Robertson v. Simpson, 07-6191.

• Citation: 624 F.3d 781
• Decision Date: 12 November 2010
• Docket Number: No. 07-6191.,07-6191.
• Parties: Curtis ROBERTSON, Petitioner-Appellant, v. Tom SIMPSON, Warden, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

624 F.3d 781

Curtis ROBERTSON, Petitioner-Appellant,
v.
Tom SIMPSON, Warden, Respondent-Appellee.

No. 07-6191.

United States Court of Appeals,Sixth Circuit.

Nov. 12, 2010.

624 F.3d 781

ON BRIEF: Matthew M. Robinson, Robinson & Brandt, PSC, Covington, Kentucky,

624 F.3d 782

for Appellant. Todd D. Ferguson, Office of the Kentucky Attorney General, Frankfort, Kentucky, for Appellee.

Before: MARTIN, COLE, and CLAY, Circuit Judges.

OPINION BOYCE F. MARTIN, JR., Circuit Judge.

Curtis Robertson filed his petition for a writ of habeas corpus approximately one month beyond the one-year statute of limitations. Robertson argues that the district court should equitably toll the limitation period because the untimely filing was a result of his attorney misadvising him of the deadline while using cocaine. The district court held that Robertson failed to meet his burden of proving that he was entitled to equitable tolling. We REMAND the case for a determination of whether Robertson's attorney's cocaine use and possible misadvice constitute sufficient extraordinary circumstances to entitle Robertson to equitable tolling.

I. BACKGROUND

The Antiterrorism and Effective Death Penalty Act states that a “1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1) (2006). The limitation period begins to run from the latest of four circumstances, which for this case is “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Id. § 2244(d)(1)(A). The limitation period is tolled by a “properly filed application for State post-conviction or other collateral review.” Id. § 2244(d)(2).

The relevant dates for determining when the statute of limitations expired are undisputed. A jury convicted Robertson of murder on September 3, 1999. Robertson pursued a direct appeal to the Kentucky Supreme Court, which affirmed his conviction, then issued an order denying a petition for rehearing on September 26, 2002. Robertson had an additional ninety days within which to file a petition for writ of certiorari with the United States Supreme Court, which he did not do. See Lawrence v. Florida, 549 U.S. 327, 333, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007) (holding that “direct review” under section 2241(d)(1)(A) includes review by the U.S. Supreme Court). Thus, the statute of limitations for filing a federal habeas corpus action began to run on December 25, 2002.

Approximately one month after the limitation period began to run, Robertson filed a motion for a court order vacating his judgment of conviction and sentence pursuant to Kentucky Rule of Criminal Procedure 11.42, which tolled the running of the statute of limitations. The circuit court denied his motion and the Kentucky Court of Appeals affirmed. The denial of Robertson's Rule 11.42 motion became final when the Supreme Court of Kentucky denied discretionary review on December 8, 2004. Then, the statute of limitations began to run again, with approximately one month elapsed and eleven months remaining. The limitation period expired on November 8, 2005.

Robertson retained Attorney David Scacchetti to represent him in filing this habeas petition. Although it is unclear when Robertson first consulted Scacchetti, Robertson claims in his briefs that it was several months before the deadline for filing a section 2254 petition. During at least part of the limitation period from December 8, 2004 to November 8, 2005, Scacchetti was using cocaine, as documented in a disciplinary proceeding against

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him. See Disciplinary Counsel v. Scacchetti, 114 Ohio St.3d 36, 867 N.E.2d 830 (2007). This record shows that in 2003, Scacchetti began to suffer from chronic pain caused by a staph infection and an injured disc in his neck. Id. at 831. To relieve the pain, he began using cocaine. Id. In October 2005, he was arrested while trying to buy cocaine and closed his law practice within two weeks. Id. Just as the statute was running out for Robertson, Scacchetti was indicted for possession of cocaine in November 2005 and found guilty in December 2005. Id. He completed intensive outpatient rehabilitation in early December 2005 and entered inpatient treatment. Id. The Supreme Court of Ohio suspended Scacchetti from the practice of law in Ohio for two years, but stayed eighteen months of the sanction provided that he adhere to certain conditions. Id. at 833.

Although it is unclear precisely when Scacchetti withdrew and Robertson retained a new attorney, Robertson claims in his briefs that Attorney Matthew Robinson took over his case in December 2005. Robinson filed a petition for a writ of habeas corpus on behalf of Robertson on December 7, 2005, approximately one month after the statute of limitations expired. The case was referred to a magistrate judge, who ordered Robertson to show cause why his petition should not be dismissed as untimely. Robertson argued that the statute of limitations should be equitably tolled because Scacchetti misadvised him while using cocaine that the deadline for filing the petition was December 8, 2005. Robertson has not specified exactly when he received the misadvice.

The magistrate judge issued a Report and Recommendation determining that Robertson's petition should be dismissed as untimely filed. Robertson filed objections to the report and asked the district court to take judicial notice of the Ohio Supreme Court's disciplinary opinion documenting Scacchetti's cocaine use, arrest, and suspension from practice of law.

The district court followed the magistrate judge's recommendation and issued an Order and Judgment dismissing Robertson's petition as untimely. The district court stated that it was compelled to dismiss the petition based on Lawrence, 549 U.S. at 336, 127 S.Ct. 1079, which held that an attorney miscalculation is insufficient to warrant equitable...