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2nd Circuit Appeals Court Approves Habeas Petition Delayed by Attorney Error On Tuesday, a three-judge panel of the 2nd U.S. Circuit Court of Appeals reversed a lower court judgment that disqualified a habeas petition holding the plaintiff guilty of laches, and ruled that the petition was valid as the delay was caused due to the fault of lawyers. Tobias Nickels, a New York man convicted of killing a three-year old boy by a non-jury trial was denied opportunities to have his case considered because his lawyers did not do their duty.
05/09/12
becomes final. The petition was ultimately filed in 2010, two years past the line of limitation.
Tobias claims that the child’s death was due to an accidental fall from the kitchen counter. He appointed
At the lower court, Rochester judge David Larimer
The Office of Pro Se Litigators to deal with the case.
found Nickels guilty of not being sufficiently diligent
They repeatedly promised that they were taking
from behind the bars to follow up on the Pro Se
action but did nothing. Ultimately the firm went out of
Litigator’s work and that he should have filed a ‘bare
business, and Tobias was left in prison.
bones’ petition by himself, though he had no access to relevant documents which were in possession of his
The judges wrote, “Nickels was constantly apprised
attorneys. In his enlightened September 2010 order,
that his petition was almost done, that timeliness was
the honored and insightful judge David Larimer wrote
not crucial and that the papers he had turned over to
“Petitioner had been given ample reason to suspect
his lawyers, and could not get back, were necessary to
that something was amiss with Pro Se Litigator’s
filing – only to find himself with no petition, no lawyer,
representation of him.”
and no recourse.” The 2nd Circuit Court of Appeals disagreed. Nickels was convicted in June 2005 in the New York State Supreme Court in Steuben County of second
While remanding the case the appeals court observed
degree murder and sentence to a term of 24 years to
that judge Larimer should have taken into account all
life in prison.
the factors in Nickel’s situation, in particular the effect that the promises of Pro Se group would have had “on
In August 2007, after the order of a state appeals court
a person in Nickels’ position.”
in February 2007, the sentence became final. After about four months, Nickels asked the Office of Pro Se
The case is Tobias Nickels v. James Conway, U.S. Court
Litigators to help filing a petition of habeas corpus.
of Appeals for the 2nd Circuit, No. 10-4228.
Federal rules of limitation state that such a petition must be filed within a year from the time the judgment
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