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Wiley Rein Appellate Group Files Certiorari Petition with Supreme Court in Important Case Involving Equitable Tolling

May 8, 2014

On May 15, 2014, the Supreme Court of the United States will decide whether to grant a petition for a writ of certiorari filed by Wiley Rein’s Appellate Group that raises an important question involving the equitable tolling of federal statutes of limitations. 

Wiley Rein’s client, Panos Tsolainos, missed the one-year deadline to file a federal habeas corpus petition because his former attorneys (among other things) failed to research the statutory deadline for filing his petition.  After taking over the case, Wiley Rein filed a habeas corpus petition on Mr. Tsolainos’s behalf and argued that the court should treat Mr. Tsolainos’s petition as timely under the doctrine of equitable tolling.  Relying on the Supreme Court’s decision in Holland v. Florida, Wiley Rein argued that Mr. Tsolainos was entitled to equitable tolling because “extraordinary circumstances” prevented him from filing a timely petition and because he acted “diligently” throughout the entire period in which he sought to toll.  The district court and Fifth Circuit, however, declined to equitably toll the statute of limitations.  While it assumed that Mr. Tsolainos had demonstrated extraordinary circumstances, the Fifth Circuit found that Mr. Tsolainos was not entitled to equitable tolling because he had waited too long to file his petition after discovering his former attorneys’ errors.  In other words, to obtain equitable tolling, the Fifth Circuit found that Mr. Tsolainos needed to file as “expeditiously” as possible.

Wiley Rein’s certiorari petition asks the Supreme Court to decide a question on which six courts of appeals are divided:  Whether a habeas corpus petitioner is entitled to one full year, free from impediments like the gross misconduct in which his attorneys engaged, to file a federal habeas corpus petition.  In the Second, Ninth, and Eleventh Circuits, Mr. Tsolainos’s petition would have been timely because a habeas corpus petitioner is always afforded the entire limitations period to file his petition—regardless of how quickly the petitioner files after discovering his attorneys’ errors.  By contrast, in the Fifth, Sixth, and Seventh Circuits, a habeas corpus petitioner is not entitled to the full one-year limitations period unless he is “diligent” at all times, even during periods he does not seek to toll. 

The resolution of this circuit split has major implications for prisoners seeking habeas relief.   When a prisoner discovers that his attorneys missed his filing deadline, his options are uncertain.  For example, a petitioner will wonder whether he is obligated to move as fast as he can to file a petition, sacrificing quality for speed, or whether he can he take the time necessary to prepare a quality petition, knowing that he is entitled to the full one-year statute of limitations period in which to file.  Granting Mr. Tsolainos’s petition to resolve this entrenched circuit split would help provide more clarity to a habeas process that is too often opaque and confusing to prisoners seeking to vindicate their constitutional rights.

Attorneys from Wiley Rein’s Appellate Group, including co-chair Andrew G. McBride, William S. Consovoy, Brendan J. Morrissey, Brett A. Shumate, and J. Michael Connolly, filed the petition in the Supreme Court. 

To read the petition, click here.