Martinez v. Superintendent of Eastern Correctional Facility 1 In the 2

14‐1513
Martinez v. Superintendent of Eastern Correctional Facility
1
In the 2
United States Court of Appeals 3
For the Second Circuit 4
________ 5
6
A UGUST TERM , 2015 7
8
A RGUED: A UGUST 26, 2015 9
D ECIDED: NOVEMBER 10, 2015 10
C ORRECTED: NOVEMBER 12, 2015 11
12
No. 14‐1513 13
14
D AVID MARTINEZ , 15
Petitioner‐Appellant, 16
17
v. 18
19
S UPERINTENDENT OF E ASTERN C ORRECTIONAL F ACILITY , 20
Respondent‐Appellee.1 21
________ 22
23
Appeal from the United States District Court 24
for the Eastern District of New York. 25
No. 11 Civ. 4330 – Nina Gershon, Judge. 26
________ 27
28
Before: WALKER , JACOBS , and L IVINGSTON, Circuit Judges. 29
________ 30
31
1 The Clerk of the Court is directed to amend the caption as set forth above.

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2 No. 14‐1513
Petitioner‐appellant David Martinez appeals from the decision 1
of the United States District Court for the Eastern District of New 2
York (Gershon, J.), denying his petition for a writ of habeas corpus. 3
Although Martinez seeks to challenge his 2007 New York state 4
conviction for charges including murder in the second degree, he 5
failed to file his petition within the one‐year limitations period 6
provided by the Antiterrorism and Effective Death Penalty Act of 7
1996, 28 U.S.C. § 2244(d)(1) (2015) (“AEDPA”). The district court 8
held that Martinez was not entitled to equitable tolling of the statute 9
of limitations because he had not acted with reasonable diligence 10
during the period for which he sought tolling. We conclude that the 11
court’s analysis of Martinez’s degree of diligence is premised upon a 12
misapplication of our decision in Doe v. Menefee, 391 F.3d 147 (2d 13
Cir. 2004). Accordingly, we VACATE the district court’s order 14
dismissing the petition and REMAND the case for further 15
proceedings consistent with this opinion. 16
________ 17
18
R ANDOLPH Z. V OLKELL, Law Office of Randolph 19
Z. Volkell, Merrick, NY, for Petitioner‐Appellant. 20
D ONALD J. B ERK, Assistant District Attorney, 21
Nassau County (Madeline Singas, District 22
Attorney, Nassau County, Tammy J. Smiley, 23
Assistant District Attorney, on the brief), Mineola, 24
NY, for Respondent‐Appellee. 25
________ 26

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3 No. 14‐1513
1
JOHN M. WALKER , JR ., Circuit Judge: 2
Petitioner‐appellant David Martinez appeals from the decision 3
of the United States District Court for the Eastern District of New 4
York (Gershon, J.), denying his petition for a writ of habeas corpus. 5
Although Martinez seeks to challenge his 2007 New York state 6
conviction for charges including murder in the second degree, he 7
failed to file his petition within the one‐year limitations period 8
provided by the Antiterrorism and Effective Death Penalty Act of 9
1996, 28 U.S.C. § 2244(d)(1) (2015) (“AEDPA”). The district court 10
held that Martinez was not entitled to equitable tolling of the statute 11
of limitations because he had not acted with reasonable diligence 12
during the period for which he sought tolling. We conclude that the 13
court’s analysis of Martinez’s degree of diligence was premised 14
upon a misapplication of our decision in Doe v. Menefee, 391 F.3d 147 15
(2d Cir. 2004). Accordingly, we VACATE the district court’s order 16
dismissing the petition and REMAND the case for further 17
proceedings consistent with this opinion. 18
BACKGROUND 19
On July 20, 2007, David Martinez entered a guilty plea in New 20
York state court to charges including attempted murder, robbery, 21
and assault. On February 11, 2008, he was sentenced to twelve 22
years’ imprisonment, five years’ post‐release supervision, and 23

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4 No. 14‐1513
restitution. He was then transferred to the custody of the New York 1
State Department of Corrections and Community Supervision. 2
Martinez immediately hired an attorney to seek post‐conviction 3
relief, but this attorney evidently showed a greater interest in 4
collecting fee payments than in providing Martinez with adequate 5
representation. The attorney missed the habeas petition deadline 6
and was barely responsive to Martinez’s case, as the following facts 7
demonstrate. 8
On March 3, 2008, three weeks after his sentencing, Martinez 9
and his mother hired attorney Anthony Denaro to handle his post‐ 10
conviction relief. Denaro, Martinez, and Martinez’s mother 11
executed an agreement for legal services. They agreed upon a 12
retainer payment of $5,000, and Martinez’s mother paid $2,000 that 13
day. Denaro accepted the money and then did virtually nothing for 14
almost a year. Between March 2008 and January 2009, the only 15
communication that Martinez received from Denaro was a 16
November 28, 2008 billing statement. 17
Denaro claims his firm sent Martinez two letters in early 2009, 18
more than ten months after Martinez hired him: a letter from Denaro 19
on January 28, 2009, enclosing all court documents in his possession, 20
and a letter from Denaro’s colleague, Jack Evans, on February 12, 21
2009, requesting a detailed statement of the facts and circumstances 22
in his case. Denaro also claims he received a letter on March 3, 2009 23

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5 No. 14‐1513
from Martinez, answering Evans’ request. None of these letters are 1
in the record, however, and Martinez claims Denaro sent him 2
“nothing” until March 4, 2009. 3
On March 4, 2009, more than a year after Denaro’s retention, 4
Evans sent Martinez a letter requesting information to be used in the 5
filing of a coram nobis petition. The letter referenced documents and 6
information previously provided by Martinez. At no point in this 7
letter did Evans mention that, because Martinez’s judgment became 8
final on March 12, 2008, the one‐year deadline for filing a petition for 9
habeas corpus would expire in just over a week. On March 6, 2009, 10
Denaro’s firm also sent Martinez a second billing statement. 11
From March to April of 2009, Martinez and Evans discussed 12
the coram nobis petition. On March 16, 2009, Martinez responded to 13
Evans. On April 2, 2009, Evans met with Martinez’s mother. The 14
following day, the firm sent Martinez a third billing statement. On 15
April 6, 2009, Evans sent Martinez a letter describing the possible 16
results of a coram nobis petition. On April 12, 2009, Denaro met with 17
Martinez’s mother and advised her that it would be very difficult to 18
formulate a meritorious petition. On April 30, 2009, Evans wrote 19
Martinez to tell him that he was leaving Denaro’s firm. That letter 20
referenced “the two most recent letters you sent to me regarding 21
your case.” 22

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6 No. 14‐1513
After Evans left, Martinez corresponded with Denaro. On 1
June 18, 2009, Martinez wrote to Denaro. On June 25, 2009, Denaro 2
wrote back and assured Martinez that he was in the process of 3
“determining whether appeal should be taken to the federal court.” 4
Denaro emphasized his “forty‐five years [of] legal experience” and 5
claimed a record of “favorable results.” On October 16, 2009, 6
Martinez wrote again to Denaro. On November 13, 2009, nearly five 7
months after his last communication and more than eight months 8
since the passing of the habeas deadline, Denaro responded to 9
“provide [Martinez] with the status of [his] motion to withdraw [his] 10
guilty plea and federal habeas corpus relief.” Denaro stated, “Please 11
be assured that we are working very hard to make this happen for 12
you.” On November 25, 2009, Martinez wrote again to Denaro. 13
Denaro’s next and last communication to Martinez, sent on January 14
15, 2010, was a fourth billing statement. 15
On August 3, 2010, Martinez filed pro se for a writ of error 16
coram nobis, challenging multiple aspects of his sentence. On 17
December 8, 2010, the New York Supreme Court modified the 18
restitution amount but denied all other claims. People v. Martinez, 19
Ind. No. 889N‐07, Motion No. C‐680 (Sup. Ct. Nassau County, Dec. 20
8, 2010) (Ayres, J.). On May 10, 2011, the Appellate Division, Second 21
Department (Lott, J.), denied Martinez leave to appeal the denial. 22

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7 No. 14‐1513
On August 1, 2011, his application for leave to appeal to the New 1
York Court of Appeals was denied. 2
On September 27, 2010, while waiting for a decision on his 3
coram nobis petition, Martinez complained about Denaro’s conduct 4
to the Second Department Grievance Committee, Tenth Judicial 5
District (“Grievance Committee”). On December 21, 2010 and 6
August 9, 2011, he submitted additional letters to the Grievance 7
Committee. He also reached out to The Lawyers’ Fund for Client 8
Protection but was informed on October 7, 2010 that the 9
organization would be unable to help him. On November 18, 2011, 10
the Grievance Committee determined that Denaro had breached the 11
Rules of Professional Conduct and admonished him for his failure to 12
timely pursue Martinez’s case. 13
On August 30, 2011, Martinez filed pro se for a writ of habeas 14
corpus in the United States District Court for the Eastern District of 15
New York. He sought a reduction of his sentence to ten years’ 16
imprisonment and either reduction or elimination of post‐release 17
supervision. His petition alleged, inter alia, ineffective assistance of 18
counsel. The district court (Feuerstein, J.) issued an Order to Show 19
Cause, directing Martinez to explain why his petition should not be 20
dismissed as time‐barred. 21
On April 15, 2014, after reviewing submissions from both 22
parties, the district court dismissed the petition as time‐barred. The 23

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8 No. 14‐1513
district court concluded that the one‐year habeas limitations period 1
began when Martinez’s judgment became final on March 12, 2008, 2
and that his petition was therefore time‐barred as of March 12, 2009. 3
The district court found Martinez ineligible for equitable tolling 4
because, although Denaro’s effective abandonment of Martinez 5
constituted an extraordinary circumstance preventing him from 6
timely filing his petition, Martinez had not acted with the required 7
reasonable diligence. On July 31, 2014, we granted a certificate of 8
appealability on the question of whether Martinez was entitled to 9
equitable tolling. 10
DISCUSSION 11
We review de novo a district court’s denial of equitable tolling 12
when premised on a finding that “governing legal standards would 13
not permit equitable tolling in the circumstances.” Belot v. Burge, 490 14
F.3d 201, 206 (2d Cir. 2007); see Dillon v. Conway, 642 F.3d 358, 363 15
(2d Cir. 2011) (per curiam). 16
The district court dismissed Martinez’s petition as untimely 17
under AEDPA. That act places a one‐year limitation on a prisoner’s 18
right to seek federal review of a state criminal conviction pursuant 19
to 28 U.S.C. § 2254. Smith v. McGinnis, 208 F.3d 13, 15 (2d Cir. 2000) 20
(per curiam). The statute of limitations “runs from the latest of a 21
number of triggering events, including the date on which the 22
judgment became final by the conclusion of direct review or the 23

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9 No. 14‐1513
expiration of the time for seeking such review.” Rivas v. Fischer, 687 1
F.3d 514, 533 (2d Cir. 2012) (internal quotation marks omitted). 2
AEDPA’s time constraint “promotes judicial efficiency and 3
conservation of judicial resources” and “safeguards the accuracy of 4
state court judgments by requiring resolution of constitutional 5
questions while the record is fresh.” Acosta v. Artuz, 221 F.3d 117, 6
123 (2d Cir. 2000). 7
A petitioner may secure equitable tolling of the limitations 8
period in certain “rare and exceptional circumstance[s].” Smith, 208 9
F.3d at 17 (internal quotation marks omitted); see Holland v. Florida, 10
560 U.S. 631, 649 (2010). The petitioner must establish that (a) 11
“extraordinary circumstances” prevented him from filing a timely 12
petition, and (b) he acted with “reasonable diligence” during the 13
period for which he now seeks tolling. Smith, 208 F.3d at 17. 14
Attorney error generally does not rise to the level of an 15
“extraordinary circumstance.” Baldayaque v. United States, 338 F.3d 16
145, 152 (2d Cir. 2003). However, attorney negligence may 17
constitute an extraordinary circumstance when it is “so egregious as 18
to amount to an effective abandonment of the attorney‐client 19
relationship.” Rivas, 687 F.3d at 538. 20
Here, we agree with the district court that an extraordinary 21
circumstance impeded Martinez’s timely filing because Denaro 22
“effectively abandoned” his client. The focus of this appeal, 23

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10 No. 14‐1513
however, is on the district court’s holding, based upon our decision 1
in Doe v. Menefee, 391 F.3d 147 (2d Cir. 2004), that Martinez was 2
ineligible for equitable tolling because he had not acted with 3
“reasonable diligence.” 4
As we explain below, in assessing whether Martinez’s level of 5
diligence rendered him ineligible for equitable tolling, the district 6
court premised its conclusions on a misapplication of Doe. The 7
district court specifically should have (a) considered the effect of 8
Denaro’s misleading conduct on Martinez’s ability to evaluate his 9
lawyer’s performance, (b) inquired further into Martinez’s financial 10
and logistical ability to secure alternative legal representation, (c) 11
inquired further into Martinez’s ability to comprehend legal 12
materials and file his own petition, and (d) tailored its “reasonable 13
diligence” analysis to the circumstances of a counseled litigant. 14
I. The Doe Factors 15
To qualify for equitable tolling, a petitioner must “act as 16
diligently as reasonably could have been expected under the 17
circumstances.” Baldayaque, 338 F.3d at 153 (emphasis in original). Doe 18
designated four factors relevant to a diligence inquiry “in the 19
attorney incompetence context”: (1) “the purpose for which the 20
petitioner retained the lawyer,” (2) “his ability to evaluate the 21
lawyer’s performance,” (3) “his financial and logistical ability to 22
consult other lawyers or obtain new representation,” and (4) “his 23

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11 No. 14‐1513
ability to comprehend legal materials and file the petition on his 1
own.” Doe, 391 F.3d at 175. 2
The first Doe factor, as the district court acknowledged, 3
supports a finding in favor of Martinez. Martinez hired Denaro to 4
handle all his post‐conviction relief, including a potential federal 5
habeas petition. The timely filing of that petition thus fit squarely 6
within Martinez’s reasonable expectations. 7
The second Doe factor, contrary to the district court 8
conclusion, also supports a finding in favor of Martinez. Martinez’s 9
ability to evaluate his lawyer’s performance was compromised by 10
Denaro’s active concealment of his firm’s poor performance. The 11
firm sent numerous billing statements and requests for information, 12
implying ongoing work. Letters from the firm also consistently 13
contained reassuring language. A May 4, 2009 letter, for example, 14
promised the firm would “do what we can to help you.” An April 15
30, 2009 letter said the firm was “mak[ing] every effort to assist 16
you.” A June 25, 2009 letter stated that Denaro had “thoroughly 17
investigated and researched the appeal issues” and could bring to 18
bear “forty‐five years [of] legal experience” and a “record [of] 19
favorable results” on Martinez’s behalf. A November 13, 2009 letter 20
said that the firm was “working very hard to make this happen for 21
you.” Although Denaro often left Martinez waiting for months for 22
updates on the case, the evident tendency of Denaro’s 23

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12 No. 14‐1513
correspondence would have been to lull Martinez into believing that 1
the firm was hard at work during periods of non‐communication. 2
The district court found that “[t]here is no reason to believe 3
that Mr. Martinez could not evaluate Mr. Denaro’s performance” 4
because Martinez was able to critically analyze the lawyer’s work in 5
complaints filed years later. However, the district court should have 6
considered whether Denaro’s written misrepresentations reasonably 7
could have impeded and delayed Martinez’s ability to evaluate his 8
lawyer’s performance at the time that it mattered and without the 9
benefit of hindsight. 10
With respect to the third Doe factor, the record contains no 11
clear indication that Martinez had the financial ability to easily 12
obtain another lawyer, even if he had realized that his counsel had 13
abandoned him. In addition, his incarceration would have created 14
logistical obstacles. The district court asserted without further 15
elaboration that Martinez “could have hired a new attorney,” but we 16
do not see how this capability has been established on the record. 17
We agree with Martinez’s contention that the matter warranted 18
further inquiry by the district court. 19
As for the fourth Doe factor, the record shows that Martinez 20
had no legal expertise or training. Although defendants without 21
legal training often file pro se petitions, there is no showing that 22
Martinez has any special ability to comprehend legal materials. To 23

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13 No. 14‐1513
be sure, Martinez ultimately was able to make several pro se filings, 1
but we have previously noted that “[t]he fact that [a petitioner] was 2
eventually able to draft a petition . . . does not mean that a duly 3
diligent person would have done so sooner.” Nickels v. Conway, 480 4
F. App’x 54, 58 (2d Cir. 2012) (summary order) (emphasis in 5
original). The district court asserted that Martinez “could have . . . 6
drafted the petition himself with the assistance of the prison’s 7
resources.” Yet, again, this capability—and more specifically that it 8
would have yielded a timely filing—was not clearly established on 9
the record, given Martinez’s reliance on retained counsel. So we 10
agree with Martinez’s contention that this matter also warranted 11
further inquiry. 12
II. Reasonable Diligence and the Counseled Litigant 13
When analyzing the applicable Doe factors, the district court 14
emphasized the fact that, between the date that Martinez hired 15
Denaro and the date that the limitations period expired, “the record 16
is devoid of evidence indicating that Mr. Martinez inquired about a 17
potential federal habeas corpus petition.” We cannot agree, 18
however, with the suggestion that Martinez would have had to 19
specifically ask his attorney about filing a habeas petition, or 20
undertaking any other specific initiative (as opposed to the general 21
pursuit of post‐conviction relief), in order to satisfy the “reasonable 22
diligence” standard. Although we have previously found 23

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14 No. 14‐1513
reasonable diligence when attorneys ignored their clients’ express 1
instructions to file habeas petitions, see Nickels, 480 F. App’x at 57‐59; 2
Dillon, 642 F.3d at 363, plainly no one is born with an understanding 3
of habeas corpus and its deadlines. While we expect a litigant 4
proceeding pro se to educate himself regarding the various methods 5
of appealing a conviction, we also recognize that a litigant 6
proceeding with counsel may reasonably trust his attorney to know 7
the deadlines without client‐provided research assistance.2 8
The district court placed particular weight upon our statement 9
in Doe that “it would be inequitable to require less diligence from 10
petitioners who are able to hire attorneys than from those who are 11
forced to proceed pro se.” Doe, 391 F.3d at 175. It is important to 12
clarify that statement. Although we do not require less diligence 13
from counseled litigants, it should be recognized that a counseled 14
litigant may display the same level of diligence in a different way. A 15
litigant with an attorney, for example, may reasonably delegate 16
certain tasks and decisions to the attorney. The litigant may then 17
reasonably rely upon the attorney to do the necessary work, if, as 18
2 Ordinarily, of course, a litigant who relies on his attorney bears the risk of
his agent’s negligence (with respect to missed deadlines and otherwise). See
Lawrence v. Florida, 549 U.S. 327, 336 (2007). However, when an attorney actually
impedes timely filing in circumstances (such as abandonment) that are
extraordinary, the petitioner’s reasonable reliance on counsel is relevant to his
reasonable diligence for the purposes of equitable tolling.

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15 No. 14‐1513
here, the attorney leads the client to believe that he is fully engaged 1
in the matter. 2
We stated in Doe that “the act of retaining an attorney does 3
not absolve the petitioner of his responsibility for overseeing the 4
attorney’s conduct or the preparation of the petition,” id., and we 5
still endorse that statement. Martinez, however, not only swiftly 6
secured representation but also made efforts to reach out to Denaro 7
and ensure that the attorney was diligently pursuing post‐conviction 8
relief. Martinez repeatedly wrote to Denaro to inquire about his 9
case and responded promptly each time his attorney asked for 10
information. Eight months after receiving his last communication 11
from Denaro, which itself was ten months after the habeas corpus 12
deadline had passed, Martinez filed a writ of error coram nobis pro se 13
in August 2010 and wrote letters to the Grievance Committee in 14
September 2010, December 2010, and August 2011. The district 15
court stated that, because the Grievance Committee letters were sent 16
after the habeas deadline had passed, “that evidence is not relevant 17
to the court’s equitable tolling analysis.” However, given that 18
Martinez seeks tolling for the entire period between when his 19
judgment became final and when he ultimately filed his habeas 20
petition pro se, his actions after the deadline passed remain relevant 21
to the tolling analysis. These letters, as well as Martinez’s efforts to 22

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16 No. 14‐1513
communicate with his attorney and his pro se filings, all indicate 1
diligence. 2
To be sure, significant gaps in the record also indicate that 3
Martinez may have been inactive for portions of the time for which 4
he now seeks tolling. However, Martinez must be given the 5
opportunity to explain his activity level during these time periods. 6
Whether the gaps truly indicate inactivity, and whether such 7
inactivity overcomes the acts of diligence that Martinez did exhibit, 8
will be matters for the district court to examine on remand. 9
Viewing the record in the context of Denaro’s extraordinary 10
misconduct, we conclude that there are significant indications that 11
Martinez acted with reasonable diligence and that these indications 12
justified a more detailed inquiry and findings by the district court. 13
In light of these findings and in light of our clarification of Doe, we 14
remand this matter to the district court for a hearing on the issue of 15
diligence. 16
17
CONCLUSION 18
For the reasons stated above, we VACATE the district court’s 19
order dismissing the petition and REMAND for further proceedings 20
consistent with this opinion. 21

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