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Equitable Tolling of AEDPA Includes Non-English Speaking Petitioners

The Third Circuit Court of Appeals has held that a language inability, when combined with denial of legal or translation assistance, can be an extraordinary circumstance for equitable tolling purposes in habeas cases.

The issue was before the Third Circuit following a federal district court’s order dismissing as untimely a pro se habeas petition filed by Angel Pabon, a Pennsylvania state prisoner serving two life sentences. Pabon conceded his petition was not filed within the one-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

However, he argued that equitable tolling should apply based upon his inability to speak, read or write English. That, coupled with the prison’s lack of Spanish-language legal materials and repeated denials of translation assistance, constituted extraordinary circumstances that prevented him from timely filing his habeas petition despite diligent efforts to pursue his federal claims.

The first twelve pages of the Third Circuit’s twenty-one page decision outlined the facts underlying Pabon’s criminal case and his alleged constitutional violation. The Court of Appeals found that he had raised a debatable claim of a Sixth Amendment confrontation clause violation under Bruton v. United States, 391 U.S. 123 (1968), as the trial court had allowed a non-testifying codefendant’s confession to be admitted into evidence despite its potential prejudice to Pabon’s defense.

The appellate court began its analysis on the equitable tolling issue by noting that there “are no bright lines in determining whether equitable tolling is warranted in a given case. Rather, the particular circumstances of each petitioner must be taken into account.” The Court of Appeals said it had never addressed whether a language deficiency may constitute an extraordinary circumstance for the purposes of equitable tolling, though it noted the Second and Ninth Circuits had made such a determination and found their decisions to be persuasive.

The appellate court held that the “inability to read or understand English, combined with denial of access to translation or legal assistance, can constitute extraordinary circumstances that trigger equitable tolling.” Additionally, “the relevant inquiry is not whether the circumstance alleged to be extraordinary is unique to the petitioner, but how severe an obstacle it creates with respect to meeting AEDPA’s one-year deadline.”

As Pabon had consistently claimed to be a non-English speaker who required a translator in his interactions with police and the court system; lacked access to legal materials or notice of the AEDPA in Spanish; and was repeatedly denied Spanish legal materials and translation assistance, the matter was remanded to the district court for an evidentiary hearing. The Third Circuit found there was sufficient evidence that Pabon had exercised reasonable diligence in bringing his claim.

The state respondents petitioned the U.S. Supreme Court for a writ of certiorari, which was denied on May 21, 2012. Following remand, in October 2012 the district court referred the matter to a magistrate judge “for a hearing to determine whether [Pabon] experienced extraordinary circumstances sufficient to justify equitable tolling of his petition for a writ of habeas corpus.” See: Pabon v. Mahanoy, 654 F.3d 385 (3d Cir. 2011), cert. denied.

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Related legal case

Pabon v. Mahanoy