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Lombardo v. United States

United States Court of Appeals, Seventh Circuit

June 20, 2017

Joseph Lombardo, Petitioner-Appellant,
United States of America, Respondent-Appellee.

          Argued February 22, 2017

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 C 1038 - James B. Zagel, Judge.

          Before Bauer and Posner, Circuit Judges, and DeGuilio, District Judge [*]

          DeGuilio, District Judge.

         Joseph Lombardo is serving a life sentence on his convictions for racketeering, murder, and obstruction of justice. After we affirmed his convictions and sentence on direct appeal, he retained a new attorney to argue that his convictions were the product of his trial counsel's ineffectiveness. However, his new attorney misunderstood when the one-year limitations period for motions under 28 U.S.C. § 2255 began running, and thus filed Lombardo's motion too late.

         The question in this appeal is whether an attorney's miscalculation of a statute of limitations justifies equitably tolling the limitations period for a motion under § 2255. Following longstanding precedent, we hold that it does not, even if the result is to bar a claim of ineffective assistance of trial counsel. We therefore affirm the district court's dismissal of Lombardo's untimely motion.


         Joseph Lombardo was a long-time member of the Chicago Outfit, the lineal descendent of Al Capone's gang. He is also no stranger to federal prosecution. In the 1970s, Lombardo was federally indicted for Outfit thefts from the Teamster's Pension Fund, but those charges were dropped when Daniel Seifert, the key witness against him, was murdered prior to trial-a murder for which the jury in this case found Lombardo responsible. In the 1980s, Lombardo was charged and convicted in two separate cases, one of which involved a conspiracy to bribe a United States Senator, and the other of which involved maintaining hidden financial and management interests in Las Vegas casinos. His convictions in those cases were affirmed, and his appeals from various postconviction motions were unsuccessful. United States v. Williams, 737 F.2d 594 (7th Cir. 1984); United States v. Cerone, 830 F.2d 938 (8th Cir. 1987); United States v. Lombardo, 859 F.2d 1328 (8th Cir. 1988); Lombardo v. United States, 865 F.2d 155 (7th Cir. 1989); Lombardo v. United States, 956 F.2d 272 (table), No. 91-1085, 1992 WL 38620 (7th Cir. 1992).

         In the present case, Lombardo was charged in 2005 with a racketeering conspiracy for "having conducted the Outfit's affairs through a pattern of racketeering activity that extended from the 1960s to 2005 and included a number of murders, along with extortion, obstruction of justice, and other crimes." United States v. Schiro, 679 F.3d 521, 524 (7th Cir. 2012). The indictment also charged him with committing the Seifert murder as part of that conspiracy. After his indictment, Lombardo evaded arrest for a number of months, leading to an obstruction of justice charge in a superseding indictment.

         Lombardo was tried along with several of his co-defendants at a trial that lasted nearly three months. The jury convicted him on both counts and also found him responsible for the Seifert murder. The district court imposed a life sentence, and we affirmed Lombardo's conviction and sentence on appeal. Schiro, 679 F.3d 521. Lombardo then filed a petition for certiorari, which the Supreme Court denied on March 25, 2013. Lombardo v. United States, 133 S.Ct. 1633 (2013). Lombardo also petitioned for rehearing, but the Supreme Court denied that petition on June 3, 2013. Lombardo v. United States, 133 S.Ct. 2792 (2013).

         At some point, Lombardo retained a new attorney, David Jay Bernstein, to represent him in his attempt to vacate his conviction. On May 31, 2014, Bernstein filed a motion under § 2255 on Lombardo's behalf, arguing that Lombardo received ineffective assistance of counsel at trial. In general, the motion and accompanying brief argued that Lombardo's trial counsel failed to adequately investigate the case and develop his defense at trial, in violation of Lombardo's Sixth Amendment right to counsel.

         The government moved to dismiss the motion as untimely. It noted that Lombardo's conviction became final for the purposes of § 2255 when the Supreme Court denied his petition for certiorari on March 25, 2013-not when it denied his petition for rehearing on June 3, 2013. Lombardo's motion on May 31, 2014 was thus filed outside the one-year statute of limitations under § 2255(f)(1).

         In response, Lombardo conceded that his motion was untimely, but asked the district court to forgive the late filing on account of his attorney's "excusable neglect." His attorney represented that he miscalculated the deadline due to his mistaken belief that the statute of limitations began running only when the Supreme Court denied the petition for rehearing, not when it denied the petition for certiorari. He further represented that this error was "based on misinformation provided by a trusted paralegal." In a supplemental filing, he cited the Supreme Court's decision in Holland v. Florida, 560 U.S. 631 (2010) and asked that the statute of limitations be equitably tolled.

         In its ruling, the district court agreed with the parties that the motion was filed outside the one-year statute of limitations, and it found that counsel's miscalculation of the deadline did not justify equitable tolling. Accordingly, it dismissed the motion as untimely and did not reach the merits of Lombardo's claim. After Lombardo appealed, we issued a certificate of appealability and instructed the parties to "address whether Lombardo is entitled to equitable tolling because of ineffective assistance of counsel in his initial-review collateral proceeding. See Trevino v. Thaler, 133 S.Ct. 1911 (2013); Martinez v. Ryan, 132 S.Ct. 1309 (2012); Ramirez v. United States, 799 F.3d 845, 852-54 (7th Cir. 2015)." Because doing so would require Bernstein to argue his own ineffectiveness, we also appointed new counsel to represent Lombardo on appeal.


         Section 2255 contains a "1-year period of limitation" that runs from "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). As relevant here, the judgment of conviction becomes final when the Supreme Court denies a petition for certiorari, regardless of whether a defendant then seeks rehearing before the Supreme Court. Robinson v. United States, 416 F.3d 645, 650 (7th Cir. 2005). Lombardo filed his petition just under one year after the denial of rehearing, but over fourteen months after the denial of certiorari, making his petition untimely. To avoid dismissal, Lombardo thus argues that the statute of limitations should be equitably tolled.

         "[T]he threshold necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule." United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000). To qualify for equitable tolling, a petitioner must show: (1) that he has been pursuing his rights diligently; and (2) that some extraordinary circumstance stood in his way and prevented timely filing. Holland, 560 U.S. at 649; Boulb v. United States, 818 F.3d 334, 339-40 (7th Cir. 2016). The district court found that Lombardo failed the second element, as he did not demonstrate extraordinary circumstances, so it dismissed the motion without needing to consider Lombardo's diligence. "'We review the decision to deny equitable tolling for an abuse of discretion.'" Carpenter v. Douma, 840 F.3d 867, 870 (7th Cir. 2016) (quoting Obriecht v. Foster, 727 F.3d 744, 748 (7th Cir. 2013)).

          We first address Lombardo's argument that his attorney's error in calculating the statute of limitations meets the demanding standard for extraordinary circumstances required by existing precedent. We then address his argument that we should create an exception to that standard specific to claims of ineffective assistance of trial counsel, under which a petitioner could establish extraordinary circumstances by showing that their postconviction counsel was ineffective (or they had no counsel) and that their underlying claim has some merit.


         In the district court, Lombardo asked to equitably toll the statute of limitations because his attorney mistakenly believed that the statute of limitations began running only upon the Supreme Court's denial of rehearing, not upon the denial of certiorari. However, as we, the Supreme Court, and other courts have consistently held, mistakes or miscalculations of that sort by a party's attorney do not satisfy the extraordinary circumstances element for equitable tolling. E.g., Holland, 560 U.S. at 651-52; Lawrence v. Florida, 549 U.S. 327, 336-37 (2007); Griffith v. Rednour, 614 F.3d 328, 331 (7th Cir. 2010); Robinson, 416 F.3d at 650 n.l; Rouse v. Lee, 339 F.3d 238, 248-49 (4th Cir. 2003) (en banc) (collecting cases); Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir. 2003).

         "Extraordinary circumstances" are present only when an "external obstacle" beyond the party's control "stood in [its] way" and caused the delay. Menominee Indiana Tribe of Wis. v. United States, 136 S.Ct. 750, 756 (2016). In other words, the circumstances that caused a party's delay must be "both extraordinary and beyond its control." Id. But parties are bound by the acts of the attorney they choose to represent them, just as a principal is bound by the acts of its agent. Maples v. Thomas, 565 U.S. 266, 280-81 (2012) ("[W]hen a petitioner's postconviction counsel misses a filing deadline, the petitioner is bound by the oversight...."); Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 92 (1990) ("Under our system of representative litigation, 'each party is deemed bound by the acts of his lawyer-agent....'" (quoting Link v. Wabash R. Co., 370 U.S. 626, 634 (1962))). Thus, errors by an attorney acting on a party's behalf do not constitute external obstacles beyond the party's control. Johnson v. McBride, 381 F.3d 587, 589-90 (7th Cir. 2004); see Maples, 565 U.S. at 280-82; Coleman v. Thompson, 501 U.S. 722, 753 (1991) ("[T]he attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must 'bear the risk of attorney error.'" (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986))). This principle generally applies both to civil litigants and to habeas petitioners, neither of which have a constitutional right to counsel. Lawrence, 549 U.S. at 336-37; Johnson, 381 F.3d at 589-90; see also Modrowski, 322 F.3d at 968 ("[Attorney negligence is not extraordinary and clients, even if incarcerated, must vigilantly oversee, and ultimately bear responsibility for, their attorneys' actions or failures." (internal quotation omitted)).

         The mistake by Lombardo's counsel in identifying the correct filing deadline was neither extraordinary nor beyond Lombardo's control. Indeed, we have previously held that this exact same mistake did not warrant equitable tolling. In Robinson, the petitioner's counsel filed a § 2255 motion less than one year after the Supreme Court denied hearing- which counsel mistakenly believed to be the operative date- but more than one year after the Supreme Court denied certiorari. 416 F.3d at 646-47. The petitioner argued that the limitations period should be equitably tolled in light of this mistake. We disagreed: "Equitable tolling is granted sparingly, where extraordinary circumstances beyond the litigant's control prevented timely filing; a mistaken understanding about the deadline for filing is not grounds for equitable tolling." Id. at650n.l.

         That holding is consistent with the Supreme Court's more recent decisions on equitable tolling. In Lawrence, the Supreme Court confronted another mistake similar to the one here, in the context of a § 2254 petition by a state prisoner. 549 U.S. 327. Like under § 2255, petitions under § 2254 face a one-year statute of limitations from the date the conviction becomes final. 28 U.S.C. § 2244(d)(1). However, that period is tolled by statute for § 2254 petitions while a petition for postconviction review is pending in the state courts. § 2244(d)(2). In Lawrence, the petitioner's attorney believed a state-court petition remained "pending" for statutory tolling purposes until the United States Supreme Court denied certiorari. The Supreme Court held, though, that a state-court petition is no longer pending once the state's highest court disposes of the petition, even if the petitioner then seeks certiorari from the Supreme Court. 549 U.S. at 332. By that standard, Lawrence's federal habeas petition was untimely.

         Lawrence argued in the alternative that he was entitled to equitable tolling, but the Supreme Court disagreed, holding that he had "fallen far short of showing 'extraordinary circumstances' necessary to support equitable tolling." Id. at 337. In particular, the Court rejected the argument that an attorney's mistake of this sort would justify equitable tolling:

Lawrence argues that his counsel's mistake in miscalculating the limitations period entitles him to equitable tolling. If credited, this argument would essentially equitably toll limitations periods for every person whose attorney missed a deadline. Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly ...

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