Thomas v. McDonough

• Decision Date: 25 September 2006
• Docket Number: No. 3:03-cv-237-J-32.,No. 3:03-cv-397-J-32.,3:03-cv-237-J-32.,3:03-cv-397-J-32.
• Citation: 452 F.Supp.2d 1203
• Parties: William Greg THOMAS, Petitioner, v. James R. McDONOUGH, et al., Respondents. Floyd Damren, Petitioner, v. James R. McDonough, et al., Respondents.
• Court: U.S. District Court — Middle District of Florida

452 F.Supp.2d 1203

William Greg THOMAS, Petitioner, v. James R. McDONOUGH, et al., Respondents.

Floyd Damren, Petitioner, v. James R. McDonough, et al., Respondents.

No. 3:03-cv-237-J-32.

No. 3:03-cv-397-J-32.

United States District Court, M.D. Florida, Jacksonville Division.

September 25, 2006.

COPYRIGHT MATERIAL OMITTED

John Stewart Mills, Mills & Carlin, P.A., Jacksonville, FL, Mary Catherine. Bonner, P.A., Fort Lauderdale, FL, for Petitioner.

Cassandra Kaye Dolgin, Attorney General's Office, Tallahassee, FL, Curtis M. French, Tallahassee, FL, for Attorney General, State of Florida.

ORDER OF DISMISSAL WITH PREJUDICE

CORRIGAN, District Judge.

Preface

Before the Court are three capital cases which all present the same troubling question when counsel appointed by this very Court to represent capital habeas petitioners fail to file the habeas petitions on time, does the petitioner have any remedy?¹ Based on my reading of current Eleventh Circuit precedent, the answer is no. In this opinion I so rule. However, because of the importance of this issue, not only to the affected petitioners, but to this Court as well, I think it appropriate to share some thoughts.

First, I have no idea whether any of these petitioners have meritorious federal habeas claims. Because the petitioners are not asserting actual innocence and because I have found the claims time-barred, I have not looked at the merits. Certainly, the state courts in each case have concluded, after painstaking review, that the death sentences are proper. But, the law provides for federal habeas review in capital cases and this Court is therefore obliged to provide due and proper process to these petitioners. "

Second, at least in this part of Florida, there appears to be a tremendous shortage of attorneys who will admit to being experts in federal habeas procedures and who will agree to be appointed to these cases. Most often, whomever represented petitioners in the state collateral proceedings will agree, sometimes reluctantly, to handle the federal work even if not well-versed in the federal habeas statute and limitations period.

Third, the one-year federal limitations period is, as in these cases, often fairly close to running immediately upon the completion of state post conviction proceedings, putting pressure on post conviction counsel to Me a timely federal petition.

Fourth, in these cases, the Court agreed to appoint these counsel, at their request, upon what the Court at the time thought was a sufficient showing of expertise to be able to properly prosecute the cases. Obviously, if the Court had known then that these counsel would (or in one case already had) miss the federal limitations deadline, it would not have appointed them (assuming the Court had any other option available).

Fifth, counsel in these cases really have no good reason or explanation for their failure to file on time. I suppose both counsel should be commended on the one hand for stepping into the breach of capital litigation, where relatively few lawyers will tread. But having said that, it is hard for me to fathom how a lawyer who asked for and received the appointment of this Court, could abdicate the most basic function of Ming the petition on time, even if it is "bare-bones."

Sixth, while acknowledging that Eleventh Circuit precedent places responsibility for timeliness on the petitioner himself, there are real practical concerns. If capital petitioners were able to navigate the shoals of federal habeas litigation without assistance, there would be no need to appoint counsel in the first place. Yet, federal law provides for appointment and payment of counsel in federal habeas capital cases, thereby acknowledging the necessity of such counsel. See 18 U.S.C. 3599(a)(2). Moreover, once counsel is appointed, a petitioner should be able to rely on that counsel to, if nothing else, file his petition on time. Finally, this Court's procedures mandate that once counsel is appointed, the petitioner may only Me pleadings through counsel. Indeed, the Court routinely strikes and returns pro se filings of parties who are represented by counsel. So, even a savvy petitioner, who may see the clock running out on his habeas time, can only cajole (and in one case plead with) his counsel to file the petition timely.

I recognize the sound legal and policy reasons which underpin the Eleventh Circuit's decisions on this issue and, even if I did not, I am no less bound by them. Nevertheless, I would be remiss if I did not share my deep concern that in these cases our federal system of justice fell short in the very situation where the stakes could not be higher.

I. Status

These capital cases are before the Court on Petitioners' Request for Consolidated Oral Argument and Motion to Consolidate Records.² This Court finds that the Request for Consolidated Oral Argument should be denied since an oral argument was previously conducted addressing the one-year limitation period and equitable tolling issues. Further, this Court will construe the Motion to Consolidate Records as a Motion to Consolidate Cases, which will be granted pursuant to Fed. R.Civ.P. 42(a)³, with respect to Case Nos. 3:03-cv-237-J-32 and 3:03-cv-397-J-32, for the limited purpose of addressing the one-year limitation issue⁴ Thus, although there are different parties and different facts involved in these actions, these cases have common questions of law with respect to the one-year limitation issue. Further, Rule 42(a) "should be used to . . . eliminate unnecessary repetition and confusion." Miller v. U.S. Postal Service, 729 F.2d 1033, 1036 (5th Cir.1984) (citation omitted). The timeliness of each petition, however, will be evaluated independently.

II. History

These cases contain common issues of whether the petitions were timely filed in this Court and, if not, whether equitable tolling applies to render them timely. An oral argument was conducted on January 18, 2006, addressing the one-year limitation period and equitable tolling issues. Thereafter, on February 27, 2006, the Court appointed John S. Mills, Esquire, as Petitioner's co-counsel in both cases for the limited purpose of addressing the timeliness and equitable tolling issues because some of the grounds upon which equitable tolling arguments might be based implicated Petitioner's previously appointed counsels' own conduct. Mr. Mills was ordered to file supplemental responses to Respondents' assertion of untimeliness, addressing timeliness under 28 U.S.C. § 2244(d) and equitable tolling, including attorney conduct. Further, Respondents were ordered to respond to the supplemental responses.

III. The Law

There is a one-year statute of limitation on federal habeas actions as follows:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the, right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The 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 toward any period of limitation under this subsection.

28 U.S.C. § 2244(d).

The Eleventh Circuit recently set forth the governing law on equitable tolling of this limitation period.

"It is by now clear in this Circuit that `[e]quitable tolling can be applied to prevent the application of the AEDPA's statutory deadline when "extraordinary circumstances" have worked to prevent an otherwise diligent petitioner from timely filing his petition.'" Drew, 297 F.3d at 1286 (quoting Helton v. Sec'y for the Dep't of Corr., 259 F.3d 1310, 1312 (11th Cir.2001)). "Equitable tolling is an extraordinary remedy which is typically applied sparingly." Steed v. Head, 219 F.3d 1298, 1300 (11th Cir.2000). "In order to be entitled to the benefit of equitable tolling, a petitioner must act with diligence, and the untimeliness of the filing must be the result of circumstances beyond his control." Drew, 297 F.3d at 1286-87. The petitioner is charged with the burden of establishing that equitable tolling should apply. Id. at 1286; Helton, 259 F.3d at 1313-14.

Not belying its status as an extraordinary remedy, "this Court has rejected most claims far equitable tolling." Diaz v. Sec'y for the Dep't of Corr., 362 F.3d 698, 701 (11th Cir.2004). For example, we have held that "[a]n attorney's miscalculation of the limitations period or mistake is not a basis for equitable tolling," Steed, 219 F.3d at 1300; see also Helton, 259 F.3d at 1313 (holding that an attorney's miscalculation or misinterpretation does not constitute extraordinary circumstances), and that an attorney's negligence was not a ground for equitable tolling where the petitioner's habeas petition was filed outside of the AEDPA statute of limitations because his attorney used ordinary mail service. Sandvik v. United States, 177 F.3d 1269, 1271-72 (11th Cir.1999). These circumstances were not "extraordinary" because the ultimate failure to file within the statutory period was a direct result of decisions made and actions taken by the petitioner or his attorney. Having created the situations that caused their petitions...