Paul Modrowski v. Stephen D. Mote

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-1804
P AUL M ODROWSKI ,
Petitioner-Appellant,
v.
S TEPHEN D. M OTE ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 01 C 4183—Blanche M. Manning, Judge.
____________
A RGUED J ANUARY 29, 2003—D ECIDED M ARCH 10, 2003
____________
Before C OFFEY , E ASTERBROOK , and K ANNE , Circuit
Judges.
K ANNE , Circuit Judge. Paul Modrowski, an Illinois pris-
oner serving a life sentence for murder, hired an attorney
to file a petition under 28 U.S.C. § 2254 on his behalf, but
the attorney filed the petition one day late. The attorney
claimed that a series of physical and mental ailments
prevented him from working on the petition and filing it on
time. The district court rejected counsel’s equitable tolling
argument and dismissed the untimely petition. On appeal
Modrowski argues that the filing deadline for § 2254
petitions can be equitably tolled for an attorney’s incapac-
ity. We affirm the dismissal of Modrowski’s § 2254 petition
as untimely because an attorney’s failure to act as a result

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2 No. 02-1804
1 Modrowski’s conviction became final on direct review on October
6, 1998, when the Illinois Supreme Court denied leave to appeal.
Modrowski filed his post-conviction action on May 29, 1998, before
his conviction became final. Therefore, the statute of limitations
was tolled under § 2244(d)(2) until May 31, 2000, when the Illinois
Supreme Court again denied leave to appeal.
of incapacity is analogous to an attorney’s failure to act as
a result of negligence, for which we do not permit equitable
tolling.
Modrowski exhausted his state court remedies on May 31,
2000. 1 Therefore, his § 2254 petition was due on May 31,
2001. See United States v. Marcello, 212 F.3d 1005, 1010
(7th Cir. 2000). The district court received Modrowski’s
petition one day late on June 1. The petition was unsigned,
missing the filing fee and exhibits, and had blank para-
graphs where many of Modrowski’s constitutional claims
should have been. Modrowski’s attorney amended the
petition on July 5, 2001, but the district court dismissed the
petition as untimely, concluding that it lacked discretion to
equitably toll the filing deadline for attorney negligence.
Modrowski, through new counsel, filed a timely Fed. R.
Civ. P. 59 motion, arguing that his original attorney’s per-
sonal and psychological difficulties prevented that attorney
from filing the petition on time and justified equitable
tolling. In an affidavit attached to the motion, original
counsel alleged that depression, physical illnesses, the
death of his father, and the disintegration of his law prac-
tice impeded his work in the year leading up to the peti-
tion’s due date and prevented him from bringing the
petition to the courthouse on time.
For purposes of its decision, the district court assumed
that Modrowski had exercised reasonable diligence in
attempting to have his petition filed on time and that his
attorney had been mentally incapacitated, but denied the

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No. 02-1804 3
2 Because we ultimately conclude that attorney incapacity is not
an appropriate ground for equitable tolling, we once again reserve
the question whether the filing deadline for § 2254 petitions is
ever subject to equitable tolling. We have held that the limitation
period for motions under § 2255 is subject to equitable tolling,
Marcello, 212 F.3d at 1010, but we have never decided the ques-
tion conclusively for § 2254 petitions, see Lloyd v. VanNatta, 296
F.3d 630, 633 (7th Cir. 2002).
3 We note further, however, that evidence of Modrowski’s original
attorney’s alleged incapacity is scant because the district court did
not hold a evidentiary hearing on the matter.
motion, likening attorney incapacity to attorney negligence.
Modrowski timely appealed, and the district court granted
a certificate of appealability on the equitable tolling ques-
tion and on all but one of Modrowski’s substantive claims.
The Rule 59 motion brings the underlying dismissal of
Modrowski’s petition before us on appeal, see Kunik v.
Racine Cy., Wis., 106 F.3d 168, 173 (7th Cir. 1997), and we
review the dismissal de novo, Wilson v. Battles, 302 F.3d
745, 747 (7th Cir. 2002). The central issue is whether the
filing deadline for § 2254 petitions, 28 U.S.C. § 2244(d)(1),
can be equitably tolled on account of attorney incapacity. 2
The question is one of first impression in this circuit. As
noted, the district court assumed, without deciding, that
Modrowski’s original counsel was actually incapacitated,
and we will assume the same for purposes of this opinion. 3
Equitable tolling excuses an untimely filing when “[e]x-
traordinary circumstances far beyond the litigant’s control
. . . prevented timely filing.” Marcello, 212 F.3d at 1010. We
rarely deem equitable tolling appropriate—in fact, we have
yet to identify a circumstance that justifies equitable tolling
in the collateral relief context. See, e.g., Lloyd, 296 F.3d at
633 (prisoner’s lack of access to trial transcript does not
warrant equitable tolling); Montenegro v. United States, 248
F.3d 585, 594 (7th Cir. 2001) (equitable tolling not justified

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4 No. 02-1804
by lack of response from attorney, language barrier, lack of
legal knowledge, and transfer between prisons), overruled
on other grounds by Ashley v. United States, 266 F.3d 671
(7th Cir. 2001); Marcello, 212 F.3d at 1010 (equitable tolling
not warranted by unclear law and death of attorney’s
father); see also Brooks v. Walls, 279 F.3d 518, 525 (7th Cir.
2002) (noting that little room remains for tolling unless the
petitioner falls within one of the statutorily provided cir-
cumstances for tolling in 28 U.S.C. § 2244(d)). But cf. John-
son v. McCaughtry, 265 F.3d 559, 567-68 (7th Cir. 2001)
(Evans, J., dissenting) (equitable tolling justified by petition
filed mistakenly in wrong forum by prisoner’s attorney).
We have never considered whether attorney incapacity is
grounds for equitable tolling. But we, and numerous other
courts, have held that attorney negligence is not grounds for
equitable tolling. See Beery v. Ault, 312 F.3d 948, 951 (8th
Cir. 2002); Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir.
2002); Ford v. Hubbard, 305 F.3d 875, 890 (9th Cir. 2002);
Wilson, 302 F.3d at 748; Smaldone v. Senkowski, 273 F.3d
133, 138 (2d Cir. 2001); Steed v. Head, 219 F.3d 1298, 1300
(11th Cir. 2000); Harris v. Hutchinson, 209 F.3d 325, 330-31
(4th Cir. 2000); Taliani v. Chrans, 189 F.3d 597, 598 (7th
Cir. 1999). The rationale is that attorney negligence is not
extraordinary and clients, even if incarcerated, must “vig-
ilantly oversee,” and ultimately bear responsibility for, their
attorneys’ actions or failures. Johnson, 265 F.3d at 566. An
exception may exist for capital cases, see, e.g., Fahy v.
Horn, 240 F.3d 239, 244-45 (3d Cir. 2001), but Modrowski
was sentenced to life imprisonment.
Thus, the key inquiry is whether we should permit
equitable tolling for attorney incapacity because it is
sufficiently distinguishable from attorney negligence.
Modrowski argues that attorney incapacity is distinguish-
able from negligence because there is no way for a client to
anticipate or protect against an attorney’s sudden onset of

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No. 02-1804 5
illness, whereas a client can check the attorney’s references
and disciplinary records for signs of negligence. Modrowski
also takes issue with the principle that the prisoner is
ultimately responsible for timely filing his petition and
argues that it is inefficient to require a prisoner to prepare
and file a duplicative petition just in case his attorney does
not file on time. The state responds that indeed prisoners
are responsible for getting their petitions filed on time
and that, in this sense, attorney incapacity and negligence
are no different—although prisoners cannot control either
shortcoming, neither situation actually prevents prison-
ers from filing on time and it is still their responsibility
to do so.
We conclude that attorney incapacity is equivalent to
attorney negligence for equitable tolling purposes. We will
not revisit our long-standing determination that petitioners
bear ultimate responsibility for their filings, even if that
means preparing duplicative petitions: petitioners, “wheth-
er in prison or not, must vigilantly oversee the actions of
their attorneys and, if necessary, take matters into their
own hands.” Johnson, 265 F.3d at 566. Furthermore, no
principled distinction exists between incapacity and neg-
ligence for equitable tolling purposes. Even if a prisoner
diligently checks an attorney’s references and disciplinary
records, he still cannot prevent the attorney from bungling
his case. Nonetheless, we hold the prisoner responsible for
his attorney’s bungling. Likewise, a prisoner cannot prevent
his attorney from becoming incapacitated, and there is no
reason, however unfortunate the result, not to hold the
prisoner responsible in this type of situation, as well.
Modrowski cites several cases from other circuits suggest-
ing that filing deadlines can be equitably tolled for circum-
stances outside the bounds of ordinary attorney negligence.
These cases, however, are unpersuasive because none hold
that attorney incapacity alone is grounds for equitable
tolling in the collateral relief context. Furthermore, we have

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6 No. 02-1804
rejected the reasoning behind several of the cases. United
States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002) (§ 2255
case), and Seitzinger v. Reading Hosp. & Med. Ctr., 165
F.3d 236, 241 (3d Cir. 1999) (employment discrimination
case), hold that an attorney’s affirmative misrepresenta-
tions to a client can be grounds for equitable tolling because
such wilful behavior “goes beyond garden variety neglect,”
165 F.3d at 241. But we have held that attorney miscon-
duct, whether labeled negligent, grossly negligent, or will-
ful, is attributable to the client. See United States v. 7108
W. Grand Ave., 15 F.3d 632, 634 (7th Cir. 1994). Doherty v.
Teamsters Pension Trust Fund, 16 F.3d 1386, 1394 (3d Cir.
1994) (pension arbitration case), holds that a filing deadline
could be equitably tolled where the attorney filed in the
wrong forum due to his judgment being impaired by illness.
But Johnson intimates that filing in the wrong forum does
not justify equitable tolling. 265 F.3d at 565. Cantrell v.
Knoxville Cmty. Dev. Corp., 60 F.3d 1177, 1179-80 (6th Cir.
1995) (employment discrimination case), is most helpful to
Modrowski because it holds that an attorney’s mental in-
capacity might be an appropriate basis for equitable tolling
and remands the case for an evidentiary hearing on wheth-
er the attorney was incapacitated at the relevant time. But
even if Cantrell’s holding can be extended to the collateral
relief arena, we decline to follow the Sixth Circuit’s lead
because Cantrell provides no principled distinction between
attorney incapacity and negligence for equitable tolling
purposes.
As a final cautionary note, we mention that Modrowski
also waived the substantive claims in his § 2254 petition
because he did not brief them on appeal. See Anderson
v. Litscher, 281 F.3d 672, 675 (7th Cir. 2002) (appellant
waived his constitutional claims by omitting them from his
brief, thereby forfeiting any claim to collateral relief). In-
stead, Modrowski briefed only the procedural question of
equitable tolling. Had Modrowski persuaded us on the

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No. 02-1804 7
procedural issue, we still would have affirmed the district
court’s dismissal because before remanding a case based on
a procedural error, we must decide whether the petitioner
has a decent chance of success on his constitutional claims.
This we cannot do without some argument on those claims.
See Beyer v. Litscher, 306 F.3d 504, 507 (7th Cir. 2002).
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-10-03

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