Brown v. Secretary, Department of Corrections, 101118 FED11, 17-10027

Docket Nº:17-10027
Judge Panel:Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.
Case Date:October 11, 2018
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

PAUL ANTHONY BROWN, Petitioner - Appellant,



No. 17-10027

United States Court of Appeals, Eleventh Circuit

October 11, 2018


Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:12-cv-00111-ACC-GJK

Before MARTIN, JORDAN, and ROSENBAUM, Circuit Judges.


Paul Brown appeals the dismissal of his first federal habeas corpus petition as untimely under the one-year statute of limitations set by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). See 28 U.S.C. § 2244(d)(1). When an inmate's original habeas petition is dismissed, it is "particularly serious," because that dismissal "denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty." Lonchar v. Thomas, 517 U.S. 314, 324, 116 S.Ct. 1293, 1299 (1996); see also Downs v. McNeil, 520 F.3d 1311, 1323 (11th Cir. 2008).

There is no doubt Mr. Brown filed his petition well after the one-year deadline set by 28 U.S.C. § 2244(d)(1). In the District Court, Mr. Brown argued his petition was nonetheless timely because his initial deadline was subject to statutory and equitable tolling. Without holding an evidentiary hearing, the District Court denied his arguments and denied him a certificate of appealability ("COA") as well. This Court then granted a COA on two claims: (1) whether the District Court erred in holding Mr. Brown was not entitled to equitable tolling, and (2) whether the District Court erred in holding Mr. Brown was not entitled to statutory tolling.1

On even the limited record before us, Mr. Brown has pled enough facts that, if true, his petition would be timely based on equitable tolling or a combination of statutory and equitable tolling. See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060-61 (11th Cir. 2011); see also Downs, 520 F.3d at 1325. On this long and complex case history, the District Court abused its discretion when it failed to hold an evidentiary hearing on Mr. Brown's claims. See Lugo v. Sec'y, Fla. Dep't of Corr., 750 F.3d 1198, 1206-07 (11th Cir. 2014). For this reason, we reverse and remand with instructions. Our ruling renders Mr. Brown's Motion to Relinquish Jurisdiction moot, and we deny it as such.



Florida charged Mr. Brown with capital murder for his role in the November 1992 stabbing death of Roger Hensley. Brown v. State ("Brown I"), 721 So.2d 274, 275-77 (Fla. 1998) (per curiam). In 1994, while Mr. Brown was awaiting trial in federal custody, the Federal Bureau of Prisons determined through an assessment that Mr. Brown had a full-scale intelligence quotient ("IQ") of 78 and a verbal IQ of 73, the latter of which placed him in the fourth percentile. Mr. Brown's trial took place in 1996. Brown v. State ("Brown III"), 41 So.3d 116, 117 (Fla. 2010).

As it prepared for Mr. Brown's trial, Florida struck a deal with his co-defendant, who, at the time, was known as Scott Jason McGuire. Brown I, 721 So.2d at 275, 282.2 In exchange for his promise to testify against Mr. Brown, Mr. McGuire was allowed to plead guilty to second-degree murder. Id. at 282. On September 28, 1993, Mr. McGuire was sentenced to a forty-year term of incarceration. Id.

Mr. McGuire was the State's only eyewitness to the murder of Mr. Hensley. At trial, Mr. McGuire painted Mr. Brown as the more culpable actor in Hensley's killing. See id. at 275-76. According to Mr. McGuire, Mr. Brown hatched the plan to kill Hensley and take his truck; got the murder weapon-a steak knife- from Hensley's kitchen; and was the only one to actually inflict any wounds on Hensley. Id. at 276. Mr. McGuire acknowledged he was present when Mr. Hensley was killed, but implied his involvement was limited to suggesting the use a knife rather than a gun for the murder. Id. Further, Mr. McGuire testified he "denounced any intention of taking part in murder" after Mr. Brown handed him a steak knife. Id. Mr. McGuire's testimony didn't reveal his true name, his fugitive status, or his Ohio burglary conviction. See Brown III, 41 So.3d at 117; see also Brown II, 846 So.2d at 1126.

In addition to Mr. McGuire's testimony, Florida presented inculpatory statements Mr. Brown made to the FBI, including his confession to killing "a white male" with "Scott" after McGuire hatched the plan to "find someone who owned a car, steal the car, and kill the owner." Brown I, 721 So.2d at 276. Mr. Brown also told the FBI he "stabbed the victim several times in the chest but that McGuire slit the victim's throat." Id. (emphasis added).

Mr. Brown testified as part of his defense at trial. Id. He "denied any involvement in the homicide, claiming instead that McGuire killed Hensley while Brown was asleep as a result of smoking marijuana." Id. And he testified "that after they left the apartment, McGuire threatened to frame him for the murder if [he] told anyone about it." Id.

The jury convicted Mr. Brown of first-degree premeditated murder and first-degree felony murder. Id. At the conclusion of the penalty phase hearing, the jury unanimously recommended he be put to death. Id. at 276-77. The trial judge found four aggravating factors and two non-statutory mitigating factors, accepted the jury's recommendation, and sentenced Mr. Brown to death. Id. at 277.

The Florida Supreme Court affirmed Mr. Brown's conviction and death sentence on appeal. Id. at 277, 283. On May 3, 1999, the United States Supreme Court denied certiorari. Brown v. Florida, 526 U.S. 1102, 119 S.Ct. 1582 (1999) (mem.).


1. Capital Collateral Regional Counsel ("Collateral Counsel")

Some time during May 1999, the Florida Supreme Court appointed Collateral Counsel to represent Mr. Brown in his post-conviction litigation. No more than three months later, Collateral Counsel appears to have withdrawn from representing Mr. Brown. The record does not indicate why or precisely when Collateral Counsel withdrew.[3] The record does, however, suggest Collateral Counsel did no work on Mr. Brown's post-conviction litigation.

2. David Damore

On August 10, 1999, the Florida Circuit Court appointed David Damore to represent Mr. Brown. Mr. Damore was Mr. Brown's attorney of record from August 10, 1999 through February 16, 2000. During this period, Mr. Brown was in federal custody in Beaumont, Texas. Mr. Damore sent Mr. Brown two letters- one dated September 1, 1999 and another dated February 16, 2000. Together, they contained four paragraphs. The first letter asked Mr. Brown to sign and return medical releases and for "a list of all relatives . . . and anyone [else]" who might be able to provide mitigating information about his background. The second letter merely advised Mr. Brown that Damore would no longer be representing him and provided his new attorney's name and street address, but no phone number.

In the 190 days Mr. Damore represented Mr. Brown, nothing in this record indicates he visited Brown or spoke with him by phone. Indeed, Mr. Damore's initial letter directed Mr. Brown to correspond with him in writing. The sum total of Mr. Damore's work for Mr. Brown seems to have been sending the letters mentioned above, receiving whatever records Mr. Brown sent, communicating with his replacement at least twice, and providing his replacement with unspecified records.

3. John Bonaccorsy

On February 16, 2000, the Florida Circuit Court appointed John Bonaccorsy to represent Mr. Brown. Mr. Bonaccorsy had "virtually no experience in the federal appellate system." According to the record we have, the first action Mr. Bonaccorsy took on Mr. Brown's behalf was filing a motion on March 6, 2000 in the Florida Supreme Court requesting an extension for Brown's state post-conviction motion. See Fla. R. Crim. P. 3.850. In this motion, Mr. Bonaccorsy wrote he would be "starting from scratch in this case, as no work had been done on [Mr. Brown's] 3.850 or habeas corpus petition."

In the meantime, Mr. Brown tried reaching Mr. Bonaccorsy by calling both Collateral Counsel and Bonaccorsy's office. On March 30, 2000, Mr. Brown wrote Bonaccorsy, and, on April 4, 2000, Bonaccorsy responded. In his response, Mr. Bonaccorsy included a lengthy paragraph "clarifying what appeals [Brown had] left," but never referenced, either explicitly or implicitly, federal habeas corpus. Rather, Mr. Bonaccorsy outlined the types of claims typically brought in 3.850 motions and Florida habeas corpus petitions and mentioned his agreement was to represent Mr. Brown in Florida state court and in the United States...

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