Equitable Tolling Available in Rule 32 Cases
The Alabama Supreme Court, in Ex parte Ward, No. 1051818, 2007 WL 1576054 (Ala. June 1, 2007), held as a matter of first impression that the one-year statute of limitations for filing a Rule 32 petition is not a jurisdictional bar and the doctrine of equitable tolling is available to permit filing outside the one-year period in extraordinary cases.
The Alabama Supreme Court’s decision details John Michael Ward’s years-long effort to find a lawyer who would file a Rule 32 petition on his behalf. As the court points out, Mr. Ward has been represented by nine different lawyers throughout his direct appeal, Rule 32, and federal habeas proceedings. The lawyer appointed to file his Rule 32 petition never filed the petition and was suspended from the practice of law. Another lawyer hired by Mr. Ward’s family to file a Rule 32 petition instead filed a federal habeas petition.
While Mr. Ward sought unsuccessfully to find competent counsel, his limitations period for filing a Rule 32 petition expired. A lawyer then filed a Rule 32 petition raising only claims of ineffective-assistance-of-counsel. The State moved to dismiss the petition and Mr. Ward filed a pro se motion for leave to amend his petition. The trial court dismissed the petition as untimely on December 19, 2005, and a notice of appeal was filed. On January 10, 2006, the trial court granted Mr. Ward’s motion for leave to amend. The Court of Criminal Appeals held that the trial court erred in granting the motion for leave to amend and, without an opinion, affirmed the summary dismissal of Mr. Ward’s petition.
The Alabama Supreme Court granted certiorari to consider whether the Court of Criminal Appeals erred in holding that the trial court had no power to grant a motion to amend filed after the entry of judgment and whether the limitations period in Rule 32.2(c) is jurisdictional – and if not, whether the court should adopt the doctrine of equitable tolling. Because it found that Mr. Ward sought to present new information in his motion to amend – not to have previously presented information reconsidered – the Alabama Supreme Court held that the trial court could not have construed the motion to amend as a motion for reconsideration and, therefore, affirmed the Court of Criminal Appeals as to the first issue.
Statute of Limitations is Not Jurisdictional
Regarding the statute of limitations, the Alabama Supreme Court agreed with Mr. Ward that interpreting Rule 32.2(c) as establishing a jurisdictional bar prohibiting untimely petitions violates Art. VI, § 150 of the Alabama Constitution of 1901, which in empowering the Alabama Supreme Court to promulgate court rules, specifically provides that any such rule “shall not . . . affect the jurisdiction of circuit and district courts.” Accordingly, the court held that the limitations provision of Rule 32.2(c) is an affirmative defense and not a jurisdictional bar.
The court noted that, as an affirmative defense, the limitations provision may be waived by the State and may be raised by an appellate court sua sponte “only in extraordinary circumstances.” Id. at 7 n.5. However, the State raised the limitations defense in Mr. Ward’s case, which led the court to address whether equitable tolling was available.
The court held that equitable tolling is available “in extraordinary circumstances that are beyond the petitioner’s control and that are unavoidable even with the exercise of diligence.” Id. at 8. It recognized that “the consequences of error are terminal” in a capital case and therefore focused on whether “principles of equity would make the rigid application of a limitation period unfair” and “whether the petitioner has exercised reasonable diligence in investigating and bringing the claims.” Id. (internal quotations omitted).
The court nonetheless emphasized that the equitable tolling threshold is very high and made clear that, when a petition is time-barred on its face, the petitioner bears the burden of demonstrating in his petition that there are such extraordinary circumstances justifying the application of equitable tolling. The court concluded that “[a] petition that does not assert equitable tolling, or that asserts it but fails to state any principle of law or any fact that would entitle the petitioner to the equitable tolling of the applicable limitations provision, may be summarily dismissed without a hearing.” Id. at *9 (citing Ala. R. Crim. P. 32.7(d)).
The court’s ruling in Ex parte Ward makes clear that, while available in theory, the equitable tolling doctrine will be applied exceedingly rarely and is no substitute for filing a timely Rule 32 petition. The court reversed and remanded “for further proceedings consistent with this opinion” but did not decide whether the extraordinary circumstances present in Mr. Ward’s case merit equitable tolling, which taken together with the applicable of equitable tolling in the federal habeas context demonstrates how difficult it will be for a petitioner to trigger equitable tolling to excuse an out-of-time Rule 32 petition.