Hutchinson v. Florida

• Decision Date: 19 April 2012
• Docket Number: No. 10–14978.,10–14978.
• Citation: 677 F.3d 1097
• Parties: Jeffrey Glenn HUTCHINSON, Petitioner–Appellant, v. State of FLORIDA, Respondent–Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

677 F.3d 1097

Jeffrey Glenn HUTCHINSON, Petitioner–Appellant,

v.State of FLORIDA, Respondent–Appellee.

No. 10–14978.

United States Court of Appeals, Eleventh Circuit.

April 19, 2012.

D. Todd Doss (Court–Appointed), Law Office of D. Todd Doss, Lake City, FL, for Petitioner–Appellant.

Charmaine M. Millsaps, Meredith Charbula, Office of the Atty. Gen., Tallahassee, FL, for Respondent–Appellee.

Before EDMONDSON, CARNES and BARKETT, Circuit Judges.

CARNES, Circuit Judge:

This is another federal habeas statute of limitations case, involving another equitable tolling issue. See generally 28 U.S.C. § 2244(d) ; Holland v. Florida, ––– U.S. ––––, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). Jeffrey G. Hutchinson was convicted of four counts of first degree murder for shotgunning to death his girlfriend, Renee Flaherty, and her three children: nine-year-old Geoffrey, seven-year-old Amanda, and four-year-old Logan. Hutchinson v. State, 882 So.2d 943, 948–49 (Fla.2004) abrogated by Deparvine v. State, 995 So.2d 351 (Fla.2008). He was sentenced to life imprisonment for the murder of Renee Flaherty and to death for the murder of each child. Id. at 949. His convictions and sentences were affirmed on direct appeal. Id. at 961. After an evidentiary hearing state collateral relief was denied, and that denial was affirmed by the Florida Supreme Court. Hutchinson v. State, 17 So.3d 696, 702–04 (Fla.2009).

The district court dismissed Hutchinson's 28 U.S.C. § 2254 petition for federal habeas relief because it was not filed until July 24, 2009, which was three years, nine months, and twenty-four days (or 1,393 days) after the one-year statute of limitations contained in § 2244(d) had run on September 30, 2005. Hutchinson v. Florida, No. 5:09–CV–261–RS, 2010 WL 3833921 (N.D.Fla. Sept. 28, 2010). This is Hutchinson's appeal from that dismissal.

Under § 2244(d)(1)(A) the one-year period for filing a federal habeas petition starts running on the date "on which the [state court] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." But § 2244(d)(2) provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted." In order for that § 2244(d)(2) statutory tolling to apply, the petitioner must file his state collateral petition before the one-year period for filing his federal habeas petition has run. McCloud v. Hooks, 560 F.3d 1223, 1227 (11th Cir.2009) ; Alexander v. Sec'y, Dep't of Corr., 523 F.3d 1291, 1294 (11th Cir.2008) abrogated on other grounds by Wall v. Kholi, ––– U.S. ––––, 131 S.Ct. 1278, 179 L.Ed.2d 252 (2011) ; see also Hunter v. Ferrell, 587 F.3d 1304, 1308 n. 3 (11th Cir.2009). Hutchinson's state collateral petition was not filed until October 20, 2005, which was twenty days after the entire one-year period for filing the federal petition had run on September 30, 2005, and as a result none of the limitations period for filing his federal petition was left to be tolled. From that point on Hutchinson's hopes for relief were riding all or nothing on his state collateral petition, and the result came up nothing when the Florida Supreme Court affirmed the denial of collateral relief. See Hutchinson, 17 So.3d at 702–04.

Hutchinson recognizes both that his federal habeas petition should have been filed by September 30, 2005, and that because his state collateral petition was not filed until October 20, 2005, he cannot claim statutory tolling under § 2244(d)(2) for any of the time that his state collateral proceeding was ongoing. His sole contention is that he is entitled to equitable tolling. See generally Holland, 130 S.Ct. 2549. Equitable tolling is, well, equitable in nature, and decisions regarding it must be made "on a case-by-case basis" in light of "specific circumstances, often hard to predict in advance," although we "can and do draw upon decisions made in other similar cases for guidance." Id. at 2563 (quotation marks omitted). We turn now to the specific facts and circumstances of this case as well as to the decisions in similar cases for guidance.

The parties agree that the problem in this case arose because the attorneys who filed Hutchinson's state collateral petition misunderstood the date on which the limitations period began to run at the end of the direct appeal process and, as a result, they miscalculated the filing deadline. Because no petition for writ of certiorari was filed in the United States Supreme Court as part of the direct appeal, the time for filing the federal habeas petition started running upon "the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Hutchinson's attorneys understood that, but they misunderstood when the time for seeking certiorari review of a state court's judgment expired. They thought that the time for doing so expired ninety days after the Florida Supreme Court issued its mandate on July 22, 2004. See App. A ¶ 2. Instead, the time actually expired ninety days after the issuance of the Florida Supreme Court's judgment (the opinion was the judgment), which had happened twenty-one days earlier on July 1, 2004. See Sup.Ct. R. 13.3 ("The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice).").

As a result of that misunderstanding, Hutchinson's attorneys miscalculated the deadline by which they were required to file either Hutchinson's federal habeas petition or file his state collateral petition in time to statutorily toll the federal limitations period. They believed that they had until October 20, 2005, instead of September 30, 2005, which was the actual deadline.¹ Because they filed Hutchinson's state collateral petition on October 20, 2005, the § 2244(d)(2) tolling provision did not kick in and when Hutchinson finally filed his federal habeas petition on July 24, 2009, it was three-and-three-quarters years too late.

A petitioner has the burden of establishing his right—if "right" is not too strong a word in the area of equity—to equitable tolling. He must plead or proffer enough facts that, if true, would justify an evidentiary hearing on the issue. Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1060 (11th Cir.2011). And the allegations supporting equitable tolling must be specific and not conclusory. Id. at 1061. The Supreme Court did say in Holland that although equitable relief is flexible and all the facts and circumstances must be considered, we should "draw upon decisions made in other similar cases for guidance." Holland, 130 S.Ct. at 2563. We take that statement to mean this is not an area free of rules of law, governed entirely by the chancellor's foot, but we are instead bound by precedent to the extent that there is precedent.²

Binding precedent has laid down two requirements that a federal habeas petitioner must meet before a court can grant him equitable tolling of the § 2244(d) statute of limitations. In the Supreme Court's words: "[A] petitioner is entitled to equitable tolling only if he shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Holland, 130 S.Ct. at 2562 (quotation marks omitted); Lawrence v. Florida, 549 U.S. 327, 336, 127 S.Ct. 1079, 1085, 166 L.Ed.2d 924 (2007) ; see also Chavez, 647 F.3d at 1066, 1068. The Supreme Court has also instructed us that "a garden variety claim of excusable neglect such as a simple miscalculation that leads a lawyer to miss a filing deadline does not warrant equitable tolling." Holland, 130 S.Ct. at 2564 (citation and quotation marks omitted); Lawrence, 549 U.S. at 336–37, 127 S.Ct. at 1085 ("Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel."); see also Chavez, 647 F.3d at 1066.

This case involves, in Holland 's language, "a garden variety claim of excusable neglect," arising from "a simple miscalculation that leads a lawyer to miss a filing deadline." See Holland, 130 S.Ct. at 2564 (quotation marks omitted). The attorneys who filed the state collateral petition for Hutchinson misunderstood what § 2244(d)(1)(A)'s "expiration of the time for seeking such review" meant when read against Supreme Court Rule 13.3. The fact that they ought to have known better does not justify equitable tolling.³ The attorneys who miscalculated the deadline for filing in the Lawrence case did so because they were not aware of well-settled law that should have prevented any confusion on their part. See Lawrence, 549 U.S. at 336–37, 127 S.Ct. at 1085. Yet, the Supreme Court still held that equitable tolling was not justified in that case because "[a]ttorney miscalculation is simply not sufficient to warrant equitable tolling." Id. at 336, 127 S.Ct. at 1085. If attorney miscalculation, error, or negligence were enough for equitable tolling, the § 2244(d) statute of limitations would be tolled to the brink of extinction because in practically every case where there is a failure to meet the filing deadline an attorney is at fault. See Chavez, 647 F.3d at 1071 ("In virtually every case where the issue of equitable tolling comes up one or more attorneys should have acted with more dispatch, but more than that is required.").

Hutchinson argues that more is involved here than simple attorney error or miscalculation. The "more" that he contends is involved is set out in the affidavit that he filed in the district court in response to the motion to dismiss his federal habeas petition as untimely. (That affidavit is reproduced in full as Appendix A to this opinion.) In his affidavit, Hutchinson states that he repeatedly expressed to the two attorneys who were representing him his...