Protecting Access to the Great Writ: Equitable Tolling, Attorney Negligence, and AEDPA
Since the creation of the Antiterrorism and Effective
Death Penalty Act, attorneys have struggled to understand
and properly apply the Act's statute of limitations. As a
result, many attorneys have mistakenly filed federal
habeas petitions outside the Act's statute of limitations-
effectively barring their clients from federal court forever.
Attorneys who mistakenly misfile habeas petitions are left
with only one option: to request that the court equitably
toll the statute of limitations. While courts will not toll the
statute of limitations for mere negligence, courts are
divided on exactly what circumstances must exist before
allowing equitable tolling. Some courts require a showing
of professional misconduct or attorney abandonment,
while other courts require a lower showing of gross
negligence. This Note takes a closer look at the divided
opinions and argues that courts should adopt the lower
threshold of gross negligence. - A standard of gross
negligence will allow courts the flexibility needed in the
habeas context to make sure that petitioners are not
always barred due to the actions of their attorney.
Moroz, Mandi R.
"Protecting Access to the Great Writ: Equitable Tolling, Attorney Negligence, and AEDPA,"
Georgia Law Review: Vol. 51:
2, Article 8.
Available at: https://digitalcommons.law.uga.edu/glr/vol51/iss2/8