Extraordinary Circumstances and Extraordinary Writs: Equitable Tolling During the COVID-19 Pandemic and Beyond

When all other opportunities for relief have been exhausted, people convicted of crimes have one year to file a petition for habeas corpus in federal court before their chance to do so expires. But for the past 365 days, the COVID-19 crisis has fundamentally disrupted both the functioning of the criminal legal system and people’s daily lives inside and outside of prisons. COVID-19 has created delays, disruptions, and circumstances during which some incarcerated people have missed what may be their only opportunity to seek habeas review. Fortunately, those people may yet be heard in federal court, if their limitations period is equitably tolled. This paper addresses how courts have made equitable tolling available for habeas petitioners during the COVID-19 pandemic. It explores how courts evaluate whether “extraordinary circumstances” are present such that a petitioner is entitled to equitable tolling. It examines how district courts analyze the extraordinary circumstances requirement, arguing that district courts must adopt an approach that allows for the holistic consideration of all the circumstances accompanying a petitioner’s late filing when deciding whether to dismiss that petition as barred by AEDPA’s statute of limitations. It then summarizes the two competing approaches employed most frequently among district courts — one flexible, one strict — and argues that district courts, guided by extensive Supreme Court and circuit court precedent, must embrace flexibility. It concludes by explaining how district courts can adopt a flexible approach.