Clemons v. Allen et al

Filing 33

MEMORANDUM OPINION, as set out, re respondents' Motion to Dismiss Eugene Clemons's Untimely-filed Petition for Writ of Habeas Corpus, (doc. 25). Signed by Judge Sharon Lovelace Blackburn on 3/17/15. (CTS, )

FILED
2015 Mar-17 AM 09:38
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
EUGENE MILTON CLEMONS, II,
Petitioner,
vs.
WILLIAM G. SHARP, JR., Interim
Commissioner, Alabama Department of
Corrections; WALTER MYERS,
Warden, Holman Correctional Facility,
Respondents.

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CASE NO. 2:10-CV-2218-SLB

MEMORANDUM OPINION
This case is presently pending before the court on respondents’ Motion to Dismiss
Eugene Clemons’s Untimely-filed Petition for Writ of Habeas Corpus. (Doc. 25.)1 Petitioner
Eugene Milton Clemons, II, protectively filed a Petition for Writ of Habeas Corpus in this
court on August 16, 2010. (Doc. 1.) After a stay of the matter pending additional state postconviction proceedings, respondents, William G. Sharp, Jr. and Walter Myers, filed a Motion
seeking to dismiss Clemons’s petition as untimely filed. Upon consideration of the record,
the submissions of the parties, and the relevant law, the court is of the opinion that
respondents’ Motion to Dismiss Eugene Clemons’s Untimely-filed Petition for Writ of
Habeas Corpus, (doc. 25), is due to be granted in part and denied in part.

1

Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.

Pursuant to the Antiterrorism and Effective Death Penalty Act [hereinafter
“AEDPA”], Antiterrorism and Effective Death Penalty Act's (AEDPA):
(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.A. § 2244(d). “[Subsection] 2244(d)(1) provides that a ‘1-year period of limitation
shall apply to an application for a writ of habeas corpus.’” Pace v. DiGuglielmo, 544 U.S.
408, 416 n.6 (2005)(emphasis in Pace). Subsection 2244(d)(1) “provides one means of
calculating the limitation with regard to the ‘application’ as a whole, § 2244(d)(1)(A)(date
of final judgment), but three others . . . require claim-by-claim consideration, § 2244(d)(1)(B)

2

(governmental interference); § 2244(d)(1)(C)(new right made retroactive); § 2244(d)(1)(D)
(new factual predicate).” Id. In this Circuit, “the statute of limitations in AEDPA applies
on a claim-by-claim basis in a multiple trigger date case.” Zack v. Tucker, 704 F.3d 917, 926
(11th Cir.)(en banc); see also id. at 927 (Carnes, J., concurring specially)(“Adopting the
petitioner’s interpretation of the statutory language [that § 2244(d)(1)(B)-(D) applied to the
application as a whole] would mean that every time the Supreme Court issued a decision
recognizing a new, retroactively applicable constitutional right, the statute of limitations bar
would be lifted for any and all other claims a petitioner wished to bring. And that would be
true no matter how old those other claims were, no matter how unrelated they were to the
new law claim, and no matter how baseless the new law claim was in that case.”).
This case is a “multiple trigger date case.” See id. at 926. Petitioner has raised an
Atkins claim,2 (doc. 1 ¶¶ 27-41, at pp. 27-30 [stating as a ground for relief, “Mr. Clemons is

2

On June 2, 2002, the Supreme Court decided Atkins v. Virginia, 536 U.S. 304 (2002).
In Atkins, the Supreme Court held:
Our independent evaluation of the issue reveals no reason to disagree with the
judgment of the legislatures that have recently addressed the matter and
concluded that death is not a suitable punishment for a mentally retarded
criminal. We are not persuaded that the execution of mentally retarded
criminals will measurably advance the deterrent or the retributive purpose of
the death penalty. Construing and applying the Eighth Amendment in the light
of our evolving standards of decency, we therefore conclude that such
punishment is excessive and that the Constitution places a substantive
restriction on the State’s power to take the life of a mentally retarded offender.
Id. (internal citation and quotations omitted). “[T]here is no question that the rule . . .
announced by the Supreme Court in Atkins . . . is a new rule of constitutional law made
3

mentally retarded and cannot be executed under the United States Supreme Court decision
in Atkins v. Virginia”]), which the parties agree is timely pursuant to § 2244(d)(1)(C). (Doc.
28 at 25; doc. 30 at 22.) Therefore, respondents’ Motion to Dismiss, (doc. 25), will be
denied as to petitioner’s Atkins claim.
As for Clemons’s remaining grounds for relief, respondents contend the claims are
barred by § 2244(d)(1)(A)’s one-year statute of limitations, and such claims are not subject
to either statutory or equitable tolling.
A. STATUTORY TOLLING
The issue for this court to decide is whether petitioner’s Rule 32 post-conviction
petition was “properly filed” in the Alabama state court on December 27, 1999, or on January
28, 2000. Clemons’s conviction became final on January 25, 1999, the date the Supreme
Court of the United States denied his petition for writ of certiorari. Pursuant to § 2244(d)(1),
Clemons had one year to file his federal habeas petition; however, this one-year limitations
period is tolled while “a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending,” id. (d)(2). Therefore, if
Clemons’s Rule 32 petition was “properly filed” on December 27, 1999, the time for filing
his habeas petition in this court was tolled and his habeas petition is timely. However, if his
Rule 32 petition was not “properly filed” until January 28, 2000, the time for filing his

retroactive to cases on collateral review by the Supreme Court that was previously
unavailable.” In re Holladay, 331 F.3d 1169, 1172 (11th Cir. 2003).
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federal habeas petition expired and his petition, save his Atkins claim, was untimely filed.3
See Sibley v. Culliver, 377 F.3d 1196, 1204 (11th Cir. 2004)(“We note in closing that none
of the documents Sibley attempted to file with the state courts after August 10, 2001 – the
deadline for filing a federal habeas petition – could in any way toll that deadline because,
once a deadline has expired, there is nothing left to toll. A state court filing after the federal
habeas filing deadline does not revive it.” (citing Moore v. Crosby, 321 F.3d 1377, 1381
(11th Cir. 2003))).
The undisputed facts show that Clemons, represented by counsel, filed his Petition for
Relief from Judgment Pursuant to Rule 32 of the Alabama Rules of Criminal Procedure
[hereinafter “Rule 32 Petition”] without a filing fee or application to waive the filing fee and
proceed in forma pauperis. Clemons has filed a copy of his Rule 32 Petition, which was
stamped “received & filed” on December 27, 1999, by the Court Clerk of the Circuit Court
of Shelby County. (Doc. 28-1 at 2.) His Rule 32 Petition contained the following request
for relief – “Provide Mr. Clemons, who is indigent and incarcerated, funds sufficient to
present witnesses, experts, and other evidence in support of the allegations in this Petition
and any amendments thereto.” (Id. at 32.)
On December 27, 1999, Rule 32.6(a) of the Alabama Rules of Criminal Procedures
provided:

3

The parties agree that, unless tolled, the deadline for filing his federal habeas petition
expired no later than January 26, 2000. (See doc. 25 at 9; doc. 28 at 7.)
5

A proceeding under this rule is commenced by filing a petition, verified by the
petitioner or petitioner's attorney, with the clerk of the court. A petition may
be filed at any time after entry of judgment and sentence (subject to the
provisions of Rule 32.2(c)).4 The petition should be filed by using or
following the form accompanying this rule. If that form is not used or
followed, the court shall return the petition to the petitioner to be amended to
comply with the form. The petition shall be accompanied by two copies
thereof. It shall also be accompanied by the filing fee prescribed by law or
rule in civil cases in circuit court unless the petitioner applies for and is given
leave to prosecute the petition in forma pauperis, in which event the fee shall
be waived. If the petitioner desires to prosecute the petition in forma pauperis,
he shall file the In Forma Pauperis Declaration at the end of the form. In all
such cases, the petition shall also be accompanied by a certificate of the
warden or other appropriate officer of the institution in which the petitioner is
confined as to the amount of money or securities on deposit to the petitioner's
credit in any account in the institution, which certificate may be considered by
the court in acting upon his application for leave to proceed in forma pauperis.
Upon receipt of the petition and the filing fee, or an order granting leave to the
petitioner to proceed in forma pauperis, the clerk shall file the petition5 and
promptly send a copy to the district attorney (or, in the case of a petition filed
in the municipal court, to the municipal prosecutor).
Ala. R. Crim. P. 32.6(a)(2000)(footnotes and emphasis added).

4

On December 27, 1999, Rule 32.2(c) provided that a two-year statute of limitations
for filing a Rule 32 petition for post-conviction relief, measured from the date the certificate
of judgment was issued by the Court of Criminal Appeals. Ala. R. Crim. P. 32.2(c)(2000).
Therefore, Clemons’s Rule 32 Petition was “timely” filed under Alabama law whether it was
deemed filed in January 2000, when he filed his application to proceed in forma pauperis,
or December 1999, when he filed his Rule 32 Petition without the filing fee and without a
request to waive the fee.
5

The Alabama Court of Criminal Appeals held, “A Rule 32 petition is deemed filed
for purposes of the limitations period the date the petition, accompanied by a request to
proceed in forma pauperis, is submitted to the circuit court, not the date the circuit court
grants the request to proceed in forma pauperis.” Hyde v. State, 950 So. 2d 344, 353 (Ala.
Crim. App. 2006).
6

The Circuit Court’s Case Action Summary shows that Clemons’s Rule 32 Petition was
“filed” on January 28, 2000 – noting:
Motion to proceed In Forma Pauperis filed.
Declaration in support of [motion to] proceed In Forma Pauperis filed.
Petition for relief from conviction or sentence pursuant to Rule 32 of the
Alabama Rules of Criminal Procedure filed.
Grounds of petition filed.
(Doc. 28-3 at 2.)
On March 14, 2000, Clemons filed a Motion to Correct Clerical Error, asking the
court “to correct a clerical error of the Clerk of the Circuit Court of Shelby County,” and
“direct[ ] the Clerk to docket, as filed on December 27, 1999, Petitioner’s [Rule 32]
Petition.” (Doc. 28-7 at 2.) The state court set Clemons’s motion for a hearing and
specifically instructed counsel “to provide the Court with appropriate case law re: the issue
of filing without the appropriate Motion to Proceed In Forma Pauperis and order thereon
being filed with the original petition.” (Doc. 28-3 at 3.) On May 4, 2000, after a hearing on
the matter, the state court denied Clemon’s Motion to Correct Clerical Error because “the
Court finds the Defendant’s Rule 32 Petition was properly filed on January 28, 2000.” (Id
at 5.)
The Circuit Court’s decision to deny Clemons’s Motion to Correct Clerical Error was
affirmed on appeal. Clemons v. State, 55 So. 3d 314, 335 (Ala. Crim. App. 2003), rev’d on
other grounds Ex parte Clemons, 55 So. 3d 348 (Ala. 2007)(holding that Court of Criminal

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Appeals could not raise procedural bar of preclusion sua sponte absent extraordinary
circumstances). In its decision, the Alabama Court of Criminal Appeals held:
In this case, the petition that counsel attempted to file on December 27,
1999, was not accompanied by a filing fee or a request to proceed in forma
pauperis. Therefore, the petition was not properly filed at that time, as
contemplated by Rule 32.6(a), Ala. R. Crim. P. Thereafter, on January 28,
2000, a Rule 32 petition and a request to proceed in forma pauperis were
presented to the circuit clerk, and that was the date the circuit clerk used as the
filing date for the Rule 32 petition. The circuit court did not grant the request
to proceed in forma pauperis until February 2, 2000. Therefore, the circuit
court should have used February 2, 2000, as the filing date.6 However, as the
appellant concedes, any error regarding the filing date is not important in this
case because the appellant timely filed his petition. Under these
circumstances, the circuit court properly denied the appellant's request to
change the filing date to December 27, 1999.
Id.
Clemons contends that his Rule 32 Petition was filed on December 27, 1999, based
on two rules:
First, when there is a discrepancy regarding a filing date, the petition is
deemed filed when stamped as such by the court. See Ex parte Nesbitt, 850
So. 2d 228, 229 (Ala. 2002). Second, if a petition initially contains some
insufficiency, such as an incomplete filing fee or IFP request, Alabama law
deems it properly filed when first submitted to the court so long as the defect

6

In Hyde v. State, the Court of Criminal Appeals held that the Rule 32 Petition,
overruled the Clemons’s court’s finding that the Rule 32 Petition is deemed filed when the
filing fee is waived by the grant of IFP status. See Hyde v. State, 950 So. 2d 344, 348, 353
and n.6 (Ala. Crim. App. 2006). It held that, “to the extent that Clemons holds that a Rule
32 petition is not deemed ‘filed’ until the date the circuit court grants the request to proceed
in forma pauperis, it is hereby overruled;” however, it noted, “In those cases, as in Clemons,
in which a petition is initially submitted without a request to proceed in forma pauperis, the
correct filing date would be the date the request to proceed in forma pauperis is eventually
submitted.” Id. at 353 and n.6.
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is cured within a reasonable period of time. See id. at 231-32; Garrett v. State,
644 So. 2d 977, 980 (Ala. Crim. App. 1994), overruled on other grounds by
Ex parte Jenkins, 972 So. 2d 159 (Ala. 2005); Hyde v. Alabama, 950 So. 2d
344, 353 (Ala. Crim. App. 2006). These two rules, separately and together,
dictate that Mr. Clemons’[s] Rule 32 petition be deemed properly filed on
December 27, 1999 because (1) the court stamped it filed and received on that
date and (2) the deficiency contained in Mr. Clemons’ initial IFP request was
promptly cured.
(Doc. 28 at 10.)
The fact that the Circuit Court Clerk stamped Clemons’s Rule 32 Petition “received
and filed” does not indicate that the Rule 32 Petition was “properly filed” as that term has
been interpreted by the Supreme Court. In Artuz v. Bennett, 531 U.S. 4 (2000), the Court
stated, “If, for example, an application is erroneously accepted by the clerk of a court lacking
jurisdiction, or is erroneously accepted without the requisite filing fee, it will be pending,
but not properly filed.” Artuz, 531 U.S. at 9 (bold emphasis added; other emphasis in
original). The court, therefore, finds that the “filed” stamp on the face of Clemons’s Rule
32 Petition does not prove that his Rule 32 Petition was “properly filed” on December 27,
1999.
The undisputed facts show that Clemons’s Rule 32 Petition was not accompanied by
the required filing fee or an application to waive the filing fee in conformity with Rule 32's
requirements. However, Clemons contends that a request for relief included in his Rule 32
Petition constituted an application to proceed in forma pauperis, although not in the required
“form.” (Doc. 28 at 12.) As stated above, Clemons’s Rule 32 Petition contained this request
for relief – “Provide Mr. Clemons, who is indigent and incarcerated, funds sufficient to
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present witnesses, experts, and other evidence in support of the allegations in this Petition
and any amendments thereto.” (Doc. 28-1 at 32.) This request for relief makes no mention
of a filing fee or ask for waiver of the same. The court has rejected this argument in a
factually-similar case. In Smith v. Campbell, Case No. 5:05-CV-1547-LSC-JEO, a death
habeas case, the petitioner Smith, like Clemons, had argued that his request to be provided
“funds sufficient to present witnesses, experts and other evidence” contained in his Rule 32
Petition was the equivalent of an IFP motion, although not in the proper technical form. The
court held:
Smith acknowledges that the Rule 32 application filed on September 27,
2001, was not accompanied by an In Forma Pauperis (“IFP”) Declaration or
the filing fee. (Doc. 17 at 5-6). He also does not deny that he never filed a
Declaration or statement of his prisoner account, and did not pay the filing fee
until February 6, 2002. (Id.). Instead, he states that “Alabama law does [not]
require a motion to proceed in forma pauperis to be in a prescribed form.” (Id.
at 6 n. 5 (citing ALA. R. CRIM. P. 32.6(a)). He further argues,
In the prayer for relief at the end of Mr. Smith’s state habeas petition,
Mr. Smith stated: “Petitioner Ronald Bert Smith, Jr. respectfully asks
this Honorable court to grant him the following relief. . . (b) provide
petitioner, who is indigent, with funds sufficient to present witnesses,
experts, and other evidence in support of the allegations contained in
this petition.” (E.H. CR. 157). While Mr. Smith’s request to proceed
in forma pauperis was not in the proper form, Alabama courts have no
authority to provide funds to a petitioner absent a petitioner being
deemed in forma pauperis. Accordingly, it is implied, that Mr. Smith,
in his prayer for relief, was requesting to proceed in forma pauperis.
(Id.).
Contrary to Smith’s assertion, the foregoing language in his prayer for
relief does not imply that he be granted IFP status so that the filing fee could
be waived. The filing fee is not even mentioned nor did Smith file a certified
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copy of his prison account funds as proof of indigence. Smith also does not
provide any case law illustrating that Alabama has no authority to “provide
funds” in the absence of an IFP declaration. In order to properly file the
petition, the mandatory language of Rule 32.6(a) required Smith [to file] a
separate declaration form and proof of financial indigence by producing a
certified copy of his prison account. Smith clearly did neither.
For the foregoing reasons, this court rejects Smith’s argument that he
properly filed his Rule 32 application in accordance with State form and filing
requirements. The September 27, 2001, Rule 32 application was not properly
filed, and therefore did not trigger the tolling requirements of 28 U.S.C.
§2244(d)(2).

Smith v. Campbell, Case No. 5:05-CV-1547-LSC-JEO, doc. 32 at 19-20 (N.D. Ala. Jan. 15,
2009).
The Eleventh Circuit affirmed and held:
Although the February 6, 2002 filing was timely under Alabama's two
year statute of limitations, it was not within the one year statute of limitations
required by AEDPA. Relying on statutory tolling, Smith[, the petitioner],
argues that we should consider the Rule 32 Petition as having been “properly
filed” on September 27, 2001, when it was originally submitted to the Clerk,
albeit without the filing fee or a motion to proceed in forma pauperis.
However, Alabama law precludes such a construction of AEDPA's
requirement for a “properly filed” state petition. See Artuz v. Bennett, 531
U.S. 4, 8, 121 S. Ct. 361, 148 L. Ed. 2d 213 (2000) (“[A]n application is
‘properly filed’ when its delivery and acceptance are in compliance with the
applicable laws and rules governing filings.”). Alabama law requires that a
Rule 32 petition “be accompanied by the filing fee prescribed by law or rule
in civil cases in the circuit court unless the petitioner applies for and is given
leave to prosecute the petition in forma pauperis.” Ala. R. Crim. P. 32.6(a).
Alabama courts have unequivocally required that one of these formalities,
either the payment of the filing fee or the filing of an in forma pauperis
motion, be completed in order for a Rule 32 petition to be considered properly
filed. See, e.g., Ex Parte Carter, 807 So. 2d 534, 536-37 (Ala. 2001)(holding
that where neither a filing fee nor a motion to proceed in forma pauperis were
filed with a Rule 32 petition, the Alabama circuit court lacked jurisdiction to
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consider the petition precisely because the petitioner had omitted them); Hyde
v. Alabama, 950 So. 2d 344, 353 (Ala. Crim. App. 2006)(“A Rule 32 petition
is deemed filed for purposes of the limitations period the date the petition,
accompanied by a request to proceed in forma pauperis, is submitted to the
circuit court, not the date the circuit court grants the request to proceed in
forma pauperis.”); Clemons v. State, 55 So. 3d 314, 333-37 (Ala. Crim. App.
2003)(“[I]n this case, the petition that counsel attempted to file on December
27, 1999, was not accompanied by a filing fee or a request to proceed in forma
pauperis. Therefore, the petition was not properly filed at that time, as
contemplated by Rule 32.6(a), Ala. R.Crim. Pro.”), rev’d on other grounds, Ex
parte Clemons, 55 So. 3d 348 (Ala.2007), overruled in part by Hyde, 950 So.
2d at 353. [Footnote] Accordingly, we find no reversible error in the district
court's determination that Smith's federal habeas petition was time barred
because it was not filed within AEDPA's one-year statute of limitations, which
was not statutorily tolled because Smith's Rule 32 Petition had not been
“properly filed” during AEDPA's one-year limitation period. See 28 U.S.C.
§ 2244(d)(2).
[Footnote:] Smith's reliance on Hyde as support for his position is
unpersuasive. In Hyde, the state court was willing to treat the date of
the original submission of the Rule 32 petition as the properly filed date
because the petitioner had fully complied with the state court filing fee
rules by filing a motion to proceed in forma pauperis and it was the
court that caused the delay by not ruling on the motion to proceed in
forma pauperis for some time. 950 So. 2d at 353. Hyde's rationale is
simply inapplicable here, where neither the filing fee nor motion for in
forma pauperis was filed. Nor do we find Garrett v. State, 644 So. 2d
977 (Ala.Crim.App.1994), overruled by Ex parte Jenkins, 972 So. 2d
159 (Ala.2005), applicable to support Smith's argument that his filing
date should relate back to the date that his petition was originally sent
to the Clerk. Garrett addressed the requisite form for a Rule 32
petition. It is not applicable to the circumstances here,7 especially in
light of the Alabama law explicitly addressing the failure involved in
this case.

7

Those “circumstances” included a request for relief, similar to that included in
Clemons’s Rule 32 Petition, and failure to pay the filing fee or file an IFP petition. See Smith
v. Campbell, No. 5:05-cv-01547-LSC-JEO, doc. 32 at 19-20.
12

Smith v. Commissioner, Alabama Dept. of Corrections, 703 F.3d 1266, 1270-71 & n.4 (11th
Cir. 2012) Clemons contends that his situation “is readily distinguishable” from Smith
because Smith “addresses only a petition that did not contain any sort of request for IFP
status.” (Doc. 28 at 13.) However, Smith’s circumstances are indistinguishable from
Clemons’s circumstances.
Based on binding Supreme Court and Eleventh Circuit caselaw, the court finds that
Clemons’s Rule 32 Petition was not properly filed until after the expiration of the deadline
for filing his § 2254 habeas petition. Therefore, Clemons is not entitled to any period of
statutory tolling pursuant to § 2244(d)(2).
In the alternative, the court finds that the Rule 32 Petition was not “properly filed”
based on the state-courts’ decisions denying his motion to have his Rule 32 Petition deemed
filed on December 27, 1999. See Carroll v. Price, Case No. 5:14-CV-0065-JHH-TMP, 2015
WL 225468, *4 (N.D. Ala. Jan. 16, 2015)(“For this court’s purposes, therefore, these [statecourt orders finding Rule 32 Petition not timely filed because no filing fee was paid with
petition] mean that petitioner never ‘properly filed’ the Rule 32 petition and it had no
statutory tolling effect.”). This finding is entitled to deference. Allen v. Siebert, 552 U.S. 3,
7 (2007)(citing, inter alia, Pace v. DiGuglielmo, 544 U.S. 408, 414-17 (2005); see also Cross

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v. McDonough, No. 4:06cv460-RH/WCS, 2008 WL 817088, *6 (N.D. Fla. March 25, 2008).
B. EQUITABLE TOLLING
“[Section] 2244(d) is subject to equitable tolling in appropriate cases.” Holland v.
Florida, 560 U.S. 631, 645 (2010). However, “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.” Id. at 649 (quoting
Pace, 544 U.S. at 418))(internal quotations omitted). “Because a lawyer is the agent of his
client, a federal habeas petitioner – who does not have a constitutional right to counsel – is
ordinarily bound by his attorney’s errors . . . .” Cadet v. Fla. Dep't of Corr., 742 F.3d 473,
477-78 (11th Cir.2014). Therefore, the Eleventh Circuit has held “that attorney negligence,
however gross or egregious, does not qualify as an ‘extraordinary circumstance’ for purposes
of equitable tolling; abandonment of the attorney-client relationship . . . is required.” Id. at
481.
But for counsel’s failure to pay the filing fee or submit an application for waiver of
the filing fee Clemons’s Rule 32 Petition would have been filed on December 27, 1999, and
would have tolled the time for filing his federal habeas petition. However, counsel did not
pay the filing fee or submit an in forma pauperis application to waive the fee until January
28, 2000, after the expiration of the statute of limitations for filing the federal petition.
Counsel’s failure to pay the filing fee or submit an application for waiver of the fee did not
constitute an abandonment; rather, their error appears to have been “garden variety”

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negligence.8 Therefore, counsel’s error is not an extraordinary circumstance sufficient to
warrant equitable tolling of the time for filing his federal habeas petition..

8

Counsel for Clemons has submitted an affidavit, in which he states that an employee
in the Shelby County Circuit Clerk’s Office “informed [him] that a check for a filing fee was
not necessary to file the [Rule 32] Petition.” (Doc. 28-12 ¶ 4.) Also, he stated:
If the Shelby County Clerk’s office had indicated that a filing fee was
necessary, I would have sent a check . . . with the Rule 32 Petition on
December 27, 1999. If the Shelby County Clerk’s office had indicated on
December 27, 1999, or anytime thereafter, that a filling fee was necessary, I
would have had a check sent immediately to the courthouse. If I had not seen
the file-stamped Rule 32 Petition marked “received and filed” on January 3,
2000, I would have inquired and then sent a check. Because there was no
indication that a check might be required until after the In Forma Pauperis
Petition had been filed, no check was ever issued from my law firm for the
Rule 32 Petition in this matter.
(Id. ¶ 6.) Counsel contends, “As a result of my conversation with the Clerk’s office, it was
my understanding that no fee was required to accompany the Rule 32 Petition.” (Id. ¶ 7.)
The court does not question the reasons given by counsel for his failure to pay the
filing fee at the time he filed the Rule 32 Petition. Although he may have been misled to
assume that no filing fee or an application to waive the filing fee was necessary at the time
of filing, his assumption that the Rule 32 Petition would be “properly filed” on December 27,
1999, was not reasonable, even considering the statement and subsequent non-action of the
Shelby County Clerk’s Office. Rule 32.6 plainly stated that the filing fee or waiver of the
filing fee was required at the time of filing. Moreover, nothing in the words or actions of the
Clerk’s Office constitute an extraordinary circumstance that prevented counsel from paying
the filing fee or submitting an application to waive the fee on December 27, 1999, or filing
his federal habeas petition within the time allowed. See Sandvik v. United States, 177 F.3d
1269, 1271 (11th Cir. 1999)(“Equitable tolling is appropriate when a movant untimely files
because of extraordinary circumstances that are both beyond his control and unavoidable
even with diligence.”)
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CONCLUSION
For the foregoing reasons, the court is of the opinion that respondents’ Motion to
Dismiss Eugene Clemons’s Untimely-filed Petition for Writ of Habeas Corpus, (doc. 25),
will be granted in part and denied in part. The court finds Ground I of Clemons’s § 2254
Habeas Petition, alleging “Mr. Clemons is mentally retarded and cannot be executed under
the United States Supreme Court decision in Atkins v. Virginia,” (doc. 1, subsection C.I., ¶¶
27-41, at pp. 27-30), is timely filed and, therefore, respondents’ Motion to Dismiss will be
denied as to this ground. However, all other claims set forth in the habeas petition, (see doc.
1, subsections C.II.-XXXII), are untimely and the Petition will be denied as to these grounds.
An Order granting in part and denying in part respondents’ Motion to Dismiss Eugene
Clemons’s Untimely-filed Petition for Writ of Habeas Corpus, (doc. 25), will be entered
contemporaneously with this Memorandum Opinion.
DONE this 17th day of March, 2015.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

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