I. There is a split in the circuits about whether the one-year period of limitations is tolled for "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment of claim is pending...." Antiterrorism and Effective Death Penalty Act (AEDPA) 28 U.S.C Section 2244(d)(2). Where a defendant facing death has pending a United States Supreme Court certiorari petition to review the validity of the state's denial of his claims for state post-conviction relief, does the defendant have an application pending which tolls the 2244(d)(2) statute of limitations?
II. Alternatively, does the confusion around the statute of limitations -- as evidenced by the split in the circuits -- constitute an "extraordinary circumstance," entitling the diligent defendant to equitable tolling during the time when his claim is being considered by the United States Supreme Court on certiorari?
III. And in the second alternative, do the special circumstance where counsel advising the defendant as to the statute of limitations was registry counsel -- a species of state actor -- under the monitoring supervision of Florida Courts, with a statutory duty to file appropriate motions in a timely manner, [Florida Statutes Section 27.711(12)] constitute an "extraordinary circumstance" beyond the defendant's control such that the doctrine of equitable tolling should operate to save his petition?Question:
1) When a defendant facing death has a certiorari petition pending before the United States Supreme Court, does the time the petition is pending count toward the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act? 2) Does the division in the Circuit Courts over the statute of limitations constitute an extraordinary circumstance that would allow the Court to set aside the time limit? 3) Does the ineffectiveness of a defendant's counsel constitute an extraordinary circumstance that would allow the Court to set aside the time limit?