Tough luck, pal

Pity the inmate who blows a deadline in challenging his conviction. You have a one-year deadline to file a habeas corpus petition. There are exceptions to that rule, but the courts are not that forgiving.

The case is Jenkins v. Greene, decided on December 23. Jenkins was sentenced to two consecutive 25-year sentences for slashing people with a razor blade. His habeas petition says that he would have taken a plea bargain with a lighter sentence had his trial attorney told him about the possible sentence following trial. In a 2-1 decision, the Court of Appeals agrees that Jenkins got a particularly harsh sentence, but it holds that Jenkins waited too long to file the habeas petition alleging ineffective assistance.

Writing for the majority, Judge Lynch notes the general rule that "A litigant seeking equitable tolling must show both that he 'diligently' pursued his rights and that 'some extraordinary circumstance ... prevented timely filing.'" Jenkins says he faced such an extraordinary circumstance because, after repeated efforts, he could not get an affidavit from his trial lawyer, a necessary requirement in alleging ineffective assistance. But Judge Lynch says that New York cases hold that the inmate has two options in these cases: either timely produce the attorney's affidavit or explain why such an affidavit was not available. The majority concludes,

A requirement that a defendant alleging ineffective assistance of counsel must either submit an affidavit from his attorney or an explanation of why he cannot present such an affidavit from his attorney is not is not an extraordinary circumstance that "prevented [Jenkins from] timely filing” his claim for relief.

Judge Parker dissents, viewing New York cases as vague on what the inmate has to do to preserve his ineffective assistance claim. It is by no means clear, Judge Parker says, that the inmate who cannot get an affidavit from the trial lawyer can preserve his rights by showing why such an affidavit was unavailable. He writes:

The majority cites to cases where New York courts require either an attorney affidavit or an explanation for its absence, and suggest that in lieu of the affidavit, Jenkins should have supplied such an explanation in a sworn statement accompanying his affidavit. The fact that New York courts may not “inflexibly” require such an affidavit sidesteps the fact that some courts apparently do and some do not. My reading of the case law is that such an affidavit probably should be submitted. The majority believes that such an affidavit need not be submitted. If court of appeals judges can honestly disagree over this point of law it seems to me wrong for a court of equity to close the court to a pro se litigant who happened to find himself on the wrong side of this debate. This is especially so where the cost of his choice is an additional forty years of incarceration for a man who, as indicated below, may well have received constitutionally ineffective assistance of counsel. Where equity is the point of departure, this constellation of circumstances is, I believe, extraordinary.