Etterer v. Boyd, et al. (INMATE 3)

Filing 22

ORDERED as follows: 1. Petitioner's objection as to the reasonable diligence prong of Holland is OVERRULED; 2. The Magistrate Judge's Recommendation as to the reasonable diligence prong of Holland is ADOPTED; 3. Petitioner's request for relief under 28 U.S.C. § 2254 is DENIED; and 4. This case is DISMISSED with prejudice. A final judgment will be entered separately. Signed by Chief Judge William Keith Watkins on 4/12/2017. (kh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
JOHNATHAN SEPP ETTERER,
AIS # 278594,
Petitioner,
v.
LOUIS BOYD, et al.,
Respondents.

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CASE NO. 3:14-CV-1139-WKW
[WO]

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
On November 7, 2014, Petitioner Johnathan Etterer, an Alabama inmate, filed
a habeas petition under 28 U.S.C. § 2254 challenging his state conviction for
attempted murder. In his petition, he claims ineffective assistance of counsel.
However, the petition was filed more than one year after “the date on which the
judgment became final,” 28 U.S.C. § 2244(d)(1)(D), making it time-barred.1 Thus,
the issue is whether Petitioner can demonstrate a reason sufficient for the court to
equitably toll the limitations period and consider his petition nonetheless.
On February 3, 2017, the Magistrate Judge filed a Recommendation
advocating dismissal of Petitioner’s claim on the ground that he has failed to make

It is not disputed that Petitioner filed his petition late. (See Doc. # 16, at 2 (“Mr. Etterer
does not contest the fact that his petition was filed nearly seven months out of time.”).)
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the showing necessary to establish his entitlement to equitable tolling. (Doc. # 20.)
Petitioner filed timely objections. (Doc. # 21.) Upon an independent and de novo
review of the record and Recommendation, Petitioner’s objections are due to be
overruled and the Magistrate Judge’s Recommendation is due to be adopted.
II. DISCUSSION
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’ and prevented timely filing.” Holland v. Florida, 560 U.S. 631,
649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). “The
diligence required for equitable tolling purposes is ‘reasonable diligence,’ not
‘maximum feasible diligence.’” Id., at 653 (citations omitted). Furthermore, “the
reasonable diligence and extraordinary circumstance requirements are not blended
factors; they are separate elements, both of which must be met before there can be
equitable tolling.” Cadet v. Fla. Dep’t of Corr., --- F.3d ----, No. 12-14518, 2017
WL 727547, at *7 (Feb. 24, 2017). Because Petitioner has failed to establish the
first prong, his case is due to be dismissed.
A.

Reasonable Diligence
In his objections, Petitioner does not challenge the legal proposition, as stated

by the Magistrate Judge, that “[w]here attorney inaction is asserted as a basis for
equitable tolling, the court, in applying the reasonable diligence standard, should
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focus on ‘the petitioner’s own actions in the face of his attorney’s inaction.’” (Doc.
# 20, at 5.) Rather, Petitioner objects to the Magistrate Judge’s factual conclusion
that Petitioner has failed “to show any diligence at all, much less reasonable
diligence.” (Doc. # 20, at 7.) Responding to this charge, Petitioner asks for a hearing
and contends for the first time that “it is believed the evidence would show that [he]
wrote his attorney numerous letters asking for updates and that the parents of the
petitioner called the attorney numerous times without success.” (Doc. # 21, at 2.)
The court is unpersuaded by Petitioner’s last-ditch effort to circumvent the
statute of limitations. Before his most recent objection, Petitioner never alleged facts
to suggest that he pursued his rights with anything resembling reasonable diligence,
and he was given ample opportunity to do so. For example, prior to entering her
Recommendation, the Magistrate Judge ordered Petitioner to “show cause why his
federal habeas petition should not be denied as it was not filed within the one-year
limitation period.” (Doc. # 10.) Petitioner filed a brief arguing he was abandoned
by his counsel (Doc. # 16), whom his parents had retained, but nowhere in the brief
does he claim he ever personally tried to contact his attorney.
Thereafter, the Magistrate Judge ordered Petitioner to address whether his
abandonment claim “provides a basis for equitable tolling of the one-year limitation
period.” (Doc. # 17.) Again, he failed to claim that he made any effort to contact

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his retained attorney.2 In fact, the brief goes on to explain that Petitioner and his
attorney “never spoke” and that his attorney “never even sent him so much as a
letter” and “never communicated with [Petitioner] in any way.” (Doc. # 18, at 4.)
Despite all the talk of communication, Petitioner never mentions that he made any
effort to contact his lawyer.
Now, facing dismissal for failure to pursue his rights with reasonable
diligence, Petitioner’s tune has changed. He avers for the first time in his objections
that he wrote his attorney “numerous letters asking for updates.” (Doc. # 21, at 2.)
Because Petitioner makes this argument for the first time in his objections, the court
will not consider it. See Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009)
(holding that the district court “properly exercised its discretion in deciding whether
to consider any new arguments raised by [petitioner] in his objections to the
magistrate judge’s report and recommendation”). Accordingly, his first objection is
due to be overruled.
B.

Extraordinary Circumstance
As the Magistrate Judge points out, “Etterer’s failure to demonstrate

reasonable diligence precludes equitable tolling in this case.” (Doc. # 20, at 7.) For

Petitioner does claim that his parents “attempted to stay in contact with” his attorney.
(Doc. # 18.) However, the court looks to Petitioner’s own actions in determining whether he
pursued his claims with reasonable diligence, see George v. Sec’y Dep’t of Corr., 438 F. App’x
751, 753 (11th Cir. 2011), and Petitioner does not offer a reason why his parents’ actions should
be considered as his own.
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this reason, the court need not and declines to decide whether Petitioner was
“abandoned” by his attorney within the understanding of this circuit’s and the
Supreme Court’s post-Holland jurisprudence. See, e.g., Maples v. Thomas, 565 U.S.
266, 283 (2012) (adopting Justice Alito’s view, as set forth in his Holland
concurrence, that “under agency principles, a client cannot be charged with the acts
or omissions of an attorney who has abandoned him”); Cadet, 2017 WL 727547, at
*7 (reiterating the distinction between claims involving abandonment and claims
involving attorney error).
III. CONCLUSION
In light of the foregoing, it is ORDERED as follows:
1.

Petitioner’s objection as to the reasonable diligence prong of Holland

is OVERRULED;
2.

The Magistrate Judge’s Recommendation as to the reasonable diligence

prong of Holland is ADOPTED;
3.

Petitioner’s request for relief under 28 U.S.C. § 2254 is DENIED; and

4.

This case is DISMISSED with prejudice.

A final judgment will be entered separately.
DONE this 12th day of April, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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