James Christopher North v. Lorie Davis, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Absent relief from this Court, James North will forfeit federal appellate review of his conviction and life sentence because his lawyers forgot to put a wordcount certificate in a state-court brief. North filed his state habeas application with more than a month remaining in his federal limitations period. The state court dismissed North’s application because his lawyers forgot to include a word-count certificate in a supporting brief. But it waited to do so until six weeks after North filed his application. By the time North learned of the defect, his federal limitations period had expired—without him having any idea he needed to do anything more to protect his federal rights. The Fifth Circuit refused to apply equitable tolling because the state courts said nothing “incorrect” to North and he lacked diligence by waiting eleven months to file the state-court application. But other circuit courts have applied equitable tolling under similar circumstances. And the Fifth Circuit’s holding on diligence conflicts with holdings by two other circuit courts—creating a wideopen circuit split. The questions presented are:

1. Does a state court’s act lulling a petitioner into believing he has tolled limitations— and resulting in running out his federal limitations period—warrant equitable tolling?

2. Does filing a state-court habeas application in the eleventh month of the AEDPA’s limitations period evidence a lack of diligence?