539 F.3d 1334 (11th Cir. 2008), 07-13366, Holland v. Florida

Docket Nº:07-13366.
Citation:539 F.3d 1334
Party Name:Albert HOLLAND, Jr., Petitioner-Appellant, v. State of FLORIDA, Respondent-Appellee.
Case Date:August 18, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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539 F.3d 1334 (11th Cir. 2008)

Albert HOLLAND, Jr., Petitioner-Appellant,

v.

State of FLORIDA, Respondent-Appellee.

No. 07-13366.

United States Court of Appeals, Eleventh Circuit.

August 18, 2008

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Todd Gerald Scher (Court-Appointed), Sp. Asst. CCRC-South, Miami Beach, FL, for Holland.

Lisa-Marie Lerner, Leslie T. Campbell, West Palm Beach, FL, for Respondent-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before EDMONDSON, Chief Judge, and MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

Albert Holland (Petitioner), a prisoner on Florida's death row, filed a petition for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254. The district court dismissed the petition as untimely because it was filed beyond the one-year limitations period provided by 28 U.S.C. § 2244(d)(1). On appeal, Petitioner argues that he was entitled to equitable tolling of the limitations period for filing his federal habeas petition because of egregious conduct by his counsel during his post-conviction proceedings. Seeing no reversible error, we affirm the district court's dismissal of Petitioner's petition.

I. Background

In 1996, Petitioner was convicted of first-degree murder, attempted first-degree murder, attempted sexual battery, and armed robbery.1 The state trial court

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sentenced Petitioner to death on the first-degree murder conviction. In 2000, the Florida Supreme Court affirmed Petitioner's convictions and sentences, see Holland v. State, 773 So.2d 1065 (Fla.2000), and the United States Supreme Court denied certiorari on 1 October 2001. See Holland v. Florida, 534 U.S. 834, 122 S.Ct. 83, 151 L.Ed.2d 46 (2001).2

On 19 September 2002, Petitioner filed a motion for post-conviction relief in the state trial court. The state court denied relief, and Petitioner appealed to the Florida Supreme Court. Petitioner also petitioned the Florida Supreme Court for a writ of habeas corpus.3 The state supreme court held oral argument on 10 February 2005.

While his post-conviction proceedings were pending in the Florida Supreme Court, Petitioner sent two letters to Collins-one on 3 March 2005, the other on 15 June 2005-in which he inquired about the status of his appeal and expressed concern about the timely filing of his federal habeas petition. Collins did not respond to Petitioner's letters.

In October 2005, Petitioner also contacted the Florida Supreme Court about the use of its website “so that he could secure the assistance of outside supporters to keep him updated about the appeal." 4 In response, the clerk of the Florida Supreme Court mailed Petitioner printouts of the website with instructions about the menu options to be used.

On 10 November 2005, the Florida Supreme Court affirmed the denial of Petitioner's motion for post-conviction relief and denied his habeas petition; the mandate issued on 1 December 2005.5 See Holland v. State, 916 So.2d 750 (Fla.2005). Unaware of the state supreme court's decision, Petitioner-on 9 January 2006-wrote to Collins a third time regarding the status of his appeal and the status of his federal habeas petition. Collins had not responded to Petitioner's letter by 19 January, at which time Collins spoke to Petitioner.

On 18 January 2006, during a visit to the prison's writ room, Petitioner learned that the Florida Supreme Court denied his appeal. Petitioner telephoned Collins the next morning.6 Later that day, Petitioner, acting pro se, filed a habeas petition in federal district court.

About two months later, Petitioner moved the district court to discharge Collins and to appoint new counsel. In June 2006, the district court allowed Collins to withdraw and appointed other counsel to represent Petitioner. Later, in response to a federal order to show cause, Petitioner, through current counsel (that is, not Collins), filed a pleading asserting that Petitioner was entitled to equitable tolling of the limitations period for filing his federal habeas petition. The district court

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concluded that equitable tolling was not warranted...

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