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A day late and a dollar short

A lawyer called me up the other day.  He'd just been hired by a guy who'd filed a pro se motion to reopen his appeal.  That's under AppR 26(B), and allows the case to get reopened if the defendant can show that his appellate lawyer was ineffective for failing to raise certain issues.  That's a tough standard to meet - there's a boatload of cases holding that an appellate attorney doesn't have to present every conceivable issue, and in fact is expected to winnow the arguments, rejecting the weaker ones.

It also has a deadline:  90 days after the court's decision.  And, at least in the 8th, the court will routinely deny untimely motions, even those filed on the 91st day.  Yes, the rule allows a late filing if you can show good cause, but you'd be amazed at how difficult it is to show that.  One panel held that not even a riot in the prison which prevents the defendant's access to the law library makes the cut. 

My friend's client had filed the petition a day late.

From the looks of the argument in the Supreme Court yesterday in Williams v. State, that might not matter anymore.

Not that Williams is going to win.  In fact, you'd have to work overtime to come up with a worse case than Williams:  he filed his application seven years late.

Oddly enough, that subject didn't come up until defense counsel had twenty seconds left in his opening statement.  The rest of his argument was devoted to the merits of the claims, and Williams didn't fare well there, either.  The motion was based on the argument that appellate counsel was ineffective for not raising an argument that trial counsel had been ineffective.  There was something about an alibi, which frankly I just didn't understand, and a claim that trial counsel didn't effectively challenge the ID witnesses - all of whom knew the defendant.  The next time an argument like that wins will be the first.

If you look at it strategically, from the defendant's perspective, Williams was about the worst case to present to the Supreme Court on the issue of "good cause" for an untimely filing.  But in some respects it's probably the best.  One of my favorite pictures is one of a boat sinking, with the caption, "Sometimes your purpose in life is to serve as an example to others."  Well, sometimes the kamikaze appeal does the most good, because it lowers the bar for the next defendant.

And where it might significantly lower the bar is on one of the reasons Williams cited for the delay in filing:  reliance upon appellate counsel.  There are clients whose appellate lawyers never send them copies of the briefs, and don't even notify them of the court of appeals' decision.  O'Neill, O'Connor, and Lanzinger expressed some interest in that issue, but the prosecutor was able to use the length of the delay to fend it off; it's a hard sell that Williams took seven years to figure out that he hadn't heard anything about the case and so decided to find out.

As I said, there's no question that Williams is going to lose.  In fact, the State argued that the case should be dismissed as having been improvidently allowed.  That might be out of concern that the court is going to write an opinion stating that seven years is way too long to be timely, but leaving open the possibility that a much shorter delay might be good cause.  From what I saw in the argument, if somebody's bringing a claim along the lines of what I suggested above - the lawyer doesn't even notify the client of the decision - I can easily see the justices finding that a delay of a week or even a month or two is not fatal.

And I don't see the votes being there, under just about any circumstance, for the one-day-late-and-you're-out rule.  Which is as it should be.  If I file an answer a day late in a $3,000 contract case, no court is going to uphold the judge's granting a default judgment against me.  Yet the 8th and other districts routinely deny petitions filed by defendants who are serving years, and even decades, in prison, because they filed the motion on the 91st day instead of the 90th. The 90-day rule is not jurisdictional.  There's no reason it should be applied with a vengeance.


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