Downs v. McNeil, No. 05-10210.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBlack
Citation520 F.3d 1311
Decision Date24 March 2008
Docket NumberNo. 05-10210.
PartiesErnest C. DOWNS, Petitioner-Appellant, v. Walter A. McNEIL, Attorney General of Florida, Respondents-Appellees.
520 F.3d 1311
Ernest C. DOWNS, Petitioner-Appellant,
v.
Walter A. McNEIL, Attorney General of Florida, Respondents-Appellees.
No. 05-10210.
United States Court of Appeals, Eleventh Circuit.
March 24, 2008.

[520 F.3d 1312]

Scott S. Balber, Chadbourne & Parke, LLP, New York City, Joy L. Langford (Court-Appointed), Chadbourn & Park, LLP, Washington, DC, for Downs.

Ronald Alan Lathan, Jr., Meredith Charbula, Tallahassee, FL, for Respondents-Appellees.

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

Before BLACK, HULL and WILSON, Circuit Judges.

BLACK, Circuit Judge:


Ernest Charles Downs is a prisoner on Florida's death row. After exhausting his opportunities for state court review, he turned to the federal courts on December 12, 2001, filing a petition for a writ of

520 F.3d 1313

habeas corpus pursuant to 28 U.S.C. § 2254. The district court dismissed the petition as untimely because it was filed eight days beyond the one-year limitations period provided by 28 U.S.C. § 2244(d)(1).

Regardless whether the petition was timely, Downs contends he is entitled to equitable tolling because of egregious conduct by his counsel throughout his post-conviction proceedings. In the alternative, Downs argues on appeal that he is entitled to a hearing on the merits of his petition because he has made a colorable showing that he is actually innocent of a capital offense. We conclude the facts he has alleged, if true, would entitle him to equitable tolling for a period equalling, at a minimum, the eight days by which he missed the statutory limitations period. Therefore, we vacate the district court's dismissal of the petition and remand for an evidentiary hearing on the facts underlying Downs' request for equitable tolling.

I. FACTS AND PROCEDURAL HISTORY

A. Conviction and Early Appeals1

Following a jury trial, Downs was convicted of first degree murder and conspiracy to commit murder for the contract killing of Forest Jerry Harris in 1971. He was sentenced to death.

In 1987, the Florida Supreme Court reversed Downs' sentence after determining he had been prevented from presenting evidence at sentencing that he had not shot the victim. During resentencing proceedings, Downs and other witnesses testified another conspirator had fired the fatal shots. The jury voted eight to four to recommend a capital sentence, and the trial judge reimposed the death penalty. In September 1990, the Florida Supreme Court affirmed Downs' sentence.

B. CCRC-N

Florida's Capital Collateral Regional Counsel (CCRC) is "an entity created by the Florida Legislature to provide postconviction representation to indigent death row inmates." See Sanchez-Velasco v. Sec'y of Dep't of Corr., 287 F.3d 1015, 1017 (11th Cir.2002) (citing Fla. Stat. §§ 27.701-708). In 1992, CCRC attorneys in Tallahassee, Florida began representing Downs.

CCRC operates from several independent regional offices, see Fla. Stat. § 27.702(1); Downs' attorneys worked in the Northern Office (CCRC-N). During the years CCRC-N represented Downs, at least seven attorneys worked on Downs' case.2

C. Later Postconviction Proceedings3

In 1992, Downs' counsel filed a state postconviction motion under Fla. R.Crim. P. 3.850, challenging Downs' capital sentence on numerous grounds, including the withholding of exculpatory evidence and the ineffectiveness of both his trial and resentencing counsel. The postconviction motion remained pending for five years.

520 F.3d 1314

When the motion was denied in 1997, Downs appealed. The Florida Supreme Court affirmed the denial of his postconviction motion on May 19, 1999, Downs v. State, 740 So.2d 506 (Fla.1999), and issued its mandate on October 18, 1999.

While Downs' postconviction motion was pending, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) took effect, establishing a one-year limitations period for state prisoners to seek federal habeas corpus review. 28 U.S.C. § 2244(d)(1). Aware of the limitations period imposed by AEDPA and eager to safeguard his right to federal review, Downs contacted CCRC-N immediately after the Florida Supreme Court denied the appeal of his postconviction motion. In a letter dated May 22, 1999, Downs asked his counsel to (1) petition for rehearing on the denial of his Rule 3.850 motion; (2) prepare a state habeas petition (the next step in Florida's postconviction review process); and (3) file a petition in federal court "asking that [his] case be held in abeyance pending disposition of the state writ." The following week, Downs sent a second letter to counsel, providing a detailed explanation of the history of his case and requesting a visit from counsel to discuss the contents of his postconviction motions. Four months passed with no response from counsel.

Finally, on September 28, 1999, a CCRC-N attorney responded to Downs' letter. The attorney apologized for his delayed response, explaining, "I find myself interrupted by an emergency every time I try to work on your affidavits or consider our next move and your ideas.... [O]nce again, I write to inform you there will be delay before I can return my attention to your case."

Approximately one month later, on October 18, 1999, the Florida Supreme Court issued its mandate denying Downs' post-conviction motion, and Downs' federal habeas limitations period began to run.

Seven months later, on May 26, 2000, Downs' attorneys sent a letter asking Downs to review a draft of a proposed state habeas petition, and sometime later that summer, a CCRC-N attorney told Downs the state habeas petition had been filed — an act that would have tolled the federal habeas limitations period while simultaneously providing Downs with additional state court review. See 28 U.S.C. § 2244(d)(2) (providing that time when properly filed application for post-conviction relief is pending in state court shall not be counted toward one-year limitations period). However, the lawyer's representation was a lie: no state petition had been filed.

On September 3, 2000, six weeks before his federal limitations period was scheduled to expire, Downs sent letters to two of his attorneys. In the first, he wrote:

I don't know if I misunderstood you or what, but when we talked about a month ago, I was left with the impression that my State writ had been filed, and now I find out it's not. You said a legal call would be easy to do. So how about setting one up so we can talk. I ... want to know what's going on.

In the letter to his second attorney, Downs wrote:

I was told back in May that my state writ was done and ready for filing.... [N]ow I find out that my state writ hasn't even been filed. I want to know what's going on! You said yourself that my one year to be in federal court is up next month. So why all this time with nothing in state, especially when I thought I was already in state court[?]

Counsel did not respond to Downs' demand for explanation and did not file either a state or federal habeas petition for more than one month.

520 F.3d 1315

At long last, on October 18, 2000 — the 365th day of Downs' federal limitations period — counsel filed a state habeas corpus petition, thereby temporarily tolling what little remained of Downs' federal habeas deadline. Several weeks later, Downs' lead counsel resigned. A new attorney was appointed to handle Downs' case, but he too resigned one month after being assigned to the case.

Under Florida law, an attorney may not serve as lead counsel representing a capital litigant unless he or she is "a member in good standing of The Florida Bar, with not less than 3 years' experience in the practice of criminal law, and ... ha[s] participated in at least five felony jury trials, five felony appeals, or five capital postconviction evidentiary hearings or any combination of at least five of such proceedings." Fla. Stat. § 27.704(1). When Downs' second lawyer resigned in November 2000, no other attorneys at CCRC-N office were qualified to handle Downs' case although CCRC-N remained Downs' counsel of record. The office obtained a continuance in Downs' case which remained in place from November 2000 until June 2001, when new counsel was finally hired and assigned to the case.

While the state habeas petition remained pending, Downs took additional steps to insure his lawyers would preserve his right to federal review. On June 17, 2001, Downs wrote his newly-assigned counsel directing them to waste no time in filing either a state writ of coram nobis or a federal habeas petition:

Let's not take, any chances ... [A]fter the present writ is argued, I want you to either file what was discussed in state court [the writ of coram nobis] or go ahead and initiate my federal appeal and then move to have it stayed while we return to state court.

Counsel responded with a promise to "be up the first full week in September with a draft."

Although Downs did not have access to any of his legal papers (since they were in his attorneys' possession), Downs prepared for his meeting with counsel by drafting a pro se habeas petition listing the issues he wished to raise in federal court, to compare to the draft his lawyers had promised to bring him. However, when counsel arrived to meet with Downs on September 7, 2001, they did not bring a draft of any state writ or federal petition. Downs gave them a copy of the petition he had drafted himself.

Later that day, a frustrated Downs wrote to counsel with the following directive:

If you're not going to protect my right to a federal appeal by filing what you said you would in state court (and it's pretty clear that you're not going to), then I want you to go ahead and file my federal appeal. You said yourself today, that because [a former CCRC-N attorney] waited one year to file my state writ, that I have to be in federal court no later than the day the pending writ is denied. So no more waiting. Go ahead and file my federal appeal.

Counsel responded by letter on...

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361 practice notes
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    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • July 6, 2016
    ...to timely file this federal habeas petition. See Griffith v. Kentucky, 479 U.S. 314, 321, n.6 (1986); see also, See Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008)(citing Ferreira v. Sec'y, Dep't of Corr's, 494 F.3d 1286, 1289 n.1 (11th Cir. 2007)(this Court has suggested that the lim......
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    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • June 28, 2015
    ...such State action'). Lugo never developed the factual or legal basis for this ground in the district court."). 16. See Downs v. McNeil, 520 F.3d 1311, 1317-18 (11th Cir. 2008) ("Downs' federal limitations period began to run October 18, 1999, the day the Florida Supreme Court issued its man......
  • Lora v. United States, CASE NO. 16-20480-Civ-GAYLES
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • December 12, 2016
    ...became final, or no later than December 30, 2016. See Griffith v. Kentucky, 479 U.S. 314, 321, n.6 (1986); see also, See Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008)(citing Ferreira v. Sec'y, Dep't of Corr's, 494 F.3d 1286, 1289 n.1 (11th Cir. 2007)(this Court has suggested that th......
  • Gasparotto v. United States, CASE NO.: 16-22306-CV-SEITZ
    • United States
    • U.S. District Court — Southern District of Florida
    • December 14, 2018
    ...timely file this federal habeas petition. See Griffith v. Kentucky, 479 U.S. 314, 321, n.6 (1986); see also,Page 7 See Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008)(citing Ferreira v. Sec'y, Dep't of Corr's, 494 F.3d 1286, 1289 n.1 (11th Cir. 2007)(this Court has suggested that the ......
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356 cases
  • Strong v. United States, CASE NO. 16-14212-Civ-MOORE
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • July 6, 2016
    ...to timely file this federal habeas petition. See Griffith v. Kentucky, 479 U.S. 314, 321, n.6 (1986); see also, See Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008)(citing Ferreira v. Sec'y, Dep't of Corr's, 494 F.3d 1286, 1289 n.1 (11th Cir. 2007)(this Court has suggested that the lim......
  • Taite v. Stewart, CIVIL ACTION NO. 13-00322-CG-N
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • June 28, 2015
    ...such State action'). Lugo never developed the factual or legal basis for this ground in the district court."). 16. See Downs v. McNeil, 520 F.3d 1311, 1317-18 (11th Cir. 2008) ("Downs' federal limitations period began to run October 18, 1999, the day the Florida Supreme Court issued its man......
  • Lora v. United States, CASE NO. 16-20480-Civ-GAYLES
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida
    • December 12, 2016
    ...became final, or no later than December 30, 2016. See Griffith v. Kentucky, 479 U.S. 314, 321, n.6 (1986); see also, See Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008)(citing Ferreira v. Sec'y, Dep't of Corr's, 494 F.3d 1286, 1289 n.1 (11th Cir. 2007)(this Court has suggested that th......
  • Gasparotto v. United States, CASE NO.: 16-22306-CV-SEITZ
    • United States
    • U.S. District Court — Southern District of Florida
    • December 14, 2018
    ...timely file this federal habeas petition. See Griffith v. Kentucky, 479 U.S. 314, 321, n.6 (1986); see also,Page 7 See Downs v. McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008)(citing Ferreira v. Sec'y, Dep't of Corr's, 494 F.3d 1286, 1289 n.1 (11th Cir. 2007)(this Court has suggested that the ......
  • Request a trial to view additional results

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