Clemons v. Commissioner, Alabama Department of Corrections, 073020 FED11, 16-13020

Docket Nº:16-13020
Opinion Judge:MARCUS, Circuit Judge:
Judge Panel:Before WILSON, JILL PRYOR and MARCUS, Circuit Judges.
Case Date:July 30, 2020
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

EUGENE MILTON CLEMONS, II, Petitioner - Appellant,



No. 16-13020

United States Court of Appeals, Eleventh Circuit

July 30, 2020

Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 2:10-cv-02218-LSC

Before WILSON, JILL PRYOR and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

In 1994, an Alabama jury convicted Eugene Clemons for the capital murder of Drug Enforcement Administration Special Agent George Douglas Althouse. Thereafter, a unanimous jury recommended that Clemons be sentenced to death; the state trial court followed the jury's recommendation and sentenced the petitioner to die. Nearly a decade later, the Supreme Court held it unconstitutional to execute intellectually disabled people. See Atkins v. Virginia, 536 U.S. 304 (2002). After Atkins, Clemons timely brought a claim of intellectual disability in Alabama state court. The Alabama courts concluded that Clemons had failed to demonstrate either significant subaverage intellectual functioning or significant deficits in adaptive functioning, as required by Atkins and Alabama case law, and denied the petition. Because the state court's decision was neither contrary to nor an unreasonable application of clearly established Supreme Court law, nor was it based on an unreasonable determination of the facts in light of the evidence presented, we are obliged to deny his federal habeas petition.

Clemons also attempts to bring thirty-one other claims in his federal habeas petition, but those claims are untimely. The Antiterrorism and Effective Death Penalty Act ("AEDPA") requires most claims to be brought within one year of a conviction becoming final on direct review. A "properly filed" state-court petition tolls the one-year federal limitations period. But Clemons's state petition was not "properly filed" -- because his attorneys neither paid the filing fee nor filed a motion to proceed without paying the fee -- until more than one year after his conviction had become final. Clemons now says his lawyer received misinformation from the state court clerk's office, so the federal limitations period should be equitably tolled. But the extraordinary remedy of equitable tolling cannot excuse the simple negligence of an attorney. We affirm the district court's determination that those thirty-one claims are untimely and must be dismissed.

I. Background

On May 28, 1992, Eugene Milton Clemons II shot and killed DEA Special Agent George Douglas Althouse during a carjacking. That evening, Althouse and Naylor Braswell, a Jefferson County Sheriff's Department officer with whom Althouse was working and sharing an apartment, drove a black Camaro to meet another narcotics officer. On the way, they pulled into a service station. Braswell went inside to borrow a telephone book while Althouse remained in the passenger's seat of the car. Braswell looked outside and saw a man get into the driver's seat of the car, armed with a revolver. At trial, he identified Clemons as looking like the man he saw behind the steering wheel. He then heard two shots and saw Althouse dive out of the car. Althouse had been shot, and although he initially returned fire, he eventually succumbed to his injuries and died. Braswell added that a bulletproof vest and a shotgun had been in the Camaro's trunk.

One of Clemons's accomplices, Kenny Reed, also testified at trial. Clemons called him at their mutual friend Herman Shannon's house and asked Reed to pick him up to get "a car." Reed said they drove to an area near a service station and Clemons got out of the car. Reed later heard two gunshots, followed a short time later by several more shots. Clemons then drove off in a black Camaro. When Reed returned to Shannon's house, Clemons was there and said that "no one better open their mouths" because he had killed a DEA agent. Clemons had previously told Reed that Clemons's car needed a new motor.

The following day, on May 29, 1992, the black Camaro was recovered near Shannon's house and the shotgun that had been in the trunk of the car was discovered near Clemons's home. Shortly thereafter, Clemons was arrested in Cleveland, Ohio. His uncle who lived there testified that Clemons's sister had called to say Clemons was coming to Cleveland. Clemons told his uncle that he shot a police officer because the officer was trying to kill him and that he stole the car to get away.

Because Althouse was a federal narcotics officer, Clemons was first tried for murder in federal district court. He was convicted in April 1993 and sentenced to life without parole. The federal conviction was upheld on direct appeal. United States v. Clemons, 32 F.3d 1504 (11th Cir. 1994), cert. denied, 514 U.S. 1086 (1995). In a parallel proceeding, Alabama indicted Clemons for capital murder in March 1993. He was tried and convicted on September 25, 1994, and sentenced to death soon thereafter. Clemons's direct appeals from his state-court conviction and death sentence became final when the United States Supreme Court denied his petition for certiorari on January 25, 1999. Clemons v. Alabama, 525 U.S. 1124 (1999).

On December 27, 1999, Clemons submitted his petition for post-conviction relief, pursuant to Rule 32 of the Alabama Rules of Criminal Procedure, in Shelby County Circuit Court. At that time, however, he neither paid a filing fee, nor moved to proceed in forma pauperis, nor finally did he include a certified copy of his prison account showing his indigency. Clemons says the clerk of the court advised his counsel that there was no filing fee required for a Rule 32 petition. On January 28, 2000, Clemons refiled his Rule 32 petition, only this time along with a request to proceed in forma pauperis and a certified copy of his prison account and a completed nine-page form that is contained in the Rule 32 appendix. After allowing Clemons to amend his petition twice, the circuit court held a limited evidentiary hearing, allowing each party to depose only one witness. The circuit court denied relief on all claims.

At the time of Clemons's trial and the initial filing of his Rule 32 petition, Supreme Court precedent had held that the execution of intellectually disabled persons was not per se unconstitutional. See Penry v. Lynaugh, 492 U.S. 302, 340 (1989) (plurality opinion). But on June 20, 2002, the Court decided Atkins v. Virginia, holding that it is categorically unconstitutional to execute someone who is intellectually disabled.1 536 U.S. at 321. The substantive constitutional rule announced in Atkins applies retroactively on collateral review. See, e.g.,

In re Holladay, 331 F.3d 1169, 1173 (11th Cir. 2003) ("At this point, there is no question that the new constitutional rule . . . formally articulated in Atkins is retroactively applicable to cases on collateral review.").

Because Atkins was decided after the circuit court's denial of his Rule 32 petition, but before his appeal to the Alabama Court of Criminal Appeals, Clemons argued for the first time on appeal that his death sentence was unconstitutional because of his intellectual disability. However, Clemons had advanced a related argument, based on the same underlying facts, in his initial Rule 32 petition, claiming that his counsel was ineffective at trial for having failed to present mitigating evidence of his limited mental capacity.

On August 29, 2003, the Alabama Court of Criminal Appeals remanded Clemons's case to the circuit court with instructions to conduct an evidentiary hearing and make written findings on both his Atkins claim and the ineffective- assistance-of-counsel claim based on his trial attorneys' failure to present mitigating evidence of his intellectual disability. See Clemons v. State, 55 So.3d 314, 322 (Ala.Crim.App.2003).

The circuit court conducted an extensive evidentiary hearing on Clemons's Rule 32 petition from June 15 to June 18, 2004. Over the four-day hearing, the court heard testimony from four witnesses: Dr. Charles Golden (Clemons's medical psychological expert); Joseph Chong-Sang Wu (Clemons's PET brain scan expert); Dr. Helen Mayberg (Alabama's PET brain scan expert); and Dr. David Glen King (Alabama's medical psychological expert).

The evidence pertinent to Clemons's Atkins claim included seven intelligence quotient ("IQ") tests. His scores on those tests, discussed in more detail in section III.B.1 of this opinion, varied widely from a score of 84 to a score of 51, and in several instances the administrators of the tests opined that the scores were invalid because Clemons was "malingering," that is, he intentionally frustrated the efficacy of the IQ test. As for adaptive functioning, only Clemons's medical expert testified. He had administered a test of adaptive functioning -- the Adaptive Behavior Assessment System test -- and found Clemons severely deficient in six of the ten behavioral areas the test covers.

On October 28, 2004, the Shelby County Circuit Court denied Clemons's petition, adopting nearly verbatim a 90-page proposed order submitted by the state.

On June 24, 2005, the Alabama Court of Criminal Appeals affirmed. See Clemons v. State, 55 So.3d 314, 322-32 (Ala.Crim.App.2005). The Court of Criminal Appeals laid out the circuit court's findings and analysis on the Atkins claim verbatim, and adopted them: We have reviewed the record in light of [relevant Alabama precedents], and we conclude that it supports the circuit court's findings. Therefore, we adopt those findings as part of this opinion. Based on the record before us, we conclude that, even under the broadest definition of mental retardation, the appellant is not mentally retarded and that imposition...

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