“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

In the January 2020 ruling in Nalls v. Vannoy, the Fifth Circuit majority allowed a man to file a petition for post-conviction review after the deadline because his attorney failed to notify him of the court’s decision against him. Trump judge James Ho dissented, claiming that the federal district judge who denied his petition had not abused his discretion. A conservative George W. Bush appointee sided with the majority in the ruling.

In June 2009, after an attorney representing Marice Nalls appealed his conviction to Louisiana’s state appeals court, he told Nalls that he could no longer represent him. Shortly after Nalls filed a brief that August, he wrote his former attorney to inquire about the status of the case, since the attorney was still counsel of record when he filed the appeal. Nalls wrote four such letters over the next 18 months and asked his mother to help him contact the attorney. She stated that as late as 2011, the attorney told her he “had not received a copy” of any decision. “Unbeknownst to Nalls,” however, the court had already ruled against him in October 2009, just 10 days after his first letter to his attorney. He did not learn about the court’s ruling until April 2011.

Although the deadline for further review had expired, Nalls “nevertheless moved quickly to continue challenging his conviction.” But his appeal to the state Supreme Court was rejected as untimely, as was his petition for post-conviction relief in federal district court. The district court refused to suspend or “equitably” toll the time limits for filing.

In a 2-1 decision, a panel of the Fifth Circuit that included conservative Bush appointee Edith Brown Clement reversed the lower court’s decision and ruled that the district judge had abused his discretion in refusing to grant equitable tolling. That remedy, the court explained, is appropriate when petitioners like Nalls have been “pursuing his rights diligently” and “some extraordinary circumstances stood in his way,” which was precisely what happened here.

The majority pointed to a recent Fifth Circuit ruling in which it held that a district court had abused its discretion in failing to grant equitable tolling to an individual who similarly did not receive notice of an unfavorable decision. In this case, the majority noted, the delay in Nalls’ case was “even longer,” and Nalls was even more diligent, since he “wrote multiple letters” and took other action to try to receive updates, than the person in the other case , who “sat idly by for 15 months.”

Based on that precedent, the majority reversed the court for abusing its discretion when it refused to grant Nalls equitable tolling and allow him to seek post-conviction relief. But Ho dissented, in a one-sentence statement in a footnote to the majority opinion, saying that he did not think the trial court had abused its discretion.