2d Circuit Notes Split Re Applicable Standard of Review for Equitable Tolling Determinations Under AEDPA of Questions Other Than Findings of Fact

Per Belot v. Burge, 490 F.3d 201 (2d Cir.(N.Y.) Jun 20, 2007) (NO. 05-6875-PR):

We have held that "in rare and exceptional circumstances a petitioner may invoke the courts' power to equitably toll the limitations period." Doe v. Menefee, 391 F.3d 147, 159 (2d Cir.2004) (quotation marks omitted). "To qualify for such treatment, the petitioner must establish that extraordinary circumstances prevented him from filing his petition on time, and that he acted with reasonable diligence throughout the period he seeks to toll." Id. (quotation marks omitted).

A threshold question is what standard of review we should apply when reviewing a district court's denial of equitable tolling as to a petition under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. In Baldayaque v. United States, 338 F.3d 145 (2d Cir.2003), we reviewed the district court's finding of fact for clear error and applied de novo review to the district court's analysis of a controlling legal question. Id. at 151. That case, however, did not involve our circumstances, where the district court denied equitable tolling not as a matter of law, but as an exercise of its discretion. We decide this as a matter of first impression in our Circuit.

Other circuits are divided on the applicable standard of review for equitable tolling determinations under AEDPA of questions other than findings of fact. Some circuits have held that when the facts are undisputed, the district court's decision on equitable tolling is reviewed de novo. See Brinson v. Vaughn, 398 F.3d 225, 231 (3d Cir.2005) (Alito, J.) (noting but not holding that "we are inclined to believe that where, as here, the relevant facts are not disputed, a District Court's decision on the question whether a case is sufficiently 'extraordinary' to justify equitable tolling should be reviewed de novo."); FN3 Wade v. Battle, 379 F.3d 1254, 1264 n. 11 (11th Cir.2004) ("We review de novo a district court's decision on equitable tolling."); Dunlap v. United States, 250 F.3d 1001, 1007 n. 2 (6th Cir.2001) ("In this Circuit, we hold that where the facts are undisputed or the district court rules as a matter of law that equitable tolling is unavailable, we apply the de novo standard of review to a district court's refusal to apply the doctrine of equitable tolling; in all other cases, we apply the abuse of discretion standard." (emphasis added)); Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999) ("[W]here, as here, the facts are undisputed as to the question of equitable tolling, we review de novo....").

FN3. In Brinson, the court explained its reason for finding de novo review to be the appropriate standard:

First, a District Court does not have any comparative advantage in deciding whether particular circumstances are extraordinary enough to warrant the application of the doctrine. Second, reversal of a District Court's ruling on this issue will not lead to a retrial or any other comparably burdensome proceedings. Third, de novo review leads to greater uniformity in the application of the doctrine and better serves the goal of ensuring that the doctrine is indeed used "sparingly" and is not employed to upset the strong concern for finality embodied in 28 U.S.C. § 2254. Brinson, 398 F.3d at 231.

Other circuits have held that the district court's decision on equitable tolling is reviewed for an abuse of discretion. See Cordle v. Guarino, 428 F.3d 46, 47 (1st Cir.2005) ("We review the district court's decision regarding equitable tolling in this habeas case for abuse of discretion."); Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir.2003) ("[W]e review the district court's decision on equitable tolling of the limitation period for an abuse of discretion."). Several Circuits, however, take a third approach and provide for de novo review when the district court denies equitable tolling as a matter of law, and abuse of discretion in other circumstances where the court's decision is based on exercise of discretion. See Rouse v. Lee, 339 F.3d 238, 248 (4th Cir.2003) ("[W]here the relevant facts are undisputed and the district court denied equitable tolling as a matter of law, we review the district court's decision de novo. In all other circumstances, we review the denial of equitable tolling for an abuse of discretion." (emphasis added)); United States v. Saro, 252 F.3d 449, 455 n. 9 (D.C.Cir.2001) ("We have examined whether the court was 'correct,' rather than whether it 'abused its discretion,' because we employ de novo review when a district court holds-as the court appears to have done here-that the facts cannot justify equitable tolling as a matter of law."); Molo v. Johnson, 207 F.3d 773, 775 (5th Cir.2000) (reviewing a district court's denial of equitable tolling for abuse of discretion but noting that de novo review applies where district court denies equitable tolling as a matter of law); cf. Jihad v. Hvass, 267 F.3d 803, 806 n. 3 (8th Cir.2001) (ruling that in a case where the district court denied equitable tolling as a matter of law, "we have reviewed its ruling de novo.").


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