624 F.3d 781 (6th Cir. 2010), 07-6191, Robertson v. Simpson

Docket Nº:07-6191.
Citation:624 F.3d 781
Opinion Judge:BOYCE F. MARTIN, JR., Circuit Judge.
Party Name:Curtis ROBERTSON, Petitioner-Appellant, v. Tom SIMPSON, Warden, Respondent-Appellee.
Attorney:Matthew M. Robinson, Robinson & Brandt, PSC, Covington, Kentucky, for Appellant. Todd D. Ferguson, Office of the Kentucky Attorney General, Frankfort, Kentucky, for Appellee.
Judge Panel:Before: MARTIN, COLE, and CLAY, Circuit Judges.
Case Date:November 12, 2010
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
FREE EXCERPT

Page 781

624 F.3d 781 (6th Cir. 2010)

Curtis ROBERTSON, Petitioner-Appellant,

v.

Tom SIMPSON, Warden, Respondent-Appellee.

No. 07-6191.

United States Court of Appeals, Sixth Circuit.

November 12, 2010

ON BRIEF:

Matthew M. Robinson, Robinson & Brandt, PSC, Covington, Kentucky,

Page 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

Page 783

him. See Disciplinary Counsel v. Scacchetti, 114 Ohio St.3d 36, 867 N.E.2d 830...

To continue reading

FREE SIGN UP