P:\CLEPUB\Books\Disciplinary Board Reporter ... - Oregon State Bar

Cite as In re Lyons, 19 DB Rptr 271 (2005)
Effective Death Penalty Act of 1996 (“AEDPA”), state prisoners must file a writ of
habeas corpus within one year from the date a judgment on the direct appeal
becomes final. 28 USC §2244(d)(1)(A). However, the time during which a petition
for state postconviction relief is pending shall not be counted toward the AEDPA
statute of limitations. 28 USC §2244(d)(2). In Singh’s case, the AEDPA statute of
limitations began on April 13, 1999, and ended on April 13, 2000.
8.
The Accused filed Singh’s petition for postconviction relief on September 7,
2000. Although the Accused filed Singh’s petition within the two-year statute of
limitations imposed by ORS 138.510, he filed it after the AEDPA statute of
limitations had run. The AEDPA statute of limitations was therefore not tolled during
the pendency of the state postconviction relief petition.
9.
Singh’s petition for postconviction relief was denied at trial in August 2001.
Singh retained the Accused to appeal that denial. The Oregon Court of Appeals
affirmed the dismissal without opinion and the Oregon Supreme Court denied review.
The appellate judgment denying Singh’s postconviction relief petition was issued on
January 29, 2003.
10.
Singh thereafter filed a writ of habeas corpus in federal court on February 24,
2003. In February 2005, the federal magistrate issued his findings and
recommendation that the writ be dismissed as untimely, citing the AEDPA. The
federal court issued an order on April 13, 2005, adopting this recommendation and
dismissing Singh’s writ as untimely.
11.
During the habeas corpus litigation, Singh was represented by the federal
public defender’s office. The federal public defender requested that the Accused
provide his file from Singh’s postconviction relief case. The Accused did not do so,
because he had lost the file and all records of his representation of Singh during a
relocation of his office. The Accused provided an affidavit to the federal public
defender, which was eventually filed with the federal court, setting out the
circumstances of his loss of the file.
12.
When he undertook to represent Singh, the Accused was aware of the two-year
statute of limitations under ORS 138.510. However, he was not aware that the oneyear
AEDPA statute of limitations was also running during the two-year period. The
Accused failed to perform the legal research necessary to determine that Singh’s
rights to pursue relief in the federal court would be extinguished if the Accused did
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