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 petitioner’s 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 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


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., 7108 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
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


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 through the exercise of proper


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 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." /d. at 1288. As recounted by
the Court of Appeals, the petitioner's Jead 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. /d. 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." /d. 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 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


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 blunders is negligible and the prejudice to
respondents nonexistent. One would think that a federal common law capable of balancing costs,
risks and benefits when it comes to economic harms could do so where freedom is at stake.

That said, this court must apply the law as it stands. After petitioner filed his motion to
reconsider, the Seventh Circuit declined to carve out an exception for incarcerated prisoners and
reaffirmed that incompetence of counsel is not grounds for equitable tolling. Johnson v.
McCaughtry, 265 F.3d 559, 566 (7th Cir. 2001). This court accordingly reaffirms that it is clear
from the face of the petition that petitioner is not entitled to relief, and Habeas Rule 4 mandates

summary dismissal. The motion to reconsider is denied.“
IT IS SO ORDERED.

Blanche M. Manning; Judge {f
United States District Court

DATED: 2 - 2S -o92.

* 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.

8


Minote Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge
or Magistrate Judge

Blanche M. Manning

Sitting Judge if Other
than Assigned Judge

CASE NUMBER 01 C 4183 DATE 2/25/2002
CASE Modrowski vs. Briley
TITLE

[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) stat
of the motion being presented.}

briefly the nature

qi)

court forwards the correct memorandum opinion and order. Enter Memorandum Opinion

[For further detail see order attached to the original minute order.}

MOTION:
DOCKET ENTRY:
(1) im) Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due ____
(3) oO Answer brief to motion due. . Reply to answer brief due___.
(4) Oo Ruling/Hearing on___set for at
(5) Q Status hearing[held/continued to] [set for/re-set for] on set for at
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for at.
a” a Trial[set for/re-set for] on at
(8) Qa [Bench/Jury trial] [Hearing] held/continued to____at
(9) a] This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OCOFRCP4(m) General Rule21 CO FRCP41(a)(1) [ FRCP41(a)(2).
ao) {Other docket entry} | Pursuant to minute order of 2/14/02, and having been mailed in error, this

and Order.

No notices required, advised in open court.
5

No notices required.
q umber of notices.

Document
Number

Notices mailed by judge’s staff.

eB 27 g0ae

Notified counsel by telephone date docketed

Docketing to mail notices.

Mail AO 450 form.

id Sn doce deputy bitials
Copy to judge/magistrate judge.
2/25/2002
S201 69 date mailed noi
courtroom: ad BOM led notice
rs deputy’s .
initials = 3
Vk Ss Date/tinie received in
central Clerk’s Office ailing deputy initials



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

® “[AJithough 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. )
)
PAUL MODROWSKI (B-65896), )
)
Petitioner, ) No. 01 C 4183

)
vy. )

) 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, Zaliani 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 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

cause for his late filing. Respondent also strongly disagrees with petitioner's premise that his

¥ 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.

2 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.