Woods v. Carter et al

Filing 16

MEMORANDUM OPINION Signed by Judge Annemarie Carney Axon on 8/27/18. (SAC )

FILED
2018 Aug-27 PM 05:23
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
TONY RANDALL WOODS,
Petitioner,
v.
WARDEN DERICK CARTER, et al.,
Respondents.

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Case No.: 3:17-cv-01103-ACA-JHE

MEMORANDUM OPINION
On June 29, 2018, the magistrate judge entered a report and recommendation,
(“R&R”), recommending that the petition for writ of habeas corpus be dismissed with
prejudice as time-barred. (Doc. 12). Petitioner Tony Randall Woods (“Woods”) has
timely objected to the R&R. (Doc. 15). The court has considered the entire file in this
action, together with the report and recommendation, and has reached an independent
conclusion that the report and recommendation is due to be adopted and approved.
Woods does not contest that his petition was not filed within the one-year statute
of limitations established by 28 U.S.C. § 2244(d)(2). Instead, the thrust of his objection
is that his attorney effectively abandoned him in filing his Rule 32 petition after the
habeas limitations period expired, so he ought to be entitled to equitable tolling of the
limitations period. (See doc. 15). Woods contends the magistrate judge “mentioned, but
failed to rule on counsel’s abandonment.” (Id. at 3).
As the magistrate judge stated, equitable tolling is an extraordinary remedy which
“is typically applied sparingly.” Arthur v. Allen, 452 F.3d 1234, 1252 (11th Cir. 2006).

To be eligible for equitable tolling, a petitioner must demonstrate both that (1) he has
been diligent in his efforts to timely file a habeas petition and (2) extraordinary and
unavoidable circumstances beyond the petitioner’s control prevented him from filing a
timely petition.

Id.

Abandonment by an attorney can establish extraordinary

circumstances, but “‘a garden variety claim’ of attorney negligence” does not warrant
equitable tolling. Holland v. Fla., 560 U.S. 631, 651 (2010).
The magistrate judge correctly determined that Woods has not demonstrated his
diligence or extraordinary circumstances. Woods filed his Rule 32 petition after the oneyear habeas limitations period expired, which means that the habeas limitations period
was not statutorily tolled during the Rule 32 petition’s pendency. Woods states that this
was because his retained counsel abandoned him by failing to timely file the Rule 32
petition. Woods indicates that he sent several letters to his counsel inquiring about the
status of the Rule 32 petition, and his counsel assured him that “all had been taken care of
and that there was no need to worry.” (Doc. 10 at 2). However, as the magistrate judge
found, Woods did not include any specific information in his petition or traverse to
inform the court when he wrote those letters. (Doc. 12 at 4). Because Woods bears the
burden to establish the elements necessary for equitable tolling, Holland, 560 U.S. at 655,
it follows that he must establish that his attorney’s conduct was more than simply
negligent, but actually constituted abandonment. Woods has stated only that he made
inquiries to his counsel, which could have occurred at any point during the ten months
that elapsed between Woods hiring counsel and the expiration of the habeas limitations
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period. Because Woods’s petition does not contain facts to support abandonment by his
attorney, the magistrate judge did not err in concluding Woods had not established
extraordinary circumstances justifying equitable tolling.
Additionally, as the magistrate judge noted, Woods has fallen short in showing the
diligence necessary for equitable tolling. Beyond sending letters to his counsel, Woods
does not allege he did anything to determine that his Rule 32 petition was timely filed
such that it would toll the habeas limitations period. Nor does Woods explain in his
petition or traverse why he waited eight months after the certificate of judgment issued on
his Rule 32 petition to file this habeas petition. Woods should have known at the time the
certificate of judgment issued that the limitations period had either expired or was about
to expire, and he does not detail any steps he took to ensure that his habeas petition was
timely (or at least less untimely) filed. Regardless of whether Woods’s Rule 32 counsel’s
conduct creates the extraordinary circumstances to support equitable tolling, Woods’s
failure to account for his actions during this eight-month period forecloses a finding that
he was diligent in pursuing his rights. Because he has does not address this at all in his
objections, Woods has failed to show that the magistrate erred in determining Woods is
ineligible for equitable tolling due to his lack of demonstrated diligence.
Accordingly, the court hereby adopts and approves the findings and
recommendation of the magistrate judge as the findings and conclusions of this court.
The petition for writ of habeas corpus is due to be DISMISSED WITH PREJUDICE. A
separate Order will be entered.
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This Court may issue a certificate of appealability “only if the applicant has a
made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 2253(c)(2).
To make such a showing, a “petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong,”
Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that “the issues presented were adequate
to deserve encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal quotations omitted). This Court finds Petitioner’s claims do not satisfy
either standard.
DONE and ORDERED this August 27, 2018.

_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE

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