Thomas v. Attorney Gen.

• Decision Date: 31 July 2015
• Docket Number: No. 13–14635.,13–14635.
• Citation: 795 F.3d 1286
• Parties: William Greg THOMAS, Petitioner–Appellant Cross Appellee, v. ATTORNEY GENERAL, State of FLORIDA, Secretary, Florida Department of Corrections, Respondents–Appellees Cross Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

795 F.3d 1286

William Greg THOMAS, Petitioner–Appellant Cross Appellee

v.ATTORNEY GENERAL, State of FLORIDA, Secretary, Florida Department of Corrections, Respondents–Appellees Cross Appellants.

No. 13–14635.

United States Court of Appeals, Eleventh Circuit.

July 31, 2015.

John Stewart Mills, Courtney Rebecca Brewer, Andrew David Manko, The Mills Firm, Tallahassee, FL, for Petitioner–Appellant Cross Appellee.

Charmaine Mary Millsaps, Stephen Richard White, Office of the Attorney General, Tallahassee, FL, for Respondents–Appellees Cross Appellants.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 3:03–cv–00237–TJC–TEM.

Before ED CARNES, Chief Judge, and MARCUS and WILLIAM PRYOR, Circuit Judges.

Opinion

MARCUS, Circuit Judge:

In this capital case, William Greg Thomas appeals from the district court's denial of his federal habeas petition. In 1994, Thomas was sentenced to death by the Florida courts for the murder of his wife, which he orchestrated to avoid paying his part of a divorce settlement. After a series of unsuccessful attempts to pursue state postconviction remedies, Thomas eventually filed a federal habeas petition in the United States District Court for the Middle District of Florida. The district court held that Thomas's petition was untimely, but that he was entitled to equitable tolling in light of his attorney's egregious misconduct. Ultimately, however, the district court denied him relief on the merits.

We now have before us a motion from the Attorney General of Florida to limit briefing to the question of equitable tolling, as well as a motion from Thomas to stay the current briefing schedule until the resolution of the Attorney General's motion. After thorough review of the entire record, however, we conclude, sua sponte, that the proper course is to remand this case to the district court to make additional and detailed findings of fact concerning Thomas's claim to equitable tolling, including exactly what may have happened and, most importantly, why counsel did not timely file this § 2254 petition. Moreover, the district court is directed to apply these findings of fact to the changing landscape in the law of equitable tolling, found in the Supreme Court and this Court's recent cases: Holland v. Florida (Holland II), 560 U.S. 631, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010), Maples v. Thomas, –––U.S. ––––, 132 S.Ct. 912, 181 L.Ed.2d 807 (2012), and Cadet v. Fla. Dep't of Corr., 742 F.3d 473 (11th Cir.2014). Thus, among other things, the district court is obliged to ultimately answer whether the conduct of Thomas's lawyer amounted to an “abandonment of the attorney-client relationship,” Cadet, 742 F.3d at 481, or whether her alleged “bad faith, dishonesty, divided loyalty, [and] mental impairment,” Holland v. Florida (Holland I ), 539 F.3d 1334, 1339 (11th Cir.2008), rev'd on other grounds, Holland II, 560 U.S. 631, 130 S.Ct. 2549, nonetheless constitute grounds for equitable tolling. Thus, we deny as moot the state's motion to limit briefing before this Court to equitable tolling and the petitioner's motion to stay the current briefing schedule.

I.

The essential facts, as recounted by the Florida Supreme Court, are these:

Thomas planned the kidnapping and murder of his wife, Rachel, in order to avoid paying his part of a settlement agreement in their pending divorce. Thomas and a friend, Douglas Schraud, went to Rachel's house, September 12, 1991, the day before a substantial payment was due, and Thomas beat, bound, and gagged Rachel. When Rachel tried to escape by hopping outside, Thomas knocked her to the ground and dragged her back inside by her hair. He then put her in the trunk of her car and drove off. She was never seen again.

Thomas v. State, 693 So.2d 951, 951 (Fla.1997) (per curiam). Thomas was charged with first-degree murder, burglary, and kidnapping, and Richard Nichols was appointed to represent Thomas during his trial. The jury found him guilty on all counts and recommended the death penalty by a vote of eleven to one. The judge found five aggravating factors: (1) Thomas had previously been convicted of murdering his mother, Fla. Stat. § 921.141(5)(b) ; (2) the murder was committed in the course of a burglary, id. § 921.141(5)(d) ; (3) the murder was committed for pecuniary gain, id. § 921.141(5)(f) ; (4) the murder was especially heinous, atrocious, or cruel, id. § 921.141(5)(h) ; and (5) the murder was committed in a cold, calculated, and premeditated manner, id. § 921.141(5)(i). He imposed the ultimate sentence, and Thomas's conviction and sentence were affirmed on direct appeal. Thomas, 693 So.2d at 953. Thomas unsuccessfully filed a motion for postconviction relief under Rule 3.850 of the Florida Rules of Criminal Procedure, see Thomas v. State, 838 So.2d 535 (Fla.2003), as well as a motion for re-sentencing under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), which failed as well. During these postconviction proceedings, Thomas was represented by Dale Westling.

Thomas then sought habeas relief in federal district court. On March 24, 2003, he filed an emergency motion requesting that a Florida attorney, Mary Catherine Bonner, be appointed to represent him in federal habeas proceedings. The district court conducted a hearing on March 26 and, convinced that Bonner was qualified to represent the petitioner, appointed her as counsel on April 2. Bonner, however, did not file a federal habeas petition on behalf of her client until almost a year later. On June 4, 2003, the court ordered her to submit a status report within two weeks. She filed two sealed status reports in June and July, attesting that she needed “at least six weeks additional time” to file the petition. She also filed a series of sealed motions with the court, addressing investigative needs and costs. On February 19, 2004, the court—having heard nothing from Bonner about the status of the petition for seven months—ordered her once again to advise the court on the status of the case by March 15. On that date, she responded and sought leave to file Thomas's habeas petition by March 19. She eventually filed the petition on March 22, 2004. The one-year statute of limitations for filing a habeas petition, see 28 U.S.C. § 2244(d)(1), however, had long since passed—on June 18, 2003.

The state responded to Thomas's petition, asserting that it was time-barred. On January 18, 2006, the district court took argument on the issue of timeliness, and asked Bonner to explain why she did not file the petition in a timely manner. She explained that “the reason that I ... allowed it to get close to the margin, and ... perhaps over the margin, is that I felt that the court needed to be presented with all of the facts.” Specifically, she claimed to have needed additional time to investigate the circumstances of Thomas's plea in another murder case—in which he pled guilty to murdering his mother (the “mother-murder case”)—as well as speak with several alibi witnesses. Lastly, she argued that the limitations period should be equitably tolled for the time she needed to investigate these new claims. After the hearing, the district court appointed John Mills as co-counsel for Thomas, and directed the parties to file supplemental briefing on the issue of timeliness.

Ultimately, the district court concluded that Thomas's petition was untimely and that he was not entitled to equitable tolling. Thomas v. McDonough, 452 F.Supp.2d 1203, 1212, 1218 (M.D.Fla.2006).

The court held that Thomas had shown no impediment to the filing of his state motion for postconviction relief or his federal habeas petition. Id. at 1213. Nor was Thomas entitled to equitable tolling simply because he had directed his attorneys to file his petition on time. Id. at 1216. Instead, the court reasoned, “[c]ounsel's decision to file late constitute[d] attorney negligence,” which could not form a basis for equitable tolling. Id. at 1217. For these reasons, the court dismissed Thomas's petition with prejudice.

Thomas then moved for reconsideration. The court conducted argument on the motion on December 17, 2007, at which time Bonner, in the words of the district court, “blamed the mental and physical health of her husband and herself” for her failure to file the habeas petition in a timely fashion. As we see it, Bonner's statements were more equivocal. Bonner began her testimony by apologizing to the court, and acknowledged that the court felt “cheated because [she] made errors.” She stated that she “had what [she] believed to be reasoned decisions for filing at the time” she did. But she also explained that her husband had suffered a stroke in November 2001 that “continue[d] to prey on [her], and ... give context to the way [she] [felt] and the way [she] acted.” She clarified that she was “not saying simply, you know, my husband had a stroke, therefore, I've made a mistake.” Instead, she indicated that the cumulative impact of her husband's and her own health issues may have put her under a significant amount of stress. However, she admitted that “I can't tell you whether and how that weight impacted on me.” And she again stressed that she felt obliged to investigate issues Thomas had raised that were of “paramount dispositive importance.”

Shortly after the hearing, the district court granted Thomas's motion for reconsideration and his request for an evidentiary hearing. In order to address equitable tolling, the district court took testimony from Thomas, Bonner, and Westling on February 21, 2008. In his testimony, Thomas provided a detailed account of his correspondence with Bonner. He testified, among other things, that Bonner sent him a letter on March 3, 2003, before she was appointed, stating that she believed the best course would be to file a petition for certiorari with the U.S. Supreme Court to “buy some time to file the 2254 [petition].” She explained that “it is horrible when we have to litigate timeframes...