Table of Contents Introduction I. Federal Habeas Corpus, AEDPA's Statute of Limitations, and the Holland v. Florida Doctrine of Equitable Tolling A. AEDPA and the Origins of the Problem B. Holland and Maples C. The Circuit Courts' Confusion on Holland II. Agency and Its Application to the Lawyer-Client Relationship A. Agency Generally B. Agency and the Relationship Between Clients and Lawyers C. The Failure of the Formalist Agency Regime III. Link v. Wabash Railroad and the Erosion of the Agency Theory in the Civil Context IV. The "Extraordinary Circumstance" Prong of the Holland Test: Implementing a Negligence Standard A. The Reasons for a Negligence Standard B. Implementing a Negligence Standard V. The "Diligence" Prong of the Holland Test A. The Inherent Unfairness of the Diligence Requirement B. The Diligence Requirement Fails to Accord with the Principled Agency Approach to the Lawyer-Client Relationship Conclusion Introduction
Few areas of American law are more procedurally complicated, ethically challenging, or jurisprudentially flawed than that governing the habeas review of capital convictions. (1) The degree of complexity both in the law's design and in the ways in which it has failed is truly astounding, encompassing everything from racial injustice to cutting-edge DNA technology; from the tensions among truth, justice, and finality to the practical shortcomings of our system of indigent defense. No observer could possibly tackle this web of issues globally; instead, we propose to focus on one problem that may, in both its persistence and abstruseness, reflect the failings of habeas law more broadly, as well as say something about the values of our system of legal representation. At the very heart of this problem is the relationship between the lawyer and her client, the basic unit that grounds all of American law.
Our focus is the statutory deadline to seek federal habeas review of state court convictions--more specifically, the common law that governs when and how that deadline might be tolled should a habeas petitioner miss it due to his lawyer's error. The federal Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) (2) establishes this statutory deadline; (3) and the standard a petitioner must meet to toll the deadline has been defined by a collection of judicial decisions, primarily the Supreme Court's decisions in Holland v. Florida (4) and Maples v. Thomas. (5) Our goal is to examine how this standard has been applied by the lower courts, to explicate the principles that animate the standard, and to develop a theory that better aligns the standard with those principles. Because of the standard's deep roots in the lawyer-client relationship, our study of the standard's inner workings will also shed light on the American system of legal representation more generally.
The standard, which requires a habeas petitioner to show that he "pursu[ed] his rights diligently" and that "some extraordinary circumstance" prevented timely filing, (6) has come to be defined by an agency theory of the relationship between lawyer and client. (7) The lawyer is her client's agent. As such, the lawyer must follow her client's directives; similarly, the client is held constructively responsible for his lawyer's errors. (8) This basic formula, what we call the "formalist agency regime," has come to dominate legal thinking about the relationship between lawyers and clients. (9) It also has blinded courts to the complexities of that relationship and to the importance of context in evaluating how that relationship actually functions in any particular case. (10) Based on our analysis of the principles undergirding agency law--through which we develop what we call the "principled agency approach"--we conclude that the agency theory of the lawyer-client relationship ought to give rise to a unique legal standard in the postconviction context. Indeed, courts' strict formalist understanding of the agency idea has led, in many cases, to profoundly unjust results for prisoners seeking federal habeas review of their convictions when their lawyers negligently mishandled their habeas petitions.
Consider a prisoner waiting in a cell on death row for his execution date to arrive. (11) He has attempted to petition for a writ of habeas corpus to seek constitutional review of his conviction, thereby assuring that every avenue of justice has been pursued before the state can administer a lethal injection. He has no money and little access to any sort of useful information. Yet he has been able to establish contact with a team of law students who operate a clinic seeking to aid clients in exactly his position. The clinic, overburdened by its work with a huge number of similarly situated clients, secures professional representation for the inmate. The out-of-state lawyer they identify finds local counsel to complete the legal team.
The out-of-state and local lawyers assume responsibility for their new client's habeas petition. Soon, the two lawyers stop communicating with one another and with their client. Meanwhile, the local counsel, who has a history of substance abuse and is on probation for his own legal and ethical misdeeds, neglects to pay a required filing fee by the AEDPA deadline. Within months, the out-of-state counsel renounces his responsibility for the case, and the local counsel, overwhelmed by depression and addiction, commits suicide. The amount of time that has elapsed since the missed deadline continues to grow. No reasonable person could conclude that these lawyers pursued their client's best interests; yet, because of the missed deadline, the court dismisses the prisoner's habeas petition. Under the current standard, this inmate would most likely have no mechanism by which to seek a remedy for his lawyers' failure to pay the filing fee in a timely manner. He would not be able to toll the deadline. (12)
Such outcomes are shockingly common. (13) Based on our analysis of agency law, our assessment of the relationship between lawyer and client, and our application of these ideas to the postconviction equitable tolling context, we propose a new tolling standard--one that would permit prisoners in positions similar to that described above to seek and receive federal constitutional review of their state court convictions, despite the failings of their lawyers.
The Essay proceeds in five parts. Part I examines the legal background on AEDPA's filing deadline, explaining the current law on tolling the AEDPA deadline and its grounding in the courts' rigid application of agency law to the lawyer-client relationship; this Part focuses specifically on AEDPA itself and the tolling standard enunciated in Holland and confused by the federal courts of appeals after Maples. Part II then analyzes the deeper principles undergirding agency law and how those principles ought to shape an agency theory of the relationship between lawyer and client. Part III continues that analysis by examining the origins and evolution of the agency theory of the lawyer-client relationship. Part IV then reviews the "extraordinary circumstance" prong of the current equitable tolling standard and proposes it be replaced by a negligence standard. Part V finally assesses the "diligence" prong of the standard and proposes that prong be eliminated altogether.
Federal Habeas Corpus, AEDPA's Statute of Limitations, and the Holland v. Florida Doctrine of Equitable Tolling
AEDPA and the Origins of the Problem
Congress passed AEDPA amid a longstanding debate regarding the purpose, scope, and effectiveness of federal habeas review. (14) Proponents of the statute saw AEDPA as an important legislative step culminating more than twenty years of Supreme Court decisions limiting inmates' access to federal habeas review. (15) These advocates believed that federal courts were flooded with frivolous habeas petitions coming years after convictions, which rarely were successful in obtaining relief. (16) AEDPA was a victory for those who long argued for limits on federal habeas review in order to ensure the finality of criminal convictions. (17) With AEDPA, Congress both required federal courts to employ a stringent standard of review for state convictions and created, for the first time, a one-year statute of limitations period for filing petitions for writs of habeas corpus in federal court. (18)
The statute, however, did not settle debates about the proper role of federal habeas review. AEDPA's critics continue to assert that federal habeas corpus must be expanded to protect the rights of defendants, (19) or to protect the balance of power between federal and state courts in adjudicating questions of federal constitutional law. (20) Further, they point to the fact that, though overturned convictions are rare in federal habeas in general, they are less rare in capital cases. (21) For example, of the twelve Texas death row inmates who have been exonerated since 1987, five of them found this extensive relief as a result of federal habeas corpus proceedings. (22)
While avoiding explicit entanglement with these debates, the Supreme Court expanded access to federal habeas corpus in Holland v. Florida (23) and Maples v...