15-481
Davis v. Lempke

                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT
ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
18th day of April, two thousand nineteen.

Present:
            GUIDO CALABRESI,
            DEBRA ANN LIVINGSTON,
            RAYMOND J. LOHIER, JR.,
                  Circuit Judges.
_____________________________________

WARREN DAVIS,

                       Petitioner-Appellant,

                  v.                                               15-481

SUPERINTENDENT         JOHN     LEMPKE,        Wende
Correctional Facility,

                  Respondent-Appellee.
_____________________________________

For Petitioner:                           ROBERT A. CULP, Law Office of Robert A. Culp,
                                          Garrison, NY.

For Respondent:                           LISA M. DENIG, Assistant District Attorney, for
                                          Anthony A. Scarpino, Jr., District Attorney of
                                          Westchester County, White Plains, NY.

        Appeal from a judgment of the United States District Court for the Southern District of


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New York (Furman, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Petitioner Warren Davis (“Davis”) appeals from a December 6, 2016 Memorandum

Opinion and Order of the United States District Court for the Southern District of New York

(Furman, J.), dismissing Davis’s petition for a writ of habeas corpus under 28 U.S.C. § 2254 as

time-barred. On appeal, Davis concedes that he failed to file his habeas petition before the deadline

set forth in § 2244(d)(1) but argues that the late filing was the fault of his attorney, Joseph M.

Latino (“Latino”), and that he should be entitled to equitable tolling of the statute of limitations.

We assume the parties’ familiarity with the underlying facts, the procedural history of the case,

and the issues on appeal.

       We review the district court’s “legal determinations de novo” and “its factual findings for

clear error.” Rivas v. Fischer, 687 F.3d 514, 534 (2d Cir. 2012). Under the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”), habeas petitions must be filed within one year

of the date on which the petitioner’s state judgment became final. 28 U.S.C. § 2244(d)(1). A

judgment becomes final “after the denial of certiorari [by the U.S. Supreme Court] or the expiration

of time for seeking certiorari.” Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001). Consequently,

state judgments are deemed final if no petition for a writ of certiorari has been filed with the

Supreme Court within 90 days. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998); Sup. Ct. R. 13.

       The filing of certain state court collateral attacks on a judgment, including New York

coram nobis petitions, tolls AEDPA’s one-year statute of limitations. 28 U.S.C. § 2244(d)(2); see

Smith v. McGinnis, 208 F.3d 13, 15–16 (2d Cir. 2000). “[P]roper calculation of § 2244(d)(2)’s

tolling provision excludes time during which properly filed state relief applications are pending


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but does not reset the date from which the one-year statute of limitations begins to run.” Smith,

208 F.3d at 16 (emphases added). In “rare and exceptional” circumstances, AEDPA’s one-year

statute of limitations can be equitably tolled to permit the filing of an otherwise time-barred

petition. Id. at 17 (citation omitted). Courts must decide whether equitable tolling is applicable on

a “case-by-case basis,” while still being “governed by rules and precedents” and “draw[ing] upon

decisions made in other similar cases for guidance.” Holland v. Florida, 560 U.S. 631, 649–50

(2010) (citations omitted). To invoke the doctrine of equitable tolling, a petitioner bears the burden

of establishing two elements: “(1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

       We conclude that Davis has not established either element. To meet his burden of

establishing that some extraordinary circumstance exists, Davis must show something more than

a “garden variety claim of excusable neglect, such as a simple miscalculation that leads a lawyer

to miss a filing deadline.” Holland, 560 U.S. at 651–52 (citations and internal quotation marks

omitted). Circumstances based on attorney negligence “must be so egregious as to amount to an

effective abandonment of the attorney-client relationship.” Rivas, 687 F.3d at 538. Here, Latino

made a mistake in calculating the deadline for filing Davis’s habeas petition that resulted in the

petition being filed on May 22, 2014, well past the actual deadline of November 5, 2013. The

source of his mistake was an erroneous belief that § 2244(d)(2)’s one-year limitation period

restarted after Davis’s coram nobis petition was denied by a judge on the New York Court of

Appeals.

       This mistake does not amount to abandonment of the attorney-client relationship. Unlike

cases where courts have found extraordinary circumstances, here, Latino communicated regularly

with Davis (both before and after he made the mistake), researched the issues relevant to Davis’s


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habeas petition, and ultimately filed that petition. Cf., e.g., Holland, 560 U.S. at 652–53

(determining that extraordinary circumstances likely existed where an attorney failed to research

a case, failed to inform his client about crucial developments, and failed to respond to his client’s

many letters asking for an update); Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir. 2003)

(determining that extraordinary circumstances existed where an attorney “failed to file such a

petition at all,” “did no legal research,” and “never spoke to or met” his client). No extraordinary

circumstances exist here.

       Nor has Davis shown that he was reasonably diligent in pursuing his rights. To invoke

equitable tolling, Davis must have “acted with reasonable diligence throughout the period he seeks

to toll.” Smith, 208 F.3d at 17 (emphasis added). Merely retaining an attorney “does not absolve

the petitioner of his responsibility for overseeing the attorney’s conduct or the preparation of the

petition.” Doe v. Menefee, 391 F.3d 147, 175 (2d Cir. 2004). And “because petitioners often are

fully capable of preparing and filing their habeas petitions pro se, . . . it would be inequitable to

require less diligence from petitioners who are able to hire attorneys than from those who are

forced to proceed pro se.” Id. Thus, even if a petitioner can show extraordinary circumstances

resulting from attorney incompetence, “the petitioner must still demonstrate that he himself made

reasonably diligent attempts to ensure that his petition was filed on time.” Id.

       Here, Davis argues that he was reasonably diligent because he sent three letters to Latino

in February and March 2013, urging Latino to comply with AEDPA’s one-year statute of

limitations. But all of these letters were sent before Latino first communicated the erroneous

deadline to Davis in July 2013. Upon learning of Latino’s mistake, then, Davis had four months

until the November 5, 2013 deadline, during which time he could have reached out to Latino or

taken steps to file a pro se habeas petition. Instead, there is no evidence in the record here that


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Davis even communicated with Latino until February 2014—nearly a year after Davis’s previous

communication, and long after the November filing deadline had passed. As the district court

noted, “there is no evidence that [Davis] made any effort to respond to Latino’s letters or otherwise

contact him from March 2013, through the deadline to file a federal habeas petition in November

2013.” SPA-7. We see no basis in the record to disturb that finding. As a result, even if Davis could

show that Latino’s mistake constituted an extraordinary circumstance, Davis’s conduct

“throughout the period he seeks to toll,” Smith, 208 F.3d at 17, was not sufficient to constitute

reasonable diligence.1

                                            *       *       *

        We have considered Davis’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




1
  Nothing Latino did “actually impede[d] timely filing” of the habeas petition. Martinez v. Superintendent
of E. Corr. Facility, 806 F.3d 27, 33 n.2 (2d Cir. 2015) (emphasis added). Latino did not abandon Davis,
as is evident by his continued communication with Davis, and thus Davis “bears the risk of [Latino’s]
negligence (with respect to missed deadlines and otherwise).” Id. (citing Lawrence v. Florida, 549 U.S.
327, 336 (2007)).


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