The opinion of the court was delivered by: Anita B. Brody, J.
Petitioner moves for modification of my Judgment denying his petition for a writ of habeas corpus. For the following reasons, I find that Ragan's petition is time-barred because he did not act with reasonable diligence after the extraordinary circumstances preventing his filing had resolved.
On March 6, 2008, I issued a Memorandum and Order (Doc. #78) holding that Derrick Ragan ("Ragan") had filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition").*fn1 I was advised by both parties that my decision rested on the erroneous finding of law that Ragan's Petition was deemed filed on the date that Ragan filed a motion to proceed in forma pauperis ("IFP"). On June 24, 2008, I issued an Amended Memorandum and Order (Doc. #82) (hereinafter, the "Amended Order"), holding that Ragan's petition was time-barred because, under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), the relevant date for statute-of-limitation purposes is the date the actual habeas petition was filed, April 21, 2000, rather than the date the petitioner filed for IFP status, February 7, 2000.
On July 7, 2008, Ragan filed a second motion pursuant to Fed. R. Civ. P. 59(e) to modify the judgment (Doc. #83) (the "Motion"). In his Motion, Ragan argues that the court committed two legal errors in its Amended Order: first, that the court failed to properly consider whether the Petition was filed within a reasonable period of time after the extraordinary circumstances justifying equitable tolling had disappeared, and second, that the court failed to consider whether Ragan's claim of actual innocence entitles him to equitable tolling. I consider both arguments in turn. I will also consider Ragan's request for a certificate of appealability.
The one-year statute of limitations applicable in this case under AEDPA started running on April 24, 1996. The statute was tolled during the pendency of a Post Conviction Relief Act ("PCRA") petition that was filed in Pennsylvania state court on December 10, 1996, and was denied on June 28, 1999. On August 12, 1999, Ragan hired a private attorney to file his federal habeas petition. Ragan was subsequently abandoned by his attorney while he was diligently pursuing his rights. Based on the egregious acts of Ragan's attorney, I found that "extraordinary circumstances" existed to warrant equitable tolling. (Amended Order at 12.) The grounds for equitable tolling existed from August 12, 1999, until January 10, 2000, the date when Ragan realized that his attorney had forsaken him and he reached out to the Capital Habeas Unit of the Federal Defenders (the "Defenders") for legal assistance. (Amended Order at 12.) In my Amended Order, based on the 90 days that remained in the statute of limitations as of August 12, 1999, I held that Ragan should have filed his Petition within 90 days of January 10, 2000, that is, by April 10, 2000. (See Table 1 at Appendix A). I now find that the reasoning behind this calculation was wrong. A grant of equitable tolling, unlike statutory tolling, does not shift the deadline so that each day of tolling results in a one day postponement of the deadline. Phillips v. Heine, 984 F.2d 489, 492 (D.C. Cir. 1993). Rather, once the "extraordinary circumstances" justifying equitably tolling have disappeared, the petitioner must file as soon as is "reasonably possible." Walker v. Frank, 56 Fed. Appx. 577, 581-82 (3d Cir. 2003) (not precedential) ("[I]n situations in which equitable tolling initially applies, a party must file suit within a reasonable period of time after realizing that such a suit has become necessary."); Knight v. Schoefield, 292 F.3d 709 (11th Cir. 2002) ("After all statutory and equitable tolling periods are concluded, [the petitioner] should be given a reasonable time to file his federal habeas corpus motion."); Phillips, 984 F.2d at 492 ("The purposes of the doctrine [of equitable tolling] are fully achieved if the court extends the time for filing by a reasonable period after the tolling circumstance is mended.").
The extraordinary circumstances justifying equitable tolling in Ragan's case dissipated on or about January 10, 2000, when Ragan became aware of his predicament and secured alternative legal representation.*fn2 (Amended Order at 12.) Having already found that extraordinary circumstances prevented Ragan from filing his Petition before January 10, 2000, I must now determine whether the approximately 102 days*fn3 it took him to file it constitutes reasonable diligence under the circumstances.*fn4
Ragan has the burden of demonstrating that his diligence continued throughout the period of equitable tolling sought. Doe v. Menefee, 391 F.3d 147, 159 (2d Cir. 2004) ("To qualify for [equitable tolling], 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."). The tolling period must be "sufficient to permit the filing of a petition on or before the earliest date after the [extraordinary circumstances] by which that petitioner, acting with reasonable diligence, should have filed his or her petition." Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000). Courts are urged to remember that "[t]he standard is not 'extreme diligence' or 'exceptional diligence,' it is reasonable diligence. . . . [and when evaluating reasonable diligence] the district court should ask: did the petitioner act as diligently as reasonably could have been expected under the circumstances?" Baldayaque v. U.S., 338 F.3d 145, 153 (2d Cir. 2003) (emphasis in original). Reasonable diligence is required even where the extraordinary circumstances involve attorney incompetence, as they do in this case. In other words, the act of retaining an attorney does not absolve Ragan of his responsibility for overseeing the attorneys' conduct or the preparation of the petition. Doe, 391 F.3d at 175.
Because reasonable diligence is a fact-specific inquiry, courts have reached widely different conclusions as to what constitutes reasonable diligence. See Lytle v. McDaniel, 184 Fed. Appx. 595, 596 (9th Cir. 2006) (finding petitioner diligent in attempting to obtain his file from his attorneys such that a 56 day delay in filing a petition after receiving his file was reasonable); Brambles v. Duncan, 330 F.3d 1197, 1204 (9th Cir. 2003) (holding that taking 85 days to exhaust state remedies and return to federal court was reasonable diligence); Smith v. Ratelle, 323 F.3d 813, 815 (9th Cir. 2003) (granting equitable tolling for a petition filed 93 days late); Knight, 292 F.3d at 712 (holding that petitioner entitled to equitable tolling "should have been granted a reasonable time of one year. . . to file his federal motion"). But see Smith v. McGinnis, 208 F.3d 13, 17-18 (2d Cir. 2000) (finding no circumstances to warrant equitable tolling in the first instance but also stating that filing federal habeas petition 87 days after the state denied collateral relief did not demonstrate reasonable diligence); Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001) (waiting over four months to file habeas petition was not expedient enough to warrant equitable tolling); Fisher v. Johnson, 174 F.3d 710, 715-16 (5th Cir. 1999) (rejecting equitable tolling where prisoner had over six months to complete federal habeas petition after the termination of extraordinary circumstances, but noting that if his period of incapacity had "occurred shortly before the required filing, [petitioner] would have a stronger case").
Ragan submits the following in support of his claim of reasonable diligence:
C. The Defenders were new to the facts and circumstances of Ragan's particular case.
Therefore, in order to file a competent petition, the Defenders had to investigate his case from inception, both legally and factually, and it took time to acquire the necessary information, including transcripts of prior proceedings from prior counsel, police reports, prior investigation reports, and additional documents. (Pet'r's Reply Br. 9.)
C Ragan also contends that it took time to track down the sole testifying witness produced by the Commonwealth in this case to determine what his testimony would be if a hearing were granted. (Id. at 10.) Ragan's search was not fruitless: Ragan did obtain new evidence from this witness which he has proffered in support of his actual innocence claim. (Id. at 13.)
C This was a complex case involving time-consuming legal issues, as evidenced by the fact that the Commonwealth took over 400 days to respond to the petition, requesting ...