Miller v. Sec'y, Fla. Dep't of Corrs.
| Decision Date | 17 November 2021 |
| Docket Number | 3:17-cv-932-BJD-JBT |
| Parties | DAVID MILLER, JR, Petitioner, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents. |
| Court | U.S. District Court — Middle District of Florida |
Petitioner David Miller, Jr., a Florida prisoner convicted and sentenced to death, filed a Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254 (Petition) (Doc. 15) and a Memorandum of Law (Memorandum) (Doc. 24).[1]Respondents, in their Response Brief to Petition for Writ of Habeas Corpus (Response) (Doc 29), submit that the Petition is untimely filed and Petitioner must argue for equitable tolling, requiring that he demonstrate both that he diligently pursued his federal habeas rights and extraordinary circumstances prevented his timely filing of a federal habeas petition.[2] Response at 17-30. In Petitioner's Reply in Support of 28 U.S.C. § 2254 Petition (Reply) (Doc. 33), Petitioner claims equitable tolling is warranted. Reply at 5-13. The Court conducted a limited evidentiary hearing on October 21, 2021.[3]
As acknowledged by the parties, the Petition is untimely filed, filed well beyond the Antiterrorism and Effective Death Penalty Act (AEDPA) one-year statute of limitations. Response at 10; Petition at 7. See Order (Doc. 35) for the calculation of the relevant one-year period.[4]
Petitioner did not file his federal Petition (Doc. 15) until Wednesday, January 30, 2019, well past the expiration of the one-year limitation period.[5]The Petition filed on January 30, 2019 is untimely and due to be dismissed unless Petitioner can establish equitable tolling of the statute of limitations is warranted. Petitioner submits that equitable tolling “is pertinent here.” Petition at 9. He contends his mental health issues impacted his ability to communicate with counsel, making effective communication virtually impossible. Id. at 10-11. He argues that courts have widely recognized that equitable tolling applies when a defendant suffers some form of mental incapacity (citing Bolarinwa v. Williams, 593 F.3d 226, 231 (2d Cir. 2010); Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001), overruled in part on other grounds, Carey v. Saffold, 536 U.S. 214 (2002); Fisher v. Johnson, 174 F.3d 710 (5th Cir. 1999), cert. denied, 531 U.S. 1164 (2001); Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2013); and Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009) (per curiam). Petition at 11.
Petitioner also relies on a contention that he should be entitled to equitable tolling based on serious deficiencies in state post-conviction representation. Id. Although not fleshed out in the Petition, he suggests there may be some sort of abandonment or attorney misconduct that may be uncovered which would “qualify as a basis for equitable tolling.” Id. at 11.
In his Memorandum, Petitioner claims he suffers from “severe schizophrenia and other mental health conditions that rendered him incompetent and unable to communicate with his attorneys or make rational decisions regarding his legal rights.” Memorandum at 14. He contends mental illness can form the basis for equitable tolling, referencing cases he mentioned in the Petition and adding McSwain v. Davis, 287 Fed.Appx. 450, 456 (6th Cir. 2008), cert. denied, 557 U.S. 919 (2009), for additional support. Memorandum at 14. He also claims counsel inexplicably failed to file a timely federal habeas petition due to egregious failures on counsel's part to do any work on Petitioner's case after the Florida Supreme Court affirmed the denial of post-conviction relief. Id. at 14-15. See Reply at 9-10 ().
In their Response at 25, Respondents contend Robert Norgard, Esquire, Petitioner's post-conviction counsel, “intentionally missed the federal habeas deadline in this case and others in order to avoid his clients' inclusion on the list of defendants eligible for a death warrant.” Respondents explain that, in Florida, before the Governor signs a warrant of execution, a defendant has to undergo executive clemency, and, generally, this review does not take place until after a federal petition for writ of habeas corpus has been denied in the federal district court and relief has been denied by the Eleventh Circuit Court of Appeals. Id.
Petitioner submits, his “incompetence justifies equitable tolling[, ]” Reply at 7, previously cited cases and citing Ata v. Scutt, 662 F.3d 736, 741 (6th Cir. 2011); Calderon v. United States District Court, 163 F.3d 530, 541 (9th Cir. 1998), abrogated on other grounds, Woodford v. Garceau, 538 U.S. 202 (2003), cert. denied, 526 U.S. 1060 (1999); Ryan v. Gonzales, 568 U.S. 57, 67-68 (2013); Smith v. Kelly, 301 Fed.Appx. 375, 378 (5th Cir. 2008) (per curiam); and Trapp v. Spencer, 479 F.3d 53, 62 (1st Cir. 2007). Reply at 7-8. He contends his mental illness satisfies both the diligence and extraordinary circumstances prongs. Id. at 9. Alternatively, Petitioner says his incompetence coupled with the “apparent abandonment by prior counsel” justifies equitable tolling and requires fact-finding by the Court, citing Schmid v. McCauley, 825 F.3d 348, 350 (7th Cir. 2016). Reply at 9. See Downs v. McNeil, 520 F.3d 1311, 1325 (11th Cir. 2008) (); Ata, 662 F.3d at 741 (same).
The Court, in its Order (Doc. 35), found numerous questions were raised by Respondents' contention that Mr. Norgard intentionally missed the federal habeas deadline, including but not limited to: (1) did Mr. Norgard intentionally miss the federal habeas deadline; (2) if Mr. Norgard intentionally missed the deadline, did Mr. Norgard discuss his strategy with Petitioner and did Petitioner agree with the strategy to attempt to delay the scheduling of his execution date by failing to timely file a federal petition or agree to some other strategy not yet revealed; (3) did Mr. Norgard negligently miss the deadline; (4) did Mr. Norgard's conduct amount to abandonment of the attorney-client relationship; (5) was there severance of the agency relationship; (6) did Mr. Norgard purposely act adversely to Petitioner's interests by acting or failing to act for the purpose of advancing Mr. Norgard's own interests or those of a third party; and (7) did Mr. Norgard take actions that were contrary to Petitioner's instructions and adverse to his interests. Order (Doc. 35 at 10-11).
Since Mr. Norgard represented Petitioner on the appeal of the denial of the Rule 3.851 motion, and since the federal one-year limitation period expired on August 3, 2006, under Mr. Norgard's watch, the Court scheduled an evidentiary hearing to address the conduct of Mr. Norgard and the related conduct of Petitioner. Order (Doc. 47). The Court expressed its concern as to whether Petitioner was informed of Mr. Norgard's strategy (if one existed) and agreed with an intentional strategy of not filing a timely federal petition or acquiesced in counsel's decision or some similar strategy as yet unrevealed. Order (Doc. 35 at 11-12).
The Court will first explore the cases cited by Petitioner in support of his contention that his mental illness satisfies both the diligence and extraordinary circumstances prongs. Petitioner relies on Bolarinwa, 593 F.3d at 231, which held, under the appropriate circumstances, mental illness can justify equitable tolling of the AEDPA's limitation period. The Second Circuit opined that sister circuits have held the same, citing McSwain, Laws, Nara, and Fisher. Respondents counter Petitioner's argument, pointing out that in Bolarinwa, the Second Circuit remanded the case to allow the petitioner to present evidence in support of her contention. Response at 21. Of importance, on remand, the United States Magistrate Judge reviewed the medical records concerning the petitioner's mental health care and treatment, found that she undeniably suffers from a mental illness, but also found that she functioned, for the most part, in prison population, and “failed to carry her burden of establishing a basis to invoke equitable tolling” in order to resuscitate her untimely petition. Bolarinwa v. Kaplan, No. 9:07-CV-1113 (LEK-DEP), 2012 WL 2394819, at *1 (not reported in F.Supp.2d), report and recommendation adopted by 2012 WL 2402889 (N.D.N.Y. June 25, 2012).
Notably, in Bolarinwa, the petitioner had been adjudicated to be an incapacitated person, received treatment, was then found rehabilitated and fit to proceed to trial. Id. The medical records showed she suffered from episodes of depression, anxiety, and psychosis. Id. at *7. The Court determined an evidentiary hearing was unnecessary in light of the comprehensive nature of the records received by the court concerning the petitioner's mental health treatment, the extreme length of time involved, and the fact that the record fails to reflect evidence to support the claim for equitable tolling. Id. at *9 n.6. Ultimately, the court found she was not subjected to extraordinary circumstances that prevented her, despite due diligence, from filing a habeas petition. Id. at *10. In adopting the
Magistrate Judge's report and recommendation, the District Judge found the petitioner had been pursuing her legal rights by filing and researching other legal claims before filing her federal petition and she was engaged in various legal endeavors. Bolarinwa, 2012 WL 2402889, at *3. The Court found neither an exceptional circumstance nor due diligence. Id. at *4.
In Nara, 264 F.3d at 320, the Third Circuit acknowledged that mental incompetence is not a per se reason for tolling a statute of limitations. Instead the court found...
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