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: Defense Newsletter Blog

McNeil: Extraordinary Attorney Negligence Tolls AEDPA period

By Tim Cone

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In Downs v. McNeil, No. 05-10210 (March 24, 2008), the Court held that equitable tolling may apply to a Florida death row inmate?s otherwise untimely federal habeas petition.The Court recognized that a showing of "ordinary" attorney negligence would not suffice to equitably toll AEDPA?s statute of limitations. Here, however, Downs showed "extraordinary" negligence and even wilful misconduct, including an instance where an attorney lied to him about having filed a document that would have tolled the running of his limitations period. In view of the "extraordinary circumstances" presented, the Court remanded the case for an evidentiary hearing to determine whether equitable tolling applied.

Full post as published by Defense Newsletter Blog on March 26, 2008 (boomark / email).

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