreme fatigue and did
not take the steps a reasonable attorney would have taken under the circumstances, a classic
case of negligence, however understandable in a human sense it might be. Nevertheless, since
a life sentence is at stake, if the factual question of counsel’s mental incapacity were
determinative the court would consider giving petitioner an additional opportunity to
demonstrate it. The court will accordingly assume at this point that petitioner can adequately
show that his former counsel was disabled on the date the petition was due.

For present purposes the court also accepts -- and respondent does not appear to dispute -
- that whatever the degree of counsel’s incapacity, it was not communicated to the petitioner.
In other words, petitioner exercised reasonable diligence, and in no moral sense can the late
filing be considered his fault.

Nevertheless, the court is constrained to agree with respondent that under the law as it
stands, counsel’s capacity or incapacity on the due date is ultimately beside the point. The
court can find no principled distinction between a negligent attorney, for whose inaction the
client is undeniably responsible, and a temporarily incapacitated attorney. Petitioner has not
persuaded the court that it has discretion to find equitable tolling here.

As this court stated in its earlier opinion, quoting United States v. Marcello, 212 F.3d
1005, 1010 (7th Cir. 2000), equitable tolling of the limitations period imposed by 28
U.S.C. § 2244(d) requires a showing that "extraordinary circumstances far beyond the litigant’s
control must have prevented timely filing." This is consistent with the general federal
common-law standard for equitable tolling: "“[I]f the plaintiff because of disability,
irremediable lack of information, or other circumstances beyond his control just cannot

reasonably be expected to sue in time, the statute of limitations will be tolled until he is able


to calculate the deadline correctly, "preventing" him from filing a habeas petition on his own
and meeting the deadline. If petitioner’s former counsel had merely forgotten the due date,
instead of being incapacitated by depression, petitioner would have been no more, and no less,
"prevented" from filing on time.

The court acknowledges that there is some authority tending to support petitioner’s
position. In Calderon v. United States District Court (Beeler), 128 F.3d 1283 (9th Cir. 1997),
the Ninth Circuit affirmed the district court’s application of equitable tolling. The Ninth

we

Circuit acknowledged that equitable tolling is proper only where "‘extraordinary circumstances’
beyond a prisoner’s control make it impossible to file a petition on time." Jd. at 1288. As
recounted by the Court of Appeals, the petitioner’s lead counsel had diligently pursued the
preparation of his habeas petition, but had withdrawn after accepting other employment and
much of the work product he left behind was not usable by his replacement. The court called
this a "turn of events over which [petitioner] had no control," and found these "extraordinary
circumstances" made equitable tolling appropriate. Id. at 1289.

However, the Ninth Circuit recently limited the reasoning of Beeler to capital cases,
although this limitation is not at all evident from the language of Beeler itself. In Frye v.
Hickman, 258 F.3d 1036 (9th Cir. 2001), the court pointed out that because Beeler was a
capital case, the petitioner had a statutory right to have an attorney prepare his habeas petition.
But because there is no right to counsel in non-capital habeas proceedings, the court reasoned,
"(t]he dereliction of retained counsel therefore did not render it impossible for the petitioner to
exercise his statutory or constitutional right to file for federal habeas relief. Accordingly there
is no basis for equitable tolling." Id. at 1038.

Petitioner cites Davis v. Johnson, 158 F.3d 806, 809 (Sth Cir. 1998), but it offers
negligible support. Davis, again, was a capital case. The petitioner had requested appointment
of counsel because his state habeas counsel had become incapacitated, and moved for an
extension of time to file his habeas petition. The district court appointed counsel and granted
an extension of time that was itself repeatedly extended. When the petition was filed, the

district court denied relief both because it believed that it had lacked discretion to extend the


counsel until his conviction has been overturned). Given the AEDPA’s restrictions on second
or successive habeas petitions, this lies even farther from the realm of possibility.

The consequence of the rule is that no matter how trivial the additional burden upon the
respondent of defending a petition brought a day or a month too late, no matter how severe the
burden on the petitioner of a life sentence without hope of review, the burden of attorney
negligence falls on the petitioner, even though he had no reasonable chance to prevent it and no
chance at all to shift the loss to the attorney. In the case of a missed filing date (which is never
a strategic decision), the cost of identifying such patent blunders is negligible and the prejudice
to respondents nonexistent. One would think that a federal common law that has shown great
sensitivity to balancing costs, risks and benefits when it comes to economic harms could show
more sensitivity where prisoners’ freedom is at stake.

Nevertheless, while this court urges the Court of Appeals to reconsider the rule that
habeas petitioners are strictly liable for their attorneys’ negligence, this court must follow the
law as it understands it. The court reaffirms that it is clear from the face of the petition --
literally, the filing date on the first page -- that petitioner is not entitled to relief, and Habeas

Rule 4 mandates summary dismissal. The petition is dismissed.

IT IS SO ORDERED.

Blanche M. Ly, Manany,

United States District Court
DATED: 2-/¥-0O2.

4 The court had originally proposed to grant a certificate of appealability limited to the question of
equitable tolling. Respondent correctly points out that this court may not do so without also identifying a
substantive issue for review. Owens v. Boyd, 235 F.3d 356, 358 (7th Cir. 2001). Without the trial transcript
and exhibits the court cannot say that petitioner has made a substantial showing of the denial of a constitutional
right; the court can only say the petition, substantively, is not frivolous or subject to dismissal under Rule 4.
Accordingly, no certificate of appealability will issue, and petitioner must seek a certificate of appealability from
the Court of Appeals.


Minute Qrder Borm (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Jud; i Sitting Judge if Oth«
ane of Aire eftage | __Blanche M. Manning i Sai
CASE NUMBER 2001 C 4183 DATE February 14, 2002
CASE United States ex rel. Paul Modrowski (B-65896) v. Kenneth R. Briley, Warden
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
MOTION: nature of the motion being presented.)
DOCKET ENTRY:
1) Filed motion of [ use listing in “Motion” box above.]
(2) qa Brief in support of motion due
(3) Oo Answer brief to motion due . Reply to answer brief due.
(4) a Ruling/Hearing on set for at
(5) Oo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) a Pretrial conference{held/continued to] [set for/re-set for] on set for at .
(7) Oo Trial[set for/re-set for] on at
(8) q [Bench/Jury trial] [Hearing] held/continued to at
9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) (General Rule21 OO FRCP4I1(a)(i) © FRCP41(a)(2).
(10) si {Other docket entry} Petitioner Paul Modrowski’s motion to reconsider the dismissal of his

[petition for a writ of habeas corpus is denied. On the court’s own motion, the court revisits its decision to
file the motion and accompanying affidavits under seal. The clerk is directed to unseal these materials.

|The court also declines to issue a certificate of appealability. The clerk is directed to forward a copy of this
lorder to the Seventh Circuit. Enter memorandum opinion and order.

IMail AO 450 form.

(11) i For further detail see order attached to the original minute order.
INo notices required, advised in open court. pe
INo notices required. umber of notices
X__ Notices mailed by judge’s staff.

lotified counsel by telephone.

Docketing to mail notices.

‘opy to judge/magistrate judge.

FEB 1 9 2002

date docketed

date mailed aotice
courtroom
ldeputy’s
initials

JUADD LIWLSIG'S'n

Date/time received in

central Clerk's Office ‘mailing deputy initials

THY SI



deadline for filing the petition and because it found the petition’s claims meritless. The Fifth
Circuit, confronted with the question whether equitable tolling was available, held that it was,
and found that the district court arguably had discretion to extend the filing deadline. It then
affirmed the dismissal on the merits. As a death-penalty case, Davis is distinguishable on the
grounds Frye distinguished Beeler, and in any event any pronouncement that attorney incapacity
justifies equitable tolling is dictum.

The court is unaware of any case in which a statute of limitations has been tolled because
an attorney became disabled at the last minute and was unable to get a suit on file. The court
has found a few instances where courts have granted relief under Rule 60(b) when an attorney’s
mental disability had led to a dismissal for failure to prosecute or for failure to respond to a
summary judgment motion. Such cases are of some relevance, because, as in the case of
equitable tolling, attorney negligence is normally not grounds for relief under Rule 60(b). See
United States v. Cirami, 563 F.2d 26 (2d Cir. 1977); L. P. Steuart, Inc. v. Matthews, 329 F.2d
234 (D.C. Cir. 1964); P.7. Busana Idaman Nurani v. Marissa by GHR Industries Trading
Corp., 151 F.R.D. 32 (S.D.N.Y. 1993). But to the extent that cases under Rule 60(b) are
relevant, Cirami has not been cited by the Seventh Circuit, while L.P. Steuart has been
rejected. See Dickerson v. Bd. of Education of Ford Heights, 32 F.3d 1114, 1118 (7th Cir.
1994).2’ They accordingly give petitioner little support.

In an opinion from this district, In Re Robinson, 124 B.R. 757 (N.D. Ill. 1991)(Duff, J.),
the court granted relief under Rule 60(b) on grounds of "unconscionable" attorney neglect,
where the debtor’s attorney not only had utterly neglected his client’s interests, but had actively
misled the client. Yet this decision appears inconsistent with the Seventh Circuit’s subsequent
opinion in United States v. 7108 West Grand Avenue, 15 F.3d 632, 634-35 (7th Cir.), cert.
denied, 512 U.S. 1212 (1994), holding that whether an attorney’s conduct is characterized as

¥ *[Ajlthough one court has ruled that where counsel’s personal problems, including the serious illness of
his wife, caused him to grossly neglect a diligent client’s case, a district court may grant relief under Rule
60(b), see L.P. Steuart, Inc. v. Matthews, 329 F.2d 234, 235-36 (D.C.Cir.), cert. denied, 379 U.S. 824, 85
S.Ct. 50, 13 L.Ed.2d 35 (1964), the Seventh Circuit has never so held. Indeed, this court has recently held that
counsel’s negligence, whether gross or otherwise, is never a ground for Rule 60(b) relief." Dickerson, 32 F.3d
at 1118 (citations omitted).


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
United States ex rel. ) DOCKETED
)
PAUL MODROWSKI (B-65896), y FEB 1 9 2002
)
Petitioner, ) No. 01 C 4183
)
v. )
) Judge Blanche M. Manning
KENNETH R. BRILEY, Warden, )
)
Respondent. )

MEMORANDUM OPINION AND ORDER

Petitioner Paul Modrowski, represented by counsel, filed his petition for habeas corpus
under 28 U.S.C. § 2254 on June 1, 2001, one day after the expiration of the one-year
limitations period provided by 28 U.S.C. § 2244(d). The petition was also deficient in
numerous respects. Directed to file an amended petition and to show cause why the petition
should not be dismissed, petitioner’s former counsel submitted an unsworn statement stating
that he had spoken with an unidentified member of the clerk’s office staff on the due date and
was told that a petition postmarked on that date would be timely. Petitioner asked the court to
find that these circumstances equitably tolled the limitations period.

By order dated July 24, 2001, the court declined to do so, stating that petitioner’s former
counsel was clearly negligent in relying on a last minute call to an unnamed court employee, as
the law was clear that only incarcerated petitioners, not their attorneys, were entitled to claim
the benefit of the "mailbox rule" that deems a petition filed when mailed. Jones v. Bertrand,
171 F.3d 499 (7th Cir. 1999). As the law is also clear that an attorney’s negligence, even
gross negligence, is not grounds for equitable tolling, Taliani v. Chrans, 189 F.3d 597, 598
(7th Cir. 1999), the court dismissed the petition as untimely.

Petitioner, represented by new counsel, filed a timely motion to reconsider under Rule

59, Fed.R.Civ.P., presenting new and different grounds for equitable tolling. Petitioner now

\9


asserts that his former counsel was unable to file the petition on time because he was disabled
by mental illness. Petitioner’s motion to reconsider is supported by affidavits of petitioner’s
mother and petitioner’s former counsel.’ Petitioner’s former counsel states that he was
suffering from severe depression as a result of grievous personal losses, serious physical illness
requiring hospitalization, and the disintegration of his law practice in the preceding year. He
stated that "as a result of my mental, physical and emotional state, I literally felt incapable of
bringing the petition to the courthouse. I believe that my mental, physical and emotional
condition, as described in this affidavit, undermined my judgment and resulted in the late filing
of the Modrowski habeas petition." Both petitioner’s former counsel and petitioner’s mother
state that petitioner’s former counsel did not disclose his mental illness to her. Petitioner’s
former counsel assured her that he would prepare the habeas petition, and that she (and
presumably the petitioner) relied on his assurances.”

Petitioner contends that just as the mental incapacity of the petitioner would be grounds
for equitable tolling, so should the mental incapacity of petitioner’s former counsel. "Since it
was not within [counsel’s] power to timely file the petition, this Court should also conclude that
it was not within the power of his client, Petitioner, to have done so."

Respondent disagrees that petitioner’s motion establishes that petitioner’s former counsel
was truly disabled. Respondent points out that counsel’s calling the clerk’s office the day the
petition was due argues against a finding that he was incapacitated, and notes that counsel was

able to produce a timely response to the court’s order to submit an amended petition and show

¥ Because of the personal nature of the disclosures in the affidavits, petitioner’s new counsel was permitted
to file the motion and affidavits under seal. On reconsideration, the court directs the clerk to unseal petitioner’s
motion and accompanying affidavits. "What happens in the halls of government is presumptively public
business. Judges deliberate in private but issue public decisions after public arguments based on public records.
... Any step that withdraws an element of the judicial process from public view makes the ensuing decision look
more like fiat, which requires compelling justification." Union Oil Co. of Calif. v. Leavell, 220 F.3d 562, 567
(7th Cir. 2000). Petitioner’s former attorney’s sufferings have affected his functioning in his public capacity as
an officer of this court. This is a matter of public interest, apart from the public’s right to know the basis of
the court’s ruling.

¥ Although petitioner’s former counsel states in his affidavit that he called the clerk’s office on the date the
petition was due, he does not repeat the statement of his earlier filing that he was told that the petition would be
timely if mailed on that day.