Circuit Court Reverses Trial Court That Changed Its Mind About Late Habeas Corpus Case

Federal case law summary: Habeas corpus, timely filing.

Socha v. Pollard. Habeas corpus

The prisoner, aware of the approaching deadline for filing habeas corpus petition, filed a motion with U.S. District Court requesting an extension of time for filing the petition. The trial court granted this motion. He then filed the petition after statutory time for filing had already expired, but within extension granted by court.

The Judge hearing the petition dismissed it as untimely, holding that the prior order was of no effect, because it was filed prior to petition. He reasoned that this fact rendered the earlier order a mere advisory opinion.

The Court of Appeals reversed and remanded, holding that the prior order was properly issued as part of a "case or controversy". The Court first noted that a court may act upon a case or controversy that has not been yet filed, and cited as an example Federal Rule of Civil Procedure 27, which permits depositions to perpetuate testimony.

Secondly, the Court noted that the motion for extension could be treated as the actual petition for habeas corpus, but filed in an incomplete form.

The Court also noted that equitable estoppel might apply, and should be considered by the district court.

No. 09-1733, 621 F.3d 667 (7th Cir. Sept. 3, 2010).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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