Jones v. Stephens

• Decision Date: 06 February 2014
• Docket Number: Civil Action No. 4:05–CV–638–Y.
• Citation: 998 F.Supp.2d 529
• Parties: Quintin Phillippe JONES, Petitioner, v. William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Northern District of Texas

998 F.Supp.2d 529

Quintin Phillippe JONES, Petitioner,

v.William STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

Civil Action No. 4:05–CV–638–Y.

United States District Court,

N.D. Texas,

Fort Worth Division.

Feb. 6, 2014.

Lydia M.V. Brandt, Brandt Law Firm, Richardson, TX, for Petitioner.

Jeremy C. Greenwell, Office of the Texas Attorney General, Austin, TX, for Respondent.

MEMORANDUM OPINION AND ORDER GRANTING PETITIONER'S MOTION TO ALTER OR AMEND THE JUDGMENT UNDER FED. R. CIV. P. 59(e)

TERRY R. MEANS, District Judge.

Petitioner Quintin Phillippe Jones has moved to alter or amend the Court's judgment on remand dismissing his petition for a writ of habeas corpus. Motion to Alter or Amend [doc. 103]; Memorandum Opinion and Order [doc. 101]. Among other things, Jones's motion asserts for the first time that the Court's 2005 order appointing his federal habeas counsel satisfies the “extraordinary circumstances” requirement for equitable tolling because the order undertook to protect Jones's right to a timely filed petition.¹ Respondent contends that this new argument may not be raised in a 59(e) motion and that, in any case, the appointment order does not provide the extraordinary circumstances necessary for equitable tolling. Respondent argues that the order is directed to “Petitioner” and not to counsel alone, that it simply restates what is already required by statute, and that it did not prevent Jones from timely filing his petition.

I.

Upon careful reconsideration, the Court concludes that Jones's motion should be granted and that Respondent's motion to dismiss the petition as time-barred should be denied. The Court does not reach these conclusions lightly.

Equitable tolling requires Jones to show both that (1) he has been pursuing his rights diligently, and (2) some extraordinary circumstances stood in his way and prevented a timely filing. See Holland v. Florida, 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). The appointment order changes the analysis of both of these requirements.

A.

The 2005 appointment order, together with the following facts, satisfy the diligence requirement. Seven days after the Court received this case on Strickland's motion to appoint counsel, Jones wrote a letter asking the Court not to appoint Strickland based, among other things, on the breakdown in communications between them during state habeas proceedings. Pro Se Motion to Appoint Counsel [doc. 5]. Jones also wrote to Strickland, asking him not to “get appointed” in federal court.²Ex. S.³ Nevertheless, the Court appointed Strickland because of his familiarity with the case and issued the appointment order instructing that “Petitioner” timely file the petition and that the petition demonstrate its timeliness.

Jones then filed a pro-se motion to remove Strickland and appoint different counsel, alleging that Strickland's failure (1) to timely file the state writ application and (2) to investigate and present certain mitigation-related claims, showed that Strickland “will not represent Petitioner in a competent much less professional manner.” Applicant's Pro Se Motion for the Appointment of Different Counsel at 2 [doc. 9] (“Motion to Substitute Counsel”). Jones also wrote to Strickland, asking him to step down as counsel. Ex. U. Strickland's response asserted (among other things) that the late filing was excused by the state court for good cause and that it was not found to be a result of a conscious disregard of professional responsibilities. Strickland also noted that he had advised the federal magistrate that he did not wish to be appointed in this proceeding. Response from Petitioner's Counsel to Pro Se Motion for Appointment of Counsel at 5–6 [doc. 13].

In a second pro-se motion, Jones sought, in the alternative, to have co-counsel appointed in the case. Applicant's Second Pro Se Motion for the Appointment of Different Counsel at 5 [doc. 14]. The Court denied both of the pro-se requests. Order Denying Pro Se Motion for Appointment of Counsel [doc. 17]. Both Jones and Strickland apparently acquiesced to this ruling. See Ex. V, Y. Strickland then filed the petition about six months later, after the statute of limitations deadline had passed. Petition [doc. 19].

The correctness of the ruling on Jones's pro-se motions is not before this Court.⁴ Nevertheless, it is difficult to overlook the fact that Jones's concerns about Strickland's ability to provide “competent” and “professional” representation proved in retrospect to be justified. Even if he could not have known that Strickland would miss the filing deadline, Jones had taken multiple, timely steps toward ensuring competent habeas representation. Furthermore, the appointment order addressing the timeliness of the petition could reasonably have caused Jones to relax his vigilance regarding the exact filing deadline, as well as his obligation to make sure Strickland met it. In sum, Jones's independent efforts to avoid, to remove, and then to provide co-counsel for Strickland, all of which occurred during the period he seeks to toll, together with the appointment order, show that Jones exercised reasonable diligence in the pursuit of his federal habeas rights. See Holland, 130 S.Ct. at 2565 (holding that, in addition to other factors, Holland's efforts to remove counsel, “the central impediment to the pursuit of his legal remedy,” constituted reasonable diligence).

B.

The Court also concludes that the 2005 appointment order, when considered with the other circumstances in this case, satisfies the extraordinary-circumstances requirement. Jones makes many allegations of unprofessionalism against Strickland, but he does not dispute that what actually prevented a timely filing was Strickland's negligent miscalculation of the deadline.⁵ Such a “garden variety” claim of excusable neglect does not warrant equitable tolling. See Holland, 560 U.S. at 651–52, 130 S.Ct. 2549; Lawrence v. Florida, 549 U.S. 327, 336–37, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007). This rule is premised on the rationale that mistakes of counsel are constructively attributable to the client, at least in the postconviction context, because the attorney is acting as the petitioner's agent. Holland, 560 U.S. at 656, 130 S.Ct. 2549 (Alito, J., concurring); Coleman v. Thompson, 501 U.S. 722, 753–54, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)).

Here, there was simple negligence that might normally be controlled by Lawrence. Upon further consideration, however, the Court concludes that the Lawrence rule should not be applied because the negligence occurred during the course of a mutually undesired attorney-client relationship that had broken down. To be sure, the friction between Jones and Strickland mainly concerned Strickland's refusal to pursue what he believed to be frivolous Atkins and Wiggins claims, claims upon which Jones has no right to insist. See Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (recognizing that an indigent defendant has no constitutional right to compel appointed counsel to press even non-frivolous points on appeal if counsel, as a matter of professional judgment, decides not to present those points). But the friction also concerned, albeit to a lesser extent, Strickland's inability to meet a state filing deadline, something Jones has a right to insist upon. Motion to Substitute Counsel at 1–2 [doc. 9]. The Court concludes that equity should not compel a mutually undesired agency relationship that, in the end, proved entirely fruitless for the client, who had made diligent efforts to avoid it in the first place. Cf. Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 396–97, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (holding that dismissal of claim because of counsel's late filing in bankruptcy case does not impose an unjust penalty on the client who “voluntarily chooses” his attorney); Link, 370 U.S. 626, 633–34, 82 S.Ct. 1386 (1962) (Harlan, J.) (holding that client in personal injury action cannot avoid the consequences of the acts or omissions of his “freely selected” lawyer-agent); see also Crutcher v. Aetna Life Ins. Co., 746 F.2d 1076, 1083 (5th Cir.1984) (denying relief for attorney incompetence where client voluntarily chose his attorney because this voluntary choice is “at the heart of our representative litigation process”); Lucas v. Abbott Labs., No. 3:12cv3654–B, 2013 WL 2905488, *7 (N.D.Tex. June 13, 2013) (holding that plaintiffs “voluntarily chose” their attorney and cannot avoid the consequences of the acts or omissions of this freely selected agent).

This is not to say that capital habeas petitioners may have the appointed counsel of their choosing or can dictate the claims to be raised by counsel, but simply acknowledges that the agency rule that makes a client responsible for his lawyer's acts or omissions is founded on, at least, a voluntary relationship. The record is abundantly clear that, while they acquiesced to this Court's orders, Jones and Strickland had both taken affirmative steps to avoid Strickland's appointment in federal court. Strickland's failure to reply to Respondent's motion to dismiss and his failure to appeal the Court's first dismissal order, while they occurred after the filing of the petition, demonstrate just how broken the relationship continued to be, even after appointment. Strickland had given his “whole-hearted” approval to another attorney to speak to Jones and pick up the reigns of this case. Strickland's 2008 Letter to the Court [doc. 33].

Assuming Lawrence does not control, the granting of equitable tolling still would require extraordinary circumstances to have prevented Jones from timely exercising his rights. Respondent points out that the 2005 appointment order did not “prevent” Jones from filing his petition or mislead him about the due...