Jett v. Daniels et al

Filing 25

MEMORANDUM OPINION. Signed by Judge Karon O Bowdre on 6/28/12. (ASL)

FILED
2012 Jun-28 PM 04:07
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
XAVIER JETT,
Petitioner,
V.
WARDEN L. DANIELS, et al.,
Respondents.

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2:11-cv-2117-KOB-RRA

MEMORANDUM OPINION
The petitioner filed a habeas corpus petition on June 16, 2011 (doc. 1), more than
eighteen months after the limitations period to file the petition expired on December 11, 2009
(doc. 23).1 The magistrate judge entered a Report and Recommendation to dismiss the habeas

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On September 12, 2008, the Alabama Supreme Court denied the petitioner’s writ of certiorari
and issued a certificate of judgement. The petitioner’s conviction became final on December 11, 2008,
when the ninety-day period for filing a petition for certiorari to the United States Supreme Court expired
(doc. 23). The AEDPA provides a one-year statute of limitations period to file a federal habeas petition.
28 U.S.C. § 2244. So, the petitioner had until December 11, 2009 to timely file his habeas petition.
The statute of limitations for a federal habeas petition stops running when a petitioner files a
state post-conviction petition on time. San Martin v. McNeil, 633 F.3d 1257, 1266 (11th Cir. 2011)
(emphasis added). The petitioner filed a Rule 32 petition in the Circuit Court of Jefferson County on
October 5, 2010, but the trial court denied the petition on July 5, 2011, finding that it was filed untimely.
The petitioner’s appeal of the denial of his Rule 32 petition is currently pending before the Alabama
Court of Criminal Appeals (doc. 23).
If the petitioner had filed a timely Rule 32 petition before December 11, 2009, the time spent
litigating his properly filed state collateral attack would not count toward the one-year limitations period
for filing his federal habeas petition. See 28 U.S.C. § 2244 (d). However, the petitioner did not file a
Rule 32 petition until almost ten months after the statute of limitations expired for filing his federal
habeas petition. Therefore, statutory tolling does not apply in the present case. See Chavez v. Sec’y
Florida Dep’t of Corrs., 647 F.3d 1057, 1062 n.4 (11th Cir. 2011) (quoting Webster v. Moore, 199 F.3d
1256, 1259 (11th Cir. 2000) ( “A state-court petition . . . that is filed following the expiration of the
[federal] limitations period cannot toll that period because there is no period remaining to be tolled.”).

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corpus petition as time barred by the one-year statute of limitations (doc. 23).2 The petitioner
filed objections to the magistrate judge’s report and recommendation, arguing that this court
should equitably toll the limitations period because his attorneys failed to file a state Rule 32
petition on time and failed to inform the petitioner of the statute of limitations for filing a federal
habeas petition (doc. 24).3
Having carefully reviewed and considered de novo all materials in the court file,
including the magistrate judge’s report and recommendation and the petitioner’s objections, the
court finds that the magistrate judge’s report is due to be ADOPTED and ACCEPTS his
recommendation. The court finds that no adequate grounds for equitable tolling exist and that
the habeas petition is due to be DISMISSED as barred by the statute of limitations.
I. Equitable Tolling
Equitable tolling applies only if the petitioner shows “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented
timely filing.” San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011) (quoting Holland v.
Florida, 130 S. Ct. 2549, 2562 (2010)) (emphasis added). Under the first requirement of
equitable tolling, the petitioner must pursue his rights with “reasonable diligence” rather than

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In his Report, the magistrate judge denied the petitioner’s “Motion to Dismiss without
Prejudice” filed on February 7, 2012, requesting “time to exhaust state remedies” (doc. 22). This court
agrees with the magistrate judge’s DENIAL of the motion. Dismissing his petition without prejudice
would serve no purpose, because the petitioner’s pursuit of state remedies would not change the fact that
his federal habeas petition is time-barred.
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In his objections, the petitioner claims that his mother, Ms. Judy Jett, paid attorney John C.
Robbins $3,045.00 on January 30, 2009 to file a Rule 32 petition. However, on August 3, 2009, Attorney
Robbins refunded the money. Petitioner claims that on August 10, 2009, Aquanita Giddens, his
common-law wife, retained Attorney Kittren Jay Walker to file a motion for a new hearing and/or a Rule
32 petition (docs. 11-5, 22).

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“maximum feasible diligence.” Holland, 130 S. Ct. at 2565. Furthermore, under the second
requirement, the petitioner must show that an extraordinary circumstance caused the petitioner to
file the petition late. San Martin, 633 F.3d at 1267. Under the equitable tolling doctrine, the
petitioner has the burden of proving that the circumstances warrant application of the doctrine.
Id. at 1268 (citing Drew v. Dept. of Corrects., 297 F.3d 1278, 1286 (11th Cir. 2002)).
A. Reasonable Diligence
The basis for the petitioner’s claim for equitable tolling hinges on the inaction of the two
attorneys he hired to file his Rule 32 petition. However, in applying the reasonable diligence
standard, the court should focus on “the petitioner’s own actions in the face of his attorney’s
inaction.” See George v. Dept. of Corrects, 438 Fed. Appx. 751, 753 (11th Cir. 2011) (citing
Holland, 130 S. Ct. at 2565) (emphasis added). In Holland, the Supreme Court, focusing on the
petitioner’s efforts, concluded that the petitioner had met the reasonable diligence standard
because he “wrote his attorney numerous letters seeking crucial information and providing
direction,” and “repeatedly contacted the state courts, their clerks, and the Florida State Bar
Association in an effort to have [the attorney] removed from the case.” Holland, 130 S. Ct. at
2565. Moreover, the court in Holland noted that the petitioner prepared his own habeas petition
pro se and filed it the “very day” that the petitioner discovered that the statute of limitations had
expired. Id.
The Eleventh Circuit applied the Holland reasonable diligence standard in two cases
involving alleged attorney misconduct and found that both petitioners failed to exercise
reasonable diligence and were not entitled to equitable tolling. See Chavez v. Sec. Florida Dept.
of Corrects., 647 F.3d 1057, 1071-72 (11th Cir. 2011); George, 438 Fed. Appx. at 753. In
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Chavez, the petitioner failed to exercise reasonable diligence because he presented no evidence of
attempting to contact the state court about his claim or urging his attorney to file post-conviction
relief sooner. Chavez, 647 F. 3d at 1071-72. The petitioner in George failed to meet the
reasonable diligence standard merely by hiring a post-conviction attorney. The Eleventh Circuit
in George noted that “nothing in Holland suggests that a petitioner may establish reasonable
diligence merely by retaining an attorney.” Id. at 753. In George, the petitioner gave no
indication that he “diligently inquired of his attorney concerning the filing of the post-conviction
motion or the effect that a later filing would have on a federal habeas corpus petition” and, thus,
was not entitled to equitable tolling. George, 438 Fed. Appx. at 753 (internal quotations
omitted).
The instant case is nothing like Holland and much more like Chavez and George. The
actions of the petitioner in Holland to pursue his rights diligently differ greatly from the
petitioner’s inaction in this case. Here, the petitioner argues that the two attorneys he hired to file
a Rule 32 petition on his behalf failed to follow through with the filings, resulting in the
petitioner preparing and filing a pro se Rule 32 petition. The petitioner also claims that neither of
his attorneys advised him of the statute of limitations for filing a federal habeas petition.
However, he presents no claim that he specifically pursued the filing of a federal habeas petition
with either attorney; he simply claimed that he hired the attorneys to “prepare and file a Rule 32
post-conviction petition and to represent [him] at any proceedings concerning said petition” and
“to file a motion for a new hearing.” (doc. 24). The petitioner has offered nothing to indicate that
he ever contacted his own attorneys, any court official, the Alabama State Bar or anyone at any
time to inquire about a federal habeas petition or the filing deadline. In his objections (doc. 22)
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and Rule 32 petition (doc. 11-5), the petitioner makes no claim that he ever pursued contacting
his two attorneys about anything after he initially retained them. He presented no letters and
made no mention in any filing about his attempting to contact the very attorneys he hired to
represent him.4 In contrast, the petitioner in Holland exercised reasonable diligence by writing
the Florida Bar, the court, and his attorney multiple times inquiring about the status of his case
and the federal habeas petition. Holland, 130 S. Ct. at 2565.
As in Chavez and George, the petitioner in the present case did nothing more than hire
two attorneys to file a Rule 32 petition. The petitioner cannot establish reasonable diligence
merely by retaining counsel and then waiting over eighteen months after the habeas deadline to
file his pro se petition. The petitioner in this case has failed to show any diligence, much less
reasonable diligence.
Because the petitioner has the burden of proving both reasonable diligence and an
extraordinary circumstance, equitable tolling is not warranted on the petitioner’s failure to show
reasonable diligence alone. Although a discussion of whether the petitioner has shown an
extraordinary circumstance would not change the finding that equitable tolling is not warranted,
the court will address the issue.
B. Extraordinary Circumstances
The petitioner argues that this court should equitably toll the limitations period due to

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The court notes that the magistrate judge provided every opportunity for the petitioner to
present such information. On September 27, 2011, the magistrate judge ordered the petitioner to show
cause why the petition should not be dismissed as time-barred (doc. 13). Although the magistrate judge
granted the petitioner seven extensions of time to file a response to the show cause order, the petitioner
never specifically responded to the order. The petitioner’s first mention of equitable tolling for his
federal habeas petition was in his objections to the magistrate judge’s Report and Recommendation
(docs. 23, 24).

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extraordinary circumstances beyond his control: that the two attorneys he hired to file his Rule 32
petition failed to do so and that neither attorney informed him of the statute of limitations for
filing a federal habeas petition. In Holland, the Supreme Court determined that equitable tolling
may apply under an extraordinary circumstance when the conduct of the petitioner’s attorney
amounts to more than “garden variety or excusable neglect.” Holland, 130 S. Ct. at 2564. The
Court analyzed how Holland’s attorney failed to file the habeas corpus petition on time and failed
to determine the date on which the statute of limitations expired. The Court determined that
these two instances alone would probably amount to only simple negligence, instead of an
extraordinary circumstance as required for equitable tolling. Id.
However, the Court in Holland further considered how the attorney’s misconduct
exceeded simple attorney negligence. Specifically, the attorney failed to file the petitioner’s
habeas corpus petition in a timely manner, despite the petitioner’s numerous letters to his
attorney emphasizing the importance of doing so. The attorney in Holland failed to conduct legal
research to determine the applicable statute of limitations; failed to inform the petitioner about
the status of his case; and neglected to communicate with the petitioner over a period of several
years, despite the petitioners pleas with his attorney to respond to his numerous letters. Id.
(emphasis added). Essentially, the petitioner alleged that his attorney abandoned him. Id. at
1268. As a result, the attorney’s conduct created an extraordinary circumstance that prevented
the petitioner from filing his habeas corpus petition within the one-year statute of limitations. Id.
The Eleventh Circuit, applying the Supreme Court’s ruling in Holland, recently held that
an attorney’s failure to file a state post-conviction correctly and on time did not amount to serious
attorney misconduct that would constitute an “extraordinary circumstance” under the equitable
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tolling doctrine. Chavez, 647 F.3d at 1071. In Chavez, the petitioner’s attorney did not file the
state post-conviction “soon enough to permit the federal habeas petition to be filed on time.” Id.
The alleged attorney misconduct of failing to file the Rule 32 petition to toll the statute of
limitations for a federal habeas petition “does no more to establish serious attorney misconduct
of the kind Holland requires than the simple statement that counsel did not file in promptly
enough.” Id. The court determined that such conduct, without more, only amounted to a “garden
variety claim” of attorney misconduct and did not warrant equitable tolling. Id.
This court finds that the attorneys’ conduct in the present case does not amount to the
level of misconduct in Holland. In the instant case, the petitioner alleges an extraordinary
circumstance based on his attorneys’ failures to file timely Rule 32 petitions and inform him of
the federal habeas limitations period. Unlike the petitioner in Holland, the petitioner in this case
has presented nothing to show he hounded his attorneys repeatedly to file either a Rule 32 or a
federal habeas petition, despite their failure to act on his behalf. As in Chavez, the attorneys’
misconduct in the present case only amounts to a “garden variety claim” of misconduct. The facts
alone that the attorneys failed to file a timely Rule 32 petition and did not advise him of his
federal habeas rights do not result in an extraordinary circumstance that prevented the petitioner
from filing his federal habeas petition within the statute of limitations. Therefore, the petitioner
is not entitled to equitable tolling.
The petitioner has failed to meet his burden of proving circumstances that would justify
application of the equitable tolling doctrine. Because the petitioner failed to file his habeas
petition within the one-year statute of limitations period, this court finds that the petitioner’s
habeas petition is due to be denied.
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II. CONCLUSION
For all of the foregoing reasons, the court finds that the magistrate judge’s report is due to
be ADOPTED and ACCEPTS his recommendation. The court finds that the circumstances of
this case do not warrant application of the equitable tolling doctrine. Therefore, the habeas
petition is due to be DISMISSED as barred by the statute of limitations. The court will enter a
separate, final order.
DONE and ORDERED this 28th day of June, 2012.

____________________________________
KARON OWEN BOWDRE
UNITED STATES DISTRICT JUDGE

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