cause justify the application of the doctrine of
Under the judge-made doctrine of "equitable tolling," we may excuse
Mendez's failure to file his § 2254 petition within the limitations
period only if he shows that he "could not, despite the exercise of
reasonable diligence, have discovered all the information he needed in
order to be able to file his claim on time." Taliani, 189 F.3d at 597. In
other words, we may entertain a petition that is untimely filed when, due
to extraordinary circumstances beyond a petitioner's control, he cannot
reasonably be expected to file his suit on time, see Miller v. Runyon,
77 F.3d 189, 191 (7th Cir. 1996), and thus the "`principles of equity
would make [the] rigid application [of a limitation period] unfair.'"
Miller v. New Jersey State Dept. of Corrections, 145 F.3d 616, 618 (3d
Cir. 1998) (quoting Shendock v. Dir., Office of Workers' Compensation
Programs, 893 F.2d 1458, 1462-64 (3d Cir. 1990) (en banc)).
Mendez argues that his counsel is at fault here and that he himself did
exercise reasonable diligence. Normally, however, a lawyer's mistake is
not a valid basis for equitable tolling. Taliani, 189 F.3d at 598.
Petitioners do not have a constitutional right to counsel "when mounting
collateral attacks upon their convictions," Pennsylvania v. Finley,
481 U.S. 551, 555, 107 S.Ct. 1990 (1987), and alleged ineffective
assistance of habeas counsel is not a viable basis for tolling the §
2254 statute of limitations. Casas v. U.S., 88 F. Supp.2d 858, 859
(N.D.Ill. 1999). The Supreme Court has emphasized that "the petitioner
bears the risk in federal habeas for all attorney errors made in the
course of the representation," because "the attorney is the petitioner's
agent when acting, or failing to act, in furtherance of the litigation."
Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S. Ct. 2546 (1991).
Following this reasoning, we decline to toll the statute of limitations
in Mendez's case.
Mendez elected to wait for written notice from counsel indicating the
status of his petition for leave to appeal rather than discover the
status on his own and file his § 2254 petition pro se, which the
instant petition — finally filed prose almost 2 years after the
filing of the leave to appeal — demonstrates he was capable of
doing. On March 11, 1999, Mendez was informed by counsel that the
Illinois Supreme Court allowed the filing of his petition for leave to
appeal. However, Mendez made no attempt to discover the status of the
petition until January, 2000, when he sent a letter to counsel asking
whether the Illinois Supreme Court had granted or denied the petition.
Counsel sent a letter to Mendez on August 24, 2000, indicating that
Mendez's petition for leave to appeal had been denied in June, 1999.
After receiving this written notice, Mendez enlisted the help of another
inmate and prepared his petition for habeas corpus in just 46 days.
It is unclear to us why Mendez waited until January, 2000 to contact
counsel concerning the status of his petition for leave to appeal (we
also question why it took counsel seven months to answer Mendez's
letter). However, Mendez could have easily discovered the status of his
petition for leave to appeal by contacting the Illinois Supreme Court on
his own, without the help of counsel, in order to timely file a petition
under § 2254 as he has so aptly done here. There is no question
that, with the exercise of reasonable diligence, Mendez could have
discovered whether his petition for leave to appeal had been granted or
denied. This is the only piece of information he needed in order to
successfully file his petition for writ of habeas corpus in a timely
Because Mendez could have discovered all the information needed in
order to file his claim on time, regardless of whether he had the help of
counsel, we conclude that Mendez did not diligently attempt to bring his
claims. Therefore, we decline to toll the statute of limitations, and the
petition for writ of habeas corpus is dismissed. It is so ordered.
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