Weinstein Bashed For Failing Client
Clarifying the standard for equitable tolling under the federal habeas statute, 28 U.S.C. § 2255, the 2nd Circuit said that a combination of due diligence by the petitioner and the “extraordinary circumstances” created by an attorney’s failure may rescue a petition that is untimely under the one-year statute of limitations.
The court reversed a District of Connecticut judge’s refusal to grant the petition in Baldayaque v. U.S. Heriberto Baldayaque, a citizen of the Dominican Republic, was sentenced to serve 14 years in prison in 1996 after pleading guilty to conspiracy to deal heroin. Shortly after his appeal was denied, Baldayaque’s wife retained Bridgeport attorney Burton Weinstein for $5,000 to represent him.
Weinstein allegedly told Baldayaque’s wife that it was too late to file a petition, even though there as still almost 14 months in which to do so. But the attorney also said he had learned that the Dominican Republic would accept Baldayaque if he were deported and the client might be deported early because he was sick with tuberculosis.
Weinstein, of Weinstein, Weiner, Ignal, Napolitano & Shapiro, made an application for immediate deportation, but a district court said it lacked jurisdiction to issue such an order, and found that the motion, even if “cognizable,” was untimely.
After the district court denied his motion, Weinstein wrote a letter to Baldayaque telling him the motion had been denied and he saw “no basis for appeal.” The letter was returned to Weinstein as undeliverable. Weinstein then spoke to an associate of Baldayaque’s wife by phone, saying “There is nothing we can do now.”
Baldayaque ultimately filed a § 2255 petition pro se, well after the one-year limitation period has expired.
U.S. District Judge Janet Bond Arterton denied Baldayaque’s petition as untimely under the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act (AEDPA).
In addition, the judge ruled that Baldayaque could not fault his attorney because 2nd Circuit case law always precluded equitable tolling due to the extraordinary actions of the petitioner’s lawyer.
But writing for the 2nd Circuit on Baldayaque’s appeal, Senior Judge Thomas J. Meskill said, “We do not believe that Smaldone’s holding is so far-reaching.”
“It is not inconsistent to say that attorney error NORMALLY will not constitute the extraordinary circumstances required to toll the AEDPA limitations period while acknowledging that at some point, an attorney’s behavior may be so outrageous or so incompetent as to render it extraordinary,” Meskill said.