February 22, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 15 C 1038 - James
B. Zagel, Judge.
Bauer and Posner, Circuit Judges, and DeGuilio, District
DeGuilio, District Judge.
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.
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
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).
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.
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).
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.
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).
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.
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.
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.
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)).
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.
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).
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)).
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."
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.
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 ...