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Friday, July 15, 2011

Language Barrier May Qualify as an Extraordinary Circumstance Warranting Equitable Tolling of AEDPA’s One Year Statute of Limitations.

In Pabon v. Superintendent S.C.I. Mahanoy, No. 08-1536, Petitioner Angel Pabon challenged the denial of his habeas petition, as out of time. Following the denial of his motions for post conviction relief at the state level, Pabon filed a pro se habeas corpus petition under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. §2254. The habeas petition was based on a violation of the Confrontation Clause. Specifically, the state trial court admitted into evidence the confession of one of the codefendants, who did not testify at trial. The District Court dismissed Pabon’s petition because it was not timely under AEDPA’s one year statute of limitations, as set forth in 28 U.S.C. §2244. Conceding that his petition was out of time, Pabon argued that his petition should still be considered under the doctrine of equitable tolling, an argument the District Court rejected. The Third Circuit granted a certificate of appealablity (COA) to determine the question of timeliness and equitable tolling.

In reviewing the case to determine if equitable tolling was warranted, the federal appellate court looked at (1) whether the petitioner faced extraordinary circumstances that delayed the filing of the petition; and (2) whether the petitioner was diligent. Pabon can only read, write and speak Spanish, he is unable to communicate in English. He had been Mirandized and interrogated in Spanish and had the assistance of a translator at trial. However, during the habeas process he did not have access to a Spanish speaking attorney, Spanish-language materials, or translation services. Moreover, Pabon had made diligent but unsuccessful efforts to get the assistance of a Spanish speaking attorney. He also requested translation services, but the prison denied his requests. Joining the Second and Ninth Circuits, the Third Circuit ruled that a language barrier may be an extraordinary circumstance that can equitably toll AEDPA’s statute of limitations. Specific to this case, the Third Circuit had found that Pabon had made a sufficient showing that his language barrier was an extraordinary circumstance and that he had made diligent efforts to get legal and translation assistance. The demonstrated language barrier and Pabon’s due diligence were sufficient to warrant an evidentiary hearing on his equitable tolling claim to determine if his English language deficiency was the reason for the filing delay. Regarding the merits of Pabon’s claim, the Third Court found that he made a substantial showing that his constitutional right to confront witnesses was violated.

The Third Circuit noted that there were no “bright lines” for determining if equitable tolling was warranted, but based on this circumstances of the case, it was erroneous for the District Court to reject Pabon’s claim without a hearing. The case was remanded for an evidentiary hearing.