Miller v. Secretary, Florida Department of Corrections

Filing 72

ORDER denying 69 Motion for Protective Order and to Redact 67 Transcript, with instructions to the Clerk to maintain Petitioner's Exhibits 6, 7, and 8 under seal; dismissing with prejudice 15 the Petition and the case, with instructions to the Clerk; denying a certificate of appealability, with instructions to the Clerk. Signed by Judge Brian J. Davis on 11/17/2021. (LDO)

Case 3:17-cv-00932-BJD-JBT Document 72 Filed 11/18/21 Page 1 of 67 PageID 5160

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

DAVID MILLER, JR,
Petitioner,
vs.

Case No. 3:17-cv-932-BJD-JBT

SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS, et al.,
Respondents.

ORDER
I.

Status

Petitioner David Miller, Jr., a Florida prisoner convicted and sentenced
to death, filed a Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254
(Petition) (Doc. 15) and a Memorandum of Law (Memorandum) (Doc. 24). 1
Respondents, in their Response Brief to Petition for Writ of Habeas Corpus
(Response) (Doc. 29), submit that the Petition is untimely filed and Petitioner
must argue for equitable tolling, requiring that he demonstrate both that he

1

Generally, the Court references the page number assigned by the electronic filing

system, unless otherwise indicated.

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diligently pursued his federal habeas rights and extraordinary circumstances
prevented his timely filing of a federal habeas petition.2 Response at 17-30.
In Petitioner’s Reply in Support of 28 U.S.C. § 2254 Petition (Reply) (Doc. 33),
Petitioner claims equitable tolling is warranted. Reply at 5-13. The Court
conducted a limited evidentiary hearing on October 21, 2021.3
As acknowledged by the parties, the Petition is untimely filed, filed well
beyond the Antiterrorism and Effective Death Penalty Act (AEDPA) one-year
statute of limitations. Response at 10; Petition at 7. See Order (Doc. 35) for
the calculation of the relevant one-year period.4

The Court refers to the exhibits in the Appendix (Doc. 32) as “Ex.” The Court will, where
applicable, refer to the Bates Stamp page numbers at the bottom of each page. Otherwise
the Court will refer to the page number on the document itself.
2

The Court refers to the evidentiary hearing transcript (Doc. 67) as “EH.” The Court will
reference the page number found in the upper right-hand corner of each page of the
transcript.
3

At the evidentiary hearing Respondents re-raised their contention that the 90-day period
should be counted from August 31, 2000, resulting in their calculated date of November 29,
2000 as being the date the judgment and sentence became final (“AEDPA statute of
limitations starts as the judgment and sentence became final when the 90 days for seeking
certiorari review in the United States Supreme Court expired[.]”). See Response at 12
(Statute of Limitations Timing). Respondents said, “we’re probably disagreeing about the
days remaining[,]” and “I’ve got the petition due June the 15th, 2006[.]” EH at 21.
Respondents’ calculation is incorrect. The rules of the Supreme Court and the related
Eleventh Circuit law provide: “if a movant does not timely file his petition, his conviction
becomes final 90 days after the appellate court enters judgment on the appeal ‘or, if a motion
for rehearing is timely filed, within 90 days of the appellate court's denial of that motion.’”
Warmus v. United States, 253 F. App’x 2, 4–5 (11th Cir. 2007) (per curiam) (quoting Close v.
United States, 336 F.3d 1283, 1284–85 (11th Cir.2003) (quoting Clay v. United States, 537
U.S. 522, 525 (2003)) (citing Sup. Ct. R. 13.2). See also Wilmore v. United States, No. 1811653-J, 2018 WL 5295886, at *2 (11th Cir. 2018) (not reported in Fed. Rptr.) (noting the
4

2

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II.

Petition, Memorandum, & Response

Petitioner did not file his federal Petition (Doc. 15) until Wednesday,
January 30, 2019, well past the expiration of the one-year limitation period.5
The Petition filed on January 30, 2019 is untimely and due to be dismissed
unless Petitioner can establish equitable tolling of the statute of limitations is
warranted.

Petitioner submits that equitable tolling “is pertinent here.”

Petition at 9. He contends his mental health issues impacted his ability to
communicate with counsel, making effective communication virtually
impossible. Id. at 10-11. He argues that courts have widely recognized that
equitable tolling applies when a defendant suffers some form of mental
incapacity (citing Bolarinwa v. Williams, 593 F.3d 226, 231 (2d Cir. 2010);

date of denial of rehearing and stating the statute of limitations for filing a section 2255
motion began to run 90 days later, when the conviction became final), cert. denied, 139 S. Ct.
833 (2019); Cullers v. Sec’y, Fla. Dep’t of Corr., No. 3:09-cv-664-J-34MCR, 2010 WL 2103444,
at *2 (M.D. Fla. May 25, 2010) (not reported in F.Supp.2d) (finding the petitioner’s statecourt conviction became final 90 days from when the appellate court denied the motion for
rehearing). Respondents do not contend the motion for rehearing was untimely filed. This
Court previously found Petitioner’s conviction became final on January 22, 2001 (90 days
after October 24, 2000, the date the Florida Supreme Court denied rehearing), not November
29, 2000, the date relied upon by Respondents. Of note, Respondents calculate that the
tolling of the statute of limitations ended on April 13, 2006 when the mandate issued upon
the Florida Supreme Court’s affirmance of the denial of an amended Rule 3.851 motion, then
began to run and expired on June 15, 2006. Response at 12 (Statute of Limitations Timing).
This Court held, after the mandate issued on April 13, 2006, the limitation period began to
run and expired 112 days later, on Thursday, August 3, 2006. See Order (Doc. 35) at 8.
Nothing presented at the evidentiary hearing or otherwise convinces the Court that it has
made a miscalculation or erred in its Order (Doc. 35).
5

Petitioner is represented by counsel.

3

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Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001), overruled in part on other
grounds, Carey v. Saffold, 536 U.S. 214 (2002); Fisher v. Johnson, 174 F.3d 710
(5th Cir. 1999), cert. denied, 531 U.S. 1164 (2001); Laws v. Lamarque, 351 F.3d
919, 923 (9th Cir. 2013); and Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir.
2009) (per curiam). Petition at 11.
Petitioner also relies on a contention that he should be entitled to
equitable tolling based on serious deficiencies in state post-conviction
representation.

Id.

Although not fleshed out in the Petition, he suggests

there may be some sort of abandonment or attorney misconduct that may be
uncovered which would “qualify as a basis for equitable tolling.” Id. at 11.
In his Memorandum, Petitioner claims he suffers from “severe
schizophrenia and other mental health conditions that rendered him
incompetent and unable to communicate with his attorneys or make rational
decisions regarding his legal rights.”

Memorandum at 14.

He contends

mental illness can form the basis for equitable tolling, referencing cases he
mentioned in the Petition and adding McSwain v. Davis, 287 F. App’x 450, 456
(6th Cir. 2008), cert. denied, 557 U.S. 919 (2009), for additional support.
Memorandum at 14. He also claims counsel inexplicably failed to file a timely
federal habeas petition due to egregious failures on counsel’s part to do any
work on Petitioner’s case after the Florida Supreme Court affirmed the denial
4

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of post-conviction relief. Id. at 14-15. See Reply at 9-10 (“Miller’s AEDPA
limitations deadline lapsed in 2006, under the watch of his state-appointed
counsel.”).
In their Response at 25, Respondents contend Robert Norgard, Esquire,
Petitioner’s post-conviction counsel, “intentionally missed the federal habeas
deadline in this case and others in order to avoid his clients’ inclusion on the
list of defendants eligible for a death warrant.” Respondents explain that, in
Florida, before the Governor signs a warrant of execution, a defendant has to
undergo executive clemency, and, generally, this review does not take place
until after a federal petition for writ of habeas corpus has been denied in the
federal district court and relief has been denied by the Eleventh Circuit Court
of Appeals. Id.
Petitioner submits, his “incompetence justifies equitable tolling[,]” Reply
at 7, relying on previously cited cases and citing Ata v. Scutt, 662 F.3d 736,
741 (6th Cir. 2011); Calderon v. United States District Court, 163 F.3d 530,
541 (9th Cir. 1998), abrogated on other grounds, Woodford v. Garceau, 538 U.S.
202 (2003), cert. denied, 526 U.S. 1060 (1999); Ryan v. Gonzales, 568 U.S. 57,
67-68 (2013); Smith v. Kelly, 301 F. App’x 375, 378 (5th Cir. 2008) (per curiam);
and Trapp v. Spencer, 479 F.3d 53, 62 (1st Cir. 2007).

Reply at 7-8. He

contends his mental illness satisfies both the diligence and extraordinary
5

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circumstances prongs.

Id. at 9.

Alternatively, Petitioner says his

incompetence coupled with the “apparent abandonment by prior counsel”
justifies equitable tolling and requires fact-finding by the Court, citing Schmid
v. McCauley, 825 F.3d 348, 350 (7th Cir. 2016). Reply at 9. See Downs v.
McNeil, 520 F.3d 1311, 1325 (11th Cir. 2008) (finding need for evidentiary
hearing); Ata, 662 F.3d at 741 (same).
The Court, in its Order (Doc. 35), found numerous questions were raised
by Respondents’ contention that Mr. Norgard intentionally missed the federal
habeas deadline, including but not limited to: (1) did Mr. Norgard intentionally
miss the federal habeas deadline; (2) if Mr. Norgard intentionally missed the
deadline, did Mr. Norgard discuss his strategy with Petitioner and did
Petitioner agree with the strategy to attempt to delay the scheduling of his
execution date by failing to timely file a federal petition or agree to some other
strategy not yet revealed; (3) did Mr. Norgard negligently miss the deadline;
(4) did Mr. Norgard’s conduct amount to abandonment of the attorney-client
relationship; (5) was there severance of the agency relationship; (6) did Mr.
Norgard purposely act adversely to Petitioner’s interests by acting or failing to
act for the purpose of advancing Mr. Norgard’s own interests or those of a third
party; and (7) did Mr. Norgard take actions that were contrary to Petitioner’s
instructions and adverse to his interests. Order (Doc. 35 at 10-11).
6

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Since Mr. Norgard represented Petitioner on the appeal of the denial of
the Rule 3.851 motion, and since the federal one-year limitation period expired
on August 3, 2006, under Mr. Norgard’s watch, the Court scheduled an
evidentiary hearing to address the conduct of Mr. Norgard and the related
conduct of Petitioner. Order (Doc. 47). The Court expressed its concern as to
whether Petitioner was informed of Mr. Norgard’s strategy (if one existed) and
agreed with an intentional strategy of not filing a timely federal petition or
acquiesced in counsel’s decision or some similar strategy as yet unrevealed.
Order (Doc. 35 at 11-12).
The Court will first explore the cases cited by Petitioner in support of
his contention that his mental illness satisfies both the diligence and
extraordinary circumstances prongs. Petitioner relies on Bolarinwa, 593 F.3d
at 231, which held, under the appropriate circumstances, mental illness can
justify equitable tolling of the AEDPA’s limitation period. The Second Circuit
opined that sister circuits have held the same, citing McSwain, Laws, Nara,
and Fisher. Respondents counter Petitioner’s argument, pointing out that in
Bolarinwa, the Second Circuit remanded the case to allow the petitioner to
present evidence in support of her contention.

Response at 21.

Of

importance, on remand, the United States Magistrate Judge reviewed the
medical records concerning the petitioner’s mental health care and treatment,
7

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found that she undeniably suffers from a mental illness, but also found that
she functioned, for the most part, in prison population, and “failed to carry her
burden of establishing a basis to invoke equitable tolling” in order to
resuscitate her untimely petition.

Bolarinwa v. Kaplan, No. 9:07-CV-1113

(LEK-DEP), 2012 WL 2394819, at *1 (N.D.N.Y. May 8, 2012) (not reported in
F.Supp.2d), report and recommendation adopted by 2012 WL 2402889
(N.D.N.Y. June 25, 2012).
Notably, in Bolarinwa, the petitioner had been adjudicated to be an
incapacitated person, received treatment, was then found rehabilitated and fit
to proceed to trial.

Id.

The medical records showed she suffered from

episodes of depression, anxiety, and psychosis.

Id. at *7.

The Court

determined an evidentiary hearing was unnecessary in light of the
comprehensive nature of the records received by the court concerning the
petitioner’s mental health treatment, the extreme length of time involved, and
the fact that the record fails to reflect evidence to support the claim for
equitable tolling.

Id. at *9 n.6.

Ultimately, the court found she was not

subjected to extraordinary circumstances that prevented her, despite due
diligence, from filing a habeas petition.

Id. at *10.

In adopting the

Magistrate Judge’s report and recommendation, the District Judge found the
petitioner had been pursuing her legal rights by filing and researching other
8

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legal claims before filing her federal petition and she was engaged in various
legal endeavors.

Bolarinwa, 2012 WL 2402889, at *3.

The Court found

neither an exceptional circumstance nor due diligence. Id. at *4.
In Nara, 264 F.3d at 320, the Third Circuit acknowledged that mental
incompetence is not a per se reason for tolling a statute of limitations.
Instead, the court found that there must be a showing that mental
incompetence prevented the petitioner from asserting his rights.

Id.

The

court concluded that because the habeas petition was filed pro se and the
petitioner had exhibited periods of mental incompetency, an evidentiary
hearing was warranted.

The court also found troubling allegations of

abandonment by previous counsel, leading the court to find an evidentiary
hearing in order to determine whether extraordinary circumstances would
justify equitable tolling. Id. See Wallace v. Mahanoy, 2 F.4th 133, 145 (3rd
Cir. 2021) (asking whether it was impossible for the petitioner to pursue postconviction remedies during the entire relevant time).
Similarly, the Sixth Circuit found mental incompetence is not a per se
reason to toll, but it may warrant equitable tolling. McSwain, 287 F. App’x at
456.

Significantly, in McSwain, although the court found the petitioner

suffered from a mental illness, the court still found no evidence to support a
causal connection between her mental illness and her ability to file a timely
9

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petition, noting that she was able to pursue her state court remedies
notwithstanding her mental illness. Id. at 457. Of import, the court noted
that the petitioner was represented by counsel in state court and at the time
she filed her federal habeas petition. Id. In Ata v. Scutt, 662 F.3d 736, 74142 (6th Cir. 2011), the Sixth Circuit, finding the reasoning of McSwain
persuasive, held a petitioner’s mental incompetence, which prevents the timely
filing of a petition, constitutes an extraordinary circumstance that may
warrant equitably tolling.
In Fisher, 174 F.3d at 711, the petitioner filed a pro se habeas petition
in the federal court. He asked for equitable tolling for a period of seventeen
days he spent in a psychiatric ward, confined, medicated, separated from his
glasses and legally blind as a result, and denied any access to the courts. Id.
at 715.

Although recognizing: “the possibility that mental incompetency

might support equitable tolling[,]” the court declined to require tolling under
the circumstances. Id. at 716 (emphasis added). See Smith, 301 F. App’x at
378 (affirming the denial of equitable tolling, noting conclusory assertions of
mental illness combined with a lack of due diligence).
The Ninth Circuit remanded a case to the district court to order
discovery, expansion of the record, or an evidentiary hearing as is necessary to
determine if the period should be equitably tolled by virtue of mental
10

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incompetence. Laws, 351 F.3d at 924-95. The petitioner had proceeded pro
se, with the help of a jailhouse lawyer, in filing his federal and state petitions.
Id. at 922. The court found “a pro se inmate’s actual mental incompetence
may be at least as much of an external bar to his meeting AEDPA’s strict
deadlines as is a represented capital inmate’s inability to rationally
communicate a bar to his receiving effective representation.” Id. at 923. See
Calderon, 163 F.3d at 541 (finding mental incompetency justifies equitable
tolling and noting the statutory right to counsel contemplates effective
communication between lawyer and client),
Although Petitioner references Trapp, in Holmes v. Spencer, 822 F.3d
609, 611 n.1 (1st Cir. 2016), the First Circuit noted that Trapp had been
overtaken by Holland v. Fla., 560 U.S. 631, 649 (2010) (professional misconduct
could

amount

to

egregious

behavior

and

create

an

extraordinary

circumstance), as underscored by Menominee Indian Tribe of Wis. v. United
States, 577 U.S. 250, 257 (2016) (the diligence prong covers those affairs within
the litigant’s control, “the extraordinary-circumstances prong, by contrast, is
meant to cover matters outside its control”). Thus, a petitioner must show
that an extraordinary circumstance stood in his way; therefore, the second
prong is met, “only where the circumstances that caused a litigant’s delay are
both extraordinary and beyond its control.” Id. at 257 (footnote omitted).
11

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Petitioner did not mention a significant, post Holland First Circuit
decision, Riva v. Ficco, 615 F.3d 35, 40 (1st Cir. 2010), which held, “mental
illness can constitute an extraordinary circumstance, which may prevent a
habeas petitioner from understanding and acting upon his legal rights and
thereby equitably toll the AEDPA limitations period” but it does not per se toll
the limitations period. Indeed, the court concluded that a petitioner must
show “some causal link between a petitioner’s mental illness and his ability
seasonably to file for habeas relief.”

Id.

In short, the court found the

causation requirement would be satisfied if a petitioner shows that, during the
relevant time frame, he both suffered from a mental illness or impairment that
severely impaired his ability “either effectively to pursue legal relief to his own
behoof or, if represented, effectively to assist and communicate with counsel.”
Id.
In Riva, the record confirmed “debilitating mental illness,” with the
petitioner being committed to a facility for seventeen years, suffering from
paranoid schizophrenia and exhibiting bizarre delusions of a persecutory
nature, paranoid ideation, auditory hallucinations, and somatic terrors. Id.
at 41.

The petitioner suffered from an extremely delusional and bizarre

system accompanied by violent paranoid ideation.

Id.

Even with

medication, the petitioner’s psychosis continued, until he was finally placed on
12

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a new medication. Id. at 42. Although at one point counsel was hired by the
petitioner’s father, counsel did not communicate with petitioner and filed a
petition without petitioner’s consent.

Id.

at 43.

As such, the counseled

filing did not enjoy “the petitioner’s effective participation.” Id. The court
noted, the petitioner’s obvious insanity at critical times discounted petitioner’s
pro se filings.

Id.

The First Circuit vacated and remanded for further

proceedings. Id. at 44.
Ultimately, the district court found that the petitioner “had not shown
that his mental illness prevented him from following through in litigation in a
sustained way.” Riva v. Ficco, 803 F.3d 77, 81 (1st Cir. 2015), cert. denied,
136 S. Ct. 1536 (2016). At times, Riva was not represented by counsel and
made missteps. Id. at 82. However, the court found the petitioner failed to
prove, “his illness prevented him from cooperating with counsel during that
time period” as he communicated with counsel and exhibited his engagement
in the litigation and his understanding of the proceedings. Id. Finally, the
district court found the record supported the conclusion that petitioner
cooperated with his counsel. Id. at 83. Thus, the First Circuit concluded the
district court did not err in finding the petitioner “failed to demonstrate that
his mental illness prevented him from cooperating with counsel.” Id.

13

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Petitioner referenced both Hunter and Gonzales in his pleadings and
briefs. In Hunter the petitioner was without counsel; in Gonzales, the United
States Supreme Court found no statutory right to competence.
III.

Equitable Tolling

The AEDPA is applicable to Petitioner’s case as his conviction became
final after April 24, 1996, the effective date of AEDPA. Smith v. Jones, 256
F.3d 1135, 1143 (11th Cir. 2001) (by its terms, the state of limitations provision
in AEDPA bars any petition filed more than a year after the conviction became
final at the conclusion of direct appeal, absent exceptions and qualified tolling
periods), cert. denied, 534 U.S. 1136 (2002). The AEDPA one-year limitation
period is subject to equitable tolling. Holland, 560 U.S. at 651-52.
Petitioner contends he can establish that equitable tolling of the statute
of limitations is warranted, claiming extraordinary circumstances beyond his
control. Petitioner carries the burden of persuasion. He must satisfy a twopronged test; he must demonstrate “(1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstances stood in his way and
prevented timely filing.”

Id. at 649 (quotation marks omitted).

See

Christmas v. Judd, No. 20-14431, 2021 WL 4860927, at *1 (11th Cir. Oct. 19,
2021) (per curiam) (not reported in Fed. Rptr.) (same). Petitioner contends
his mental illness satisfies both prongs, the diligence prong, and the
14

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extraordinary circumstances prong. Apparently, if the Court is not convinced
by this argument, Petitioner contends that his mental illness satisfies the
diligence prong and “apparent abandonment” of counsel or the serious
deficiencies

of

his

post-conviction

counsel

satisfy

the

extraordinary

circumstances prong.
Equitable tolling is an extraordinary remedy, only employed in “rare and
exceptional circumstances and typically applied sparingly.”

Cadet v. Fla.

Dep’t of Corr., 853 F.3d 1216, 1221 (11th Cir. 2017) (quotations and citation
omitted), cert. denied, 138 S. Ct. 1042 (2018). See Downs, 520 F.3d at 1318
(equitable tolling “is a remedy that must be used sparingly”).

This heavy

burden is not easily surmounted.
Concerning this Court’s review for equitable tolling purposes, any
failures of counsel that occurred after counsel missed the filing deadline are of
no consequence because they did not cause unseasonable filing or prohibit
timely filing. Ryder v. Sec’y, Dep’t of Corr., No. 8:09-CV-2019-T-27MAP, 2012
WL 12895353, at *4 (M.D. Fla. June 6, 2012) (not reported in F. Supp.). “To
obtain equitable tolling, . . . Petitioner must show extraordinary circumstances
and demonstrate that those circumstances caused him to miss the filing
deadline.” Id. (citations omitted). Following the expiration of the one-year

15

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limitation period, any failures of counsel did not prohibit Petitioner from timely
filing his federal habeas petition.
As such, this Court’s focus will be on a very precise period of time: that
period after the mandate issued on April 13, 2006 and the one-year limitation
period expiring 112 days later, on Thursday, August 3, 2006. To prevail on
his contention that he is entitled to equitable tolling, Petitioner must show
there is a causal connection between the alleged extraordinary circumstances
and the late filing of his federal petition.
In Hunter, 587 F.3d at 1309-1310, the Eleventh Circuit found the
petitioner presented evidence sufficient to raise a factual issue as to whether
a causal connection existed between the petitioner’s mental impairment and
his ability to file a timely petition, but the petitioner did not have an attorney
to assist him.

The Eleventh Circuit looked to its previous decision in

Lawrence v. Fla., 421 F.3d 1221, 1226-27 (11th Cir. 2005), in which the court
determined that the petitioner’s claim of long-term mental impairments
combined with a full-scale IQ of 81 were insufficient to justify equitable tolling
because they did not establish a causal connection between the alleged mental
incapacity and the ability to file a timely petition. Hunter, 421 F.3d at 1308.
The Eleventh Circuit, while noting that “mental impairment is not per se a
reason to toll a statute of limitations[,]” Hunter, 587 F.3d at 1308, concluded
16

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the petitioner had presented sufficient evidence to warrant further inquiry
based on record evidence of severe, irreversible mental retardation. Id. at
1309-10.
Similarly, in Rabette v. Sec’y, Dep’t of Corr., No. 5:14-cv-101, 2015 WL
6704418, at *4 - *5 (M.D. Fla. Nov. 2, 2015) (not reported in Fed. Supp.), the
petitioner complained of his mental incapacity and reliance upon prison law
clerks, but this Court found the petitioner’s attempt to shoehorn the facts of
his case to resemble those in Hunter unconvincing and insufficient to warrant
equitable tolling.
More recently, in O’Connor v. Inch, No. 17-60234-CV-COHN/REID, 2019
WL 11029408, at *2 (S.D. Fla. Sept. 24, 2019), the petitioner argued equitable
tolling was appropriate because he suffers from mental illness, he was
effectively abandoned by counsel, and he was deprived of personal property
and legal materials during transfers between facilities. In pertinent part, the
court held: “[m]ental impairment, without a showing of how such impairment
affects a petitioner's ability to file a timely petition, is insufficient reason to
equitably toll the limitations period under the AEDPA.”

Id. at *3 (citing

Lawrence (contention that individual suffered from mental illness all his life
is not sufficient reason to justify equitable tolling) and Hunter).

17

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The record demonstrates, in Petitioner’s case, he was not relying on his
own skills or that of prison law clerks or inmates to assist him in filing a federal
habeas petition.

Petitioner had experienced capital registry counsel:

Mr.

Robert Norgard. Mr. Norgard had extensive criminal law experience as both
an assistant public defender and in private practice. EH at 25-27. He had
extensive experience handling capital cases.

Id. at 26.

He also handled

federal death-penalty cases. Id. at 28. He had been involved in handling
post-conviction cases since approximately 1996. Id. Mr. Norgard confirmed
that as appointed registry counsel, an attorney under the registry contract is
obliged to handle subsequent litigation. Id. at 29.
Mr. Norgard received an appointment as registry co-counsel. Id. at 2930. He was well aware that he was responsible throughout all postconviction
capital proceedings, including federal habeas corpus proceedings. Id. at 29.
Although

Petitioner

had

been

represented

by

Capital

Collateral

Representatives North, the agency was disbanded and Heidi Brewer, who had
been representing Mr. Miller leading up to his post-conviction evidentiary
hearing, contacted Mr. Norgard to assist with the evidentiary hearing. Id. at
30-31. Mr. Norgard explained he was brought in because he had both postconviction and appellate experience. Id. at 31. Mr. Norgard filed a notice of
appearance that was filed with the clerk on October 6, 2003. Id. at 32. Ms.
18

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Brewer eventually withdrew, and Mr. Norgard took over the case. Id. Mr.
Norgard eventually withdrew in 2013 after a meeting on August 9, 2013, in
which Petitioner was “unequivocal in his request that I pursue him being a
death volunteer.”

Id. at 35.

Mr. Norgard explained that his law firm of

Norgard & Norgard was Petitioner’s sole representation from June 2004
through August 2013.6 Id. at 36.
Under oath, Mr. Norgard stated he did not file a federal habeas petition
on Petitioner’s behalf because, “Mr. Miller specifically did not authorize me to
file a federal habeas, and he indicated if I did, that he would seek to have it
dismissed and make the Court aware of his wish to be a death volunteer.” Id.
Mr. Norgard explained that mental health issues affected Mr. Miller
throughout most of his life, and there were extensive mental health records
from North Carolina, including evidence that Mr. Miller’s capacity to
appreciate criminality had been impaired at the time of the North Carolina
offense, and his mental illness “impacted on his prior criminal behavior.” Id.
at 37.
Petitioner was present for part of the state court evidentiary hearing.
Id. Mr. Norgard attested Petitioner was competent to proceed with the court

Mr. Norgard’s wife and legal partner, worked with Mr. Norgard and provided some legal
assistance.
6

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matters, even though he had mental health issues. Id. Mr. Norgard believed
Petitioner “would be competent to be executed under the legal standards
related to that.” Id. Mr. Norgard also felt Petitioner was competent to waive
matters that he could waive in his case. Id. at 38. Nevertheless, Mr. Norgard
felt that Petitioner’s desires to take certain actions, like volunteer for death
and waive his appeal, were because of his mental health issues. Id.
Although Mr. Norgard attested if Petitioner had insisted on becoming a
volunteer for death or in waiving the appeal of the denial of the Rule 3.851
motion, Mr. Norgard would have requested a mental health evaluation, he was
“very pessimistic about an expert finding him not to be competent to waive
those matters.” Id. Mr. Norgard explained that his opinion was based on the
low threshold of what is considered to be competent to appear at trial or to
waive matters. Id. He noted, a defendant can be a paranoid schizophrenic
but still be found competent to proceed to trial.

Id.

Although concerned

about Petitioner’s mental health, Mr. Norgard firmly believed Mr. Miller would
be found competent. Id. at 40.
Mr. Norgard conducted the state evidentiary hearing on November 4th
and November 5th of 2003 and did the examination of witnesses. Id. at 4041. Under the registry, Mr. Norgard was co-counsel for Petitioner. Id. at 41.
Mr. Norgard was aware of Petitioner’s significant mental health issues, id. at
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49, including that he had reported an auditory hallucination back on
September 6, 1983.

See Petitioner’s Exhibit Limited Evidentiary Hearing

October 21, 2021, 7 Petitioner’s Exhibit 6, Tab 3 at 121.

Mr. Norgard

reiterated, he felt Petitioner was competent, but at the same time, he felt that
if Petitioner did not have his mental health issues, he would not move towards
being a death volunteer. Id. at 60.
Mr. Norgard believed Petitioner met the competency factors to waive
rights. Id. at 61. Mr. Norgard elaborated:
I guess the simplest way of putting it, we have
somebody with a history of suicide and the fact that he
wanted to kill himself and had trouble living with his
mental illness doesn’t surprise me.
I mean, it’s almost like state-assisted suicide in
this case, and he’d certainly tried to do it on his own
before.
Id.

The Court will refer to these Exhibits as “Petitioner’s Exhibit” and also reference the
particular tab, if applicable. The Court will refer to the page numbers found on the lower
right-hand corner of the exhibits. Of note, Petitioner’s Exhibits 6, 7, and 8 are filed under
seal. See Order (Doc. 62). However, the Court finds it necessary to reference the content
of these exhibits in order to explain its decision as to whether Petitioner has satisfied the test
to qualify for equitable tolling. Of note, Petitioner’s mental disorder and the manifestations
of that disorder have already been extensively revealed through the Petition (Doc. 15), the
Appendix Record of State Proceedings (Doc. 32), and in published decisions, Miller v. State,
770 So. 2d 1144 (Fla. 2000) (per curiam) and Miller v. State, 926 So. 2d 1243 (2006) (per
curiam).
7

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With regard to specific conversations about filing a federal habeas
petition, Mr. Norgard related that the initial conversation concerning this topic
occurred at the state-court evidentiary hearing.

Id.

The court allowed

counsel to talk to Petitioner privately, and the issue was discussed. Id. at 62.
Mr. Norgard stated he kept track of when the federal petition would be due in
the summer of 2006.

Id.

The first day of the evidentiary hearing, the

discussion took place, and Petitioner agreed to “at least waive his appearance
at the evidentiary hearing and not pursue the other matters he had indicated
to us and waived his appearance and I believe he was taken back that same
day.” Id.
Of import, Mr. Norgard attested that he spoke to Mr. Miller after the
mandate issued on April 13, 2006, specifically through a phone call made on
April 26, 2006, to see if Mr. Miller had changed his mind about whether to file
a federal petition. 8

Id. at 85.

Mr. Norgard said he had also talked to

Petitioner previously, prior to the mandate being issued, asking that same
question, to confirm Petitioner had a continuing desire not to pursue his
federal remedies. Id.

Mr. Norgard testified that he believed the Florida Department of Corrections’ records were
inaccurate as they failed to show a number of phone calls counsel made to Petitioner noted
in Mr. Norgard’s office records, including the April 26, 2006 phone call.
8

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Mr. Norgard did not have any question as to Petitioner’s competency.
Id. at 86. Mr. Norgard stated he tried to get his client to submit himself to a
mental health examination, but he refused. Id. As far as being prepared to
file a federal petition, Mr. Norgard attested that he had identified the issues
and would have been prepared to move forward in a timely manner. Id. But,
“from the time of the evidentiary hearing through that last call, [Petitioner]
would not hear anything about any further appeals[.]” Id. Mr. Norgard said
Petitioner repeatedly talked about wanting to be a death volunteer, but after
speaking with Mr. Norgard on each occasion, Petitioner would, “at least be
equivocal and end the call.” Id. As for billing, Mr. Norgard explained that
anything he did in preparation for the federal habeas he would not have billed
to the state; therefore, he did not submit any bills for his work post mandate.
Id. at 87-88. Notably, he would have been paid more for federal work than
state work. Id. at 87.
At the evidentiary hearing, the following question was asked: “[d]id you
intentionally miss the deadline in either Mr. Miller or Mr. Jones’ [another
death-sentenced inmate] case to keep them off of a warrant-eligible list?” Id.
at 109. Mr. Norgard responded no. Id. Finally, on direct, Mr. Norgard said
he did not have federal habeas experience in 2006. Id. at 118.

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On cross-examination, Mr. Norgard attested that Petitioner made the
decision to forgo the filing of a 2254 petition. Id. at 119. Petitioner first told
Mr. Norgard of his decision at the evidentiary hearing in November 2003. Id.
at 119-20. After the mandate on the denial of his Rule 3.851 motion, Mr.
Norgard reached out to Petitioner again and Petitioner confirmed his desire to
forgo filing a 2254 petition. Id. at 120. At no time did Petitioner ask Mr.
Norgard to file a federal petition. Id. Petitioner never communicated with
Mr. Norgard any desire to file a federal petition. Id. at 122.
Mr. Norgard believed Petitioner to be competent at the evidentiary
hearing. Id. at 120. During the state-court evidentiary hearing, Petitioner
wanted to abort the hearing.

Id. at 120-21.

Apparently, he had been

reluctant to file the post-conviction motion. In a pause in the proceedings,
during a private conversation, the following transpired:
We were allowed to have a private conversation
with him. He told us that he didn’t even want to file
the motion. He didn’t want the hearing to continue.
We talked him out of that by getting him to agree we
could just send him back to the prison, and we’d just
do what we needed to do.
Id. at 121.
During his tenure working on Petitioner’s case, Mr. Norgard testified
that he never saw anything in any mental health reports or through the
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communication with any mental health experts that Petitioner was
incompetent to proceed.

Id. at 123-24.

At the capital phase of the trial,

Petitioner apologized to the family of the victim, apologized to the surviving
victim, and expressed remorse for his actions. Id. at 124.
On re-direct, Mr. Norgard explained his conviction that Petitioner was
competent, noting that Ms. Brewer was having issues with Petitioner being
reluctant to sign and submit a Rule 3.851 motion, and during this particular
time period, Petitioner was seen by a mental health expert three times. Id. at
125. After the evidentiary hearing, Mr. Norgard made three phone calls to
Petitioner, one of which was refused, and visited Petitioner once. Id. at 126.
Mr. Norgard specified he had two particular reasons for maintaining contact
with Petitioner: “to keep a lid on his wish to be a death volunteer, and to assess
whether he still wanted to waive his appeals[.]” Id.
Mr. Norgard described Petitioner as lucid and able to understand his
counsel.

Id.

Petitioner reiterated that he did not want to continue the

litigation and wanted to be a death volunteer.

Id.

Mr. Norgard said

Petitioner “would express very lucid reasons as to why he wanted to just die
and finish it up and get it over with.” Id. Petitioner even wrote the state
court about his desire to be a death volunteer.

Id. at 127.

Mr. Norgard

wanted to keep a lid on Petitioner’s desire to be a death volunteer. Id.
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When asked if, when Mr. Norgard stated he wanted to avoid initiation of
the process, he was referring to clemency review, Mr. Norgard responded no.
Id. at 129. He explained he was trying to keep Petitioner from revealing he
wanted to be a death volunteer, like when he contacted the state court. Id.
Mr. Norgard agreed that Petitioner’s case “flew under the radar[.]” Id. at 130.
In closing argument, Petitioner’s current counsel, Mr. Gregory Brown,
asked the Court to not credit Mr. Norgard’s testimony about “additional phone
calls” because various records and billing statements do not reflect these calls.
Id. at 131-32. Mr. Brown argued, the evidence shows Mr. Norgard did not
communicate with his client at all regarding the filing of a federal habeas
petition.

Id. at 133.

Further, Mr. Brown claims there was constructive

abandonment based on Mr. Norgard’s failure to visit or speak with his client
in a meaningful way. Id. Mr. Brown submits that no mental health expert
evaluated Mr. Miller to determine if he was competent to make the decision to
waive his federal habeas petition. Id. at 134. Finally, Mr. Brown asked for
an additional evidentiary hearing to establish that Petitioner’s “mental health
is an extraordinary circumstance and affects his diligence in filing the federal
habeas petition.” Id. at 135.
In closing, Respondents’ counsel, Mr. Michael Kennett, said Mr. Norgard
testified Petitioner was the one who decided to forgo filing a 2254 petition,
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Petitioner failed to rebut that testimony with any direct evidence, and
Petitioner failed to meet his burden to establish equitable tolling. Id.
IV.

Findings and Conclusions

The Court credits the testimony of Mr. Norgard. He is an officer of the
Court. He testified under oath he was very experienced counsel at the time of
Petitioner’s state court evidentiary hearing. See Hardwick v. Benton, 318 F.
App’x 844, 846 n. 2 (11th Cir. 2009) (per curiam) (“When courts are examining
the performance of an experienced trial counsel, the presumption that his
conduct was reasonable is even stronger.”) (quoting Chandler v. United States,
218 F.3d 1305, 1316 (11th Cir. 2000)). Petitioner did not take the stand to
discredit counsel’s testimony as to what occurred during Mr. Norgard’s
representation of Petitioner.

As such, Mr. Norgard’s testimony that

Petitioner decided to forego his federal remedies and reported his decision to
Mr. Norgard at the state court evidentiary hearing and during a post-mandate
phone conversation before the limitation period expired essentially went
unrebutted.9 Mr. Norgard abided by his client’s directive to not file a federal

The Court is not convinced that the absence of any reference to telephone calls in the
Florida Department of Corrections’ records means telephone conversations did not occur as
Mr. Norgard attested otherwise, based on his office records. Even if this Court were to
discount some or all of these telephone conversations, at the state court evidentiary hearing,
Petitioner told Mr. Norgard he did not want to pursue federal remedies.
9

27

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habeas petition.

As such, there was no abandonment by counsel or

constructive abandonment by counsel.
As for Respondents’ unsupported theory that Mr. Norgard adopted a
strategy to avoid clemency review and decided to forego federal habeas
proceedings in order to implement this strategy, that theory is unsupported by
the record.10 Mr. Norgard testified his strategy did not include efforts to avoid
Based on the state of Florida clemency law as of December 9, 2004, Respondents’
contention that Mr. Norgard developed some scheme to avoid clemency review by
intentionally failing to file a federal petition is non-sensical. Mr. Norgard began his
representation of Petitioner in 2003. Mr. Norgard represented Petitioner at the state court
evidentiary hearing on the Rule 3.851 motion. The mandate issued on April 13, 2006. The
one-year limitation period expired on August 3, 2006. During that time, the Florida Rules
of Executive Clemency, effective December 9, 2004, included the following provision:
10

The investigation by the Parole Commission shall begin
at such time as designated by the Governor. If the Governor
has made no such designation, the investigation shall begin
immediately after the defendant’s initial petition for writ of
habeas corpus, filed in the appropriate federal district court, has
been denied by the 11th Circuit Court of Appeals, so long as all
post-conviction pleadings, both state and federal, have been filed
in a timely manner as determined by the Governor. An
investigation shall commence immediately upon any
failure to timely file the initial motion for post-conviction
relief in state court, and any appeal therefrom, or the
initial petition for writ of habeas corpus in federal court,
and any appeal therefrom. . . . The Parole Commission’s
Capital Punishment Research Specialist shall routinely
monitor and track death penalty cases beyond direct
appeal for this purpose.
Id. Rule 15(C) (emphasis added). See Petitioner’s Notice of Supplemental Authority (Doc.
66), Attachment A (December 9, 2004 Florida Rules of Executive Clemency) (Doc. 66-1).
These rules remained effective until April 5, 2007, but the April 5, 2007 Rules also contain a
comparable provision. Petitioner’s Exhibit 22 (April 5, 2007 Florida Rules of Executive
Clemency) (Doc. 63-1). Thus, the initiation of a clemency investigation by the Governor was
due to commence immediately upon Petitioner’s failure to file a timely initial petition in

28

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clemency review. He stated he did not intentionally miss the deadline to keep
Petitioner off a warrant-eligible list. In response to questioning as to whether
Mr. Norgard was prepared to file a federal petition, he stated he had identified
the issues and would have been prepared to move forward in a timely manner
and would have timely filed a federal petition but for his client’s adamant
disapproval of counsel seeking any further appeals.
Mr. Norgard’s focus was on two things: to attempt to keep a lid on
Petitioner’s desire to be death volunteer and to assess whether Petitioner
wanted to waive his federal appeals. Although Petitioner managed to write
and inform the state court of his desire to be a death volunteer, Mr. Norgard
re-confirmed with Petitioner that he still wanted to forego further review of his
judgment and sentence after completion of state post-conviction review. As a
consequence of Petitioner not pursuing federal habeas relief, Petitioner’s case
may have fallen off of the Governor’s and others’ radar concerning the
implementation of clemency proceedings or, just as a matter of circumstance
or other reasons, these proceedings were not initiated. See Notice to Court
Regarding Clemency (Doc. 64).

federal court. As such, Respondents’ assertion that Mr. Norgard intentionally missed the
deadline as part of a litigation strategy to avoid consideration for a warrant by not completing
one round of federal litigation is without merit and contrary to the state of the law at the
time Mr. Norgard represented Petitioner during the one-year limitation period.

29

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In sum, the Court finds Mr. Norgard did not intentionally miss the
federal habeas deadline in order to implement a strategy to avoid or delay the
scheduling of an execution date. Also, Mr. Norgard did not negligently miss
the deadline. Mr. Norgard’s conduct did not amount to abandonment of the
attorney-client relationship.
relationship.

There was no severance of the agency

Mr. Norgard did not purposely act adversely to Petitioner’s

interests by acting or failing to act for the purpose of advancing Mr. Norgard’s
own interests or those of a third party.

Finally, and of great import, Mr.

Norgard did not take actions that were contrary to Petitioner’s instructions
and adverse to his interests. Petitioner instructed Mr. Norgard not to file a
federal petition and further appeal his judgment and sentence. Mr. Norgard
abided by his client’s wishes.

Mr. Norgard neither abandoned nor

“constructively” abandoned Petitioner. In short, the Court finds there was no
attorney misconduct or egregious failures of counsel to pursue further appeals.
On the record of the state court evidentiary hearing on November 4 and
5, 2003, Petitioner stated on the record, “I want to cancel these proceedings
and go back to prison. I want to drop all my appeals.” Ex. 29 at 949. The
court declined to entertain Petitioner’s request at that time but allowed that
Petitioner could discuss the matter with counsel at lunch break. Id. After
conferring with their client, Ms. Brewer, co-counsel for Petitioner, announced
30

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Petitioner’s presence at the proceeding was waived with Petitioner’s consent.
Id. at 979. After some discussion, the court granted Petitioner’s request to
leave the proceeding. Id. at 987-88.
To establish that he is entitled to equitable tolling during the period of
Attorney Norgard’s representation, Petitioner must demonstrate both that he
diligently pursued his federal habeas rights and extraordinary circumstances
prevented his timely filing of a federal habeas petition. In order to get to the
heart of the matter, the Court assumes without deciding that Petitioner has
diligently pursued his rights.

See O’Connor, 2019 WL 11029408, at *2

(assuming same). The question remains whether Petitioner has shown an
extraordinary circumstance warranting equitable tolling. In order to obtain
equitable tolling for the period following the issuance of the mandate on April
13, 2006 through the expiration of the one-year limitation period on August 3,
2006, not only must Petitioner show extraordinary circumstances he must also
demonstrate those circumstances caused him to miss the filing deadline.
The record demonstrates the following. Petitioner has depression and
has been diagnosed with alcohol abuse.

Miller, 926 So. 2d at 1250.

He

suffers from a personality disorder, but not a major mental illness like
psychosis or schizophrenia. Id. Since at least 1983, he has exhibited this
mixed personality disorder, involving features of being avoidant, schizoid, and
31

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paranoid. Id. He performs well on intelligence tests but has an impairment
of frontal lobe functions.

Id.

Dr. Krop found Petitioner to be mentally

competent when he committed the murder and mentally competent to
participate in the trial proceedings. Id. at 1251. In brief, Petitioner has
been diagnosed with “alcohol and drug abuse, frontal lobe defects, and schizoid
personality traits.” Miller, 770 So. 2d at 1147.
The record shows Petitioner has suffered from long-term mental health
and emotional illness and drug and alcohol dependencies.

Although

Petitioner was found to have mental problems reducing his culpability for a
1986 murder in North Carolina, that was not the case for the 1997 murder of
Albert Floyd. Of note, Petitioner was convicted of both murders and served
time for both.
Debra Lee, a social worker and substance abuse counselor, testified at
the state court evidentiary hearing that Petitioner had been diagnosed with
schizoid personality disorder on November 22, 1996. Id. at 1004. Dr. Joseph
Chong Sang Wu, the clinical director for the University of California Irvine
Brain Imaging Center, agreed Petitioner had frontal lobe deficit. Id. at 105354. He attested the PET scan provides additional corroborative evidence of
frontal lobe deficit. Id. at 1057.

32

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Dr. Harry Krop, a licensed psychologist, attested that he had reviewed
the records, including records from various psychiatric facilities, the file
related to the 1986 murder case, prison record, VA psychiatric records, and
others, before giving his opinion to trial counsel. Id. at 1098-99, 1112. He
specifically stated he would have reviewed the records of the 1983 involuntary
hospitalization. Id. at 1112. Dr. Krop testified Dr. Wu’s findings from the
PET scan were consistent with Dr. Krop’s findings of his “neurpsyche.” Id. at
1099. In response to the question as to whether Dr. Krop had found Petitioner
had schizoid personality traits, Dr. Krop responded affirmatively. Id. at 1100.
He explained:
Yes, one of my diagnoses was – and I don’t recall
when the DSM switched over. It may have been
referred to back then as a mixed personality disorder
or now it would be a personality disorder not otherwise
specified, in my opinion, with – I diagnosed him with
avoidance, schizoid and paranoid features and
pretty much he’s been diagnosed with somewhat
of a similar diagnosis by the various facilities
and doctors he’s seen over the years.
Id. (emphasis added).
Dr. Krop found his evaluation was generally inconsistent with any major
mental illness, but he found Petitioner to be suspicious with paranoid
tendencies. Id. at 1102. After the neuropsychological test and evaluation,
Dr. Krop found cognitive deficits in the frontal lobe. Id. at 1103. He also
33

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found Petitioner of a “decent intellectual level,” with some adjustment
disorders. Id. at 1106. Dr. Krop described Petitioner as leading a “schizoid
lifestyle.”

Id. at 1113.

Dr. Krop stated that there was no record that

Petitioner was “psychotic,” leading to Dr. Krop’s conclusion that he was not
psychotic at the time of the offense.

Id. at 1114.

Again, Dr. Krop said

Petitioner was diagnosed with adjustment disorder, alcohol abuse, and mixed
personality disorder with avoidance, schizoid and borderline features. Id.
Of import, at the state-court evidentiary hearing, Dr. Krop testified his
opinion had not changed from when he testified in 1997 or 1998 to date. Id.
at 119. He opined that Dr. Wu’s PET scan and findings strengthened Dr.
Krop’s original findings of frontal lobe deficits but did not alter or change his
original opinion. Id. Dr. Krop reconfirmed that Petitioner does not suffer
from any major mental illness, like psychoses, a debilitating mood disorder, or
severe depressive mental illness. Id. at 1125-26.
There is an abundance of mental and psychological records in the record
before the Court, including those submitted by Petitioner at the federal
evidentiary hearing on November 21, 2021. There is evidence of a petition for
involuntary commitment in 1983 requesting commitment based on the
individual being mentally ill or inebriated who is dangerous to himself or
others.

Ex. 26 at 646.

A commitment order followed.
34

Id. at 647.

The

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North Carolina Division of Mental Health, Mental Retardation and Substance
Abuse Services document of admission, dated September 3, 1983, shows
Petitioner reported he was drunk and had a black out experience. Id. at 649.
Petitioner became aggressive and threatening, he drank again, and attempted
to cut himself. Id. On July 16, 1986, in his second mental health center
admission in North Carolina, he reported he had been found competent to
proceed to trial.

Id. at 656.

Records from November 1996 show the

assessment of alcohol and drug abuse as well as an Axis II schizoid personality
disorder. Id. at 497, 501.
Dr. Krop’s letter of October 30, 1997, to Alan Chipperfield, contains Dr.
Krop’s conclusion that Petitioner “is viewed as Competent to Proceed” after Dr.
Krop’s clinical interview, the administration of a battery of psychological
testing, and a review of the records. Id. at 662. He found: “[t]here is also no
evidence to suggest that he would have been unable to appreciate the nature,
quality, and wrongfulness of his actions. However, Mr. Miller is an intelligent
individual with an extensive history of alcohol and substance abuse.” Id. Dr.
Krop further stated, the evaluation is generally inconsistent with any major
mental illness, although he found Petitioner a suspicious individual with
paranoid tendencies.

Id.

He found the evaluation inconsistent with an

Antisocial Personality Disorder. Id. Extensive notes are attached, including
35

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notations as to the documents Dr. Krop reviewed and the interviews he
undertook. Id. at 664-71.
The record shows Dr. Krop testified at the penalty phase of the trial.
Ex. 13 at 893. In a nutshell, he testified to the following:
The type of personality disorder which he was
diagnosed in ’83 and later in ’85, and also my own
evaluation are very consistent with that, is a
personality disorder which we call mixed or mixed
personality disorder, which means it has features from
different types of personality traits.
And the most consistent personality traits that
he has been diagnosed as having are avoidant,
schitzoid [sic] and paranoid. Schitzoid [sic] and
paranoid are the type of personality traits that really
cause a person problems.
I think paranoia is a pretty commonly used term
and it’s when a person is overly suspicious, thinks
people are out to get him, et cetera, et cetera, not to
the point where he is not in touch with reality, but to
a point where it causes problems with that person
adjusting in society.
Schitzoid [sic], again, is like schitzophrenia [sic],
but not to the point where the person is out of contact
with reality. Schitzoid [sic] individuals typically are
very aloof. They try and distance themselves and sort
of view themselves as different and others view them
as different, and they don’t fit in with society.
So those kinds of traits have been constantly
assigned to Mr. Miller from ’83, and my psychological
testing was very consistent. So that would be his
36

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diagnosis, that personality disorder plus alcohol abuse
both from ’83 on, as well as my current evaluation.
Id. at 900-901.
Dr. Krop found Petitioner sane at the time of the offense, noting he
clearly knew right from wrong. Id. at 903. Dr. Krop also found Petitioner
competent to proceed. Id. Dr. Krop did not find that Petitioner had an antisocial personality disorder, nor has he been diagnosed as such in the past. Id.
Dr. Krop found Petitioner to be of average intellectual ability but he did not do
well on tests measuring frontal lobe functions.

Id. at 906.

Dr. Krop

explained that part of the brain controls behavior or inhibition. Id. Upon
being interviewed, Petitioner expressed to Dr. Krop that he felt guilty,
remorseful, and responsible, said he deserved to be punished, and accepted
responsibility for his actions. Id. at 910. Dr. Krop said Petitioner expressed
the same in the taped confession he provided in Louisiana. Id. Dr. Krop
testified that he believed, at the time Petitioner committed the murder he was
mentally competent, and he believed Petitioner was competent to participate
in his trial (“Yes, very much.”). Id. at 919. Dr. Krop testified Petitioner was
lucid, was not delusional, and was oriented in time, place, and situation. Id.
at 919-20. Of note, Dr. Krop recorded that Petitioner was not hallucinating
and not suffering from any major mental illness. Id.
37

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At trial, Petitioner took the stand and apologized to the surviving victim,
Ms. Linda Fullwood (aggravated battery), and apologized to the family of the
deceased, Mr. Albert Floyd. Id. at 937.
Although Petitioner submits that several other doctors should have been
called at the state post-conviction evidentiary hearing, Petitioner has not
provided the Court with any evidence that Petitioner was, at the time of the
state post-conviction evidentiary hearing or during the time Mr. Norgard
represented Petitioner, incompetent, insane, or suffering from a major mental
illness. See Petition at 87-89. Petitioner mentions Dr. Herkov but makes no
mention how his testimony would have differed from the experts that were
called to testify. Id. at 87-88. Certainly, post-conviction counsel called the
expert witnesses who best supported Petitioner’s contention of serious mental
impairment.
Petitioner asserts Dr. Satterfield said had he been aware of additional
information, “he would likely have diagnosed Miller with full-blown
schizophrenia[,]” not that he did diagnose Petitioner as suffering from
schizophrenia. Id. at 88 (emphasis added). Finally, Petitioner mentions a
Dr. Eddy Regnier, and contends, “his findings are consistent with other
evidence in Miller’s case demonstrating that Miller suffers from
schizophrenia.”

Id. (emphasis added).
38

If his findings are consistent with

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other evidence, that evidence, based on the testimony and reports of numerous
experts, shows Petitioner has a personality disorder identified as mixed or
mixed personality disorder with avoidant, schizoid and paranoid personality
traits, or something comparable to that diagnosis, along with frontal lobe
impairment.
As noted in repeated orders of the Court, the conduct of Mr. Norgard and
the related conduct of Petitioner were to be the focus of the evidentiary
hearing.

(Docs. 44, 46, 47).

For purposes of equitable tolling, this Court

looks to the period and the actions of the attorney “who represented petitioner
at the time when [Petitioner’s] federal habeas petition was due to be filed.”
Christeson v. Roper, 574 U.S. 373, 382 (2015) (per curiam) (Alito, J.,
dissenting).
Although given the opportunity, Petitioner did not take the stand at the
evidentiary hearing.

He sat silent and did not dispute Mr. Norgard’s

testimony that Petitioner, in a lucid and forthright manner, told counsel not to
file a federal habeas petition and continued in this vein through the expiration
of the one-year limitation period. The Court observed Petitioner’s behavior in
the courtroom.

He appeared to be lucid, engaged, and oriented.

communicated with his counsel and observed all courtroom decorum.

39

He
He

Case 3:17-cv-00932-BJD-JBT Document 72 Filed 11/18/21 Page 40 of 67 PageID 5199

never disrupted the proceedings or acted inappropriately in the courtroom.
As such, Mr. Norgard’s testimony remains unrebutted and will be credited.
Petitioner

makes

an

unsupported

allegation

that

effective

communication was virtually impossible between Petitioner and his counsel.
Petition at 11. Based on Mr. Norgard’s testimony, there were no barriers to
communication. Petitioner lucidly expressed his desires to Mr. Norgard at
both the state court evidentiary hearing and afterwards. Petitioner did not
want Mr. Norgard to file a federal habeas petition and Petitioner expressed his
wishes to counsel. Mr. Norgard abided by Petitioner’s decision and directives.
Mr. Norgard reached out to Petitioner to make sure Petitioner had not changed
his mind after the state-court evidentiary hearing, and Petitioner reiterated
his decision and directive not to file anything further. Mr. Norgard did not
observe or describe any active delusions or hallucinations during the
evidentiary hearing or during post-hearing communications. Further, he did
not describe any behavior suggestive or indicative of active psychosis on
Petitioner’s part.

Based on Mr. Norgard’s testimony, the Court concludes

there were no barriers to effective communication between Petitioner and his
counsel.
As such, Petitioner has failed to show Mr. Norgard engaged in any
serious attorney misconduct qualifying as an extraordinary circumstance.
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Petitioner has not shown bad faith, dishonesty, divided loyalty, or mental
impairment on the part of his counsel.

Cadet, 853 F.3d at 1236.

Additionally, this record “does not suggest abandonment or any other form of
serious misconduct rising to the level of an ‘extraordinary circumstance.’”
Robinson v. Jones, No. 1:17cv198-MW-CJK, 2018 WL 6920351, at *4 (N.D. Fla.
Nov. 6, 2018), report and recommendation adopted by 2019 WL 77508 (N.D.
Fla. Jan. 2, 2019), affirmed by 808 F. App’x 894 (11th Cir. 2020), cert. denied,
141 S. Ct. 2764 (2021) (per curiam).
Unlike counsel in Thomas v. Attorney General, 992 F.3d 1162, 1167
(11th Cir. 2021), petition for cert. filed, (U.S. Oct. 20, 2021), Mr. Norgard did
not abdicate his duty of loyalty to Petitioner so he could promote his own
interests or the interests of others. Crediting Mr. Norgard’s uncontroverted
testimony, Mr. Norgard did not misinterpret the one-year deadline, he did not
fail to conduct research and contemplate the issues to be raised in a federal
petition, and he did not walk away from the attorney-client relationship. See
id. at 1183; Cadet, 853 F.3d at 1234 (“Abandonment denotes renunciation or
withdrawal, or a rejection or desertion of one’s responsibilities, a walking away
from a relationship.”). Furthermore, there is no evidence that Mr. Norgard
acted in bad faith. Thomas, 992 F.3d at 1184. In sum, there has not been a
showing

of

“professional

misconduct”
41

or

some

other

extraordinary

Case 3:17-cv-00932-BJD-JBT Document 72 Filed 11/18/21 Page 42 of 67 PageID 5201

circumstance for equitable tolling purposes. Walters v. Fla. Dep’t of Corr., No.
3:18-cv-1088-TJC-PDB, 2021 WL 3172120, at * 3 (M.D. Fla. July 7, 2021). See
Holland, 560 U.S. at 651 (“professional misconduct . . . could nonetheless
amount to egregious behavior and create an extraordinary circumstance that
warrants equitable tolling”).
This does not mean Mr. Norgard’s representation was flawless.
Robinson v. State Att’y for Fla., 808 F. App’x 894, 898 (11th Cir. 2020) (per
curiam), cert. denied, 141 S. Ct. 2764 (2021). But negligence, even gross or
egregious negligence, does not, by itself, rise to the level of abandonment. Id.
Mr. Norgard’s overall conduct, “is not of the kind that would indicate attorney
abandonment.”

Id. at 899.

Petitioner continued to have a functioning

attorney of record, even though Petitioner had told counsel to stand down as
far as pursuing federal remedies and further appeals.
1235.

Cadet, 853 F.3d at

Here, counsel followed Petitioner’s express wishes; Mr. Norgard

consulted with his client, making “a reasonable effort to discover the
defendant’s wishes.” Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000). Thus,
he performed in a professionally reasonable manner. Id.
Since Petitioner has failed to prove an alleged extraordinary
circumstance of abandonment, it is unnecessary for this Court to consider
whether Petitioner was “adequately diligent or not.” Robinson, 808 F. App’x
42

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at 899. Indeed, for equitable tolling purposes, this Court need not address one
element when Petitioner has failed to satisfy the other. Menominee Indian
Tribe of Wis., 577 U.S. at 256.
Next, this Court will inquire as to whether Petitioner has shown some
other extraordinary circumstance, an external obstacle to timely filing. Id.
This extraordinary circumstance must have stood in Petitioner’s way.

Id.

(citation omitted). Of note, equitable tolling is unavailable if a litigant “was
responsible for its own delay.” Id. at 257. As such, if the matter was within
the petitioner’s control, the extraordinary-circumstances prong cannot be met.
Id. Again, the second prong is met only where the circumstances that caused
the delay are both extraordinary and beyond its control. Id.
A conclusory assertion of mental illness will not suffice. Smith, 301 F.
App’x at 378.

Moreover, simply because a petitioner is not mentally

competent does not “eviscerate the statutory right to counsel in federal habeas
proceedings.” Gonzales, 568 U.S. at 68 (internal quotation marks omitted).
As the Supreme Court found, “[g]iven the backward-looking, record-based
nature of most federal habeas proceedings, counsel can generally provide
effective representation to a habeas petitioner regardless of the petitioner’s
competence.” Id. This is borne out by the fact that the federal court’s review
pursuant to 28 U.S.C. § 2254(d)(1) is limited to the record before the state court
43

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that adjudicated the claim on the merits. Id. (quoting Cullen v. Pinholster,
563 U.S. 170, 181 (2011)).

As found in Gonzales, “[a]ttorneys are quite

capable of reviewing the state-court record, identifying legal errors, and
marshaling relevant arguments, even without their clients’ assistance.” Id.
at 68.
Here, Mr. Norgard attested that he had identified the issues and was
prepared to initiate a federal habeas case if Petitioner so desired.

Mr.

Norgard was in a position to undertake this review as Petitioner’s state habeas
registry counsel. He was well-versed in the post-conviction issues. However,
based on Petitioner’s express wishes, Mr. Norgard did not file a federal
petition.
Petitioner has not shown that his mental impairment constrained
Petitioner’s ability to file a timely petition. Petitioner communicated with his
counsel.

Mr. Norgard spoke with Petitioner after the mandate issued to

confirm that he did not want to pursue his federal remedies. In no uncertain
terms, Petitioner told his attorney he did not want to pursue his federal
remedies. Any failure of counsel to stay in touch after the missed federal
deadline is of no import as any failures at that point did not cause Petitioner
to miss the filing deadline. Ryder, 2012 WL 12895353, at *4.

44

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The petitioner in Bolarinwa, upon which Petitioner relies, was found to
be incapacitated at one point in her life, then rehabilitated and fit to proceed
to trial. Bolarinwa suffered from depression, anxiety, and psychosis, but the
court still found she was not subjected to extraordinary circumstances that
prevented her from filing a federal habeas petition in a timely fashion. Nara,
Laws, and Hunter are distinguishable because the petitioners either initially
filed pro se or with just the help of jailhouse clerks, not attorneys. Similarly,
the court in McSwain, rejected a claim for equitable tolling because the
petitioner was able to pursue her state court remedies notwithstanding her
mental illness and she was represented by counsel for the federal proceeding.
And, in Fisher, the Fifth Circuit agreed that there is a possibility that mental
incompetency might support equitable tolling, but the court still declined to
apply equitable tolling.
Here, the Court must look for the causal link between Petitioner’s mental
illness and his ability to seasonably file a petition.

The record shows

Petitioner was not expected to pursue legal relief on his own.

He was

appointed registry counsel, versed in the deadlines and procedures. There is
no evidence that Petitioner was unable to communicate with Mr. Norgard.
Mr. Norgard spoke with Petitioner in person and through telephone
conversations. Even in Riva, 803 F.3d at 83, where there was a record that
45

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the petitioner had been committed to a facility for seventeen years, suffered
from diagnosed paranoid schizophrenia, exhibited bizarre delusions of a
persecutory nature, paranoid ideation, auditory hallucinations, and somatic
terrors, the court still found that the petitioner had not shown that his mental
illness prevented him from following through with his litigation.
Here too there is no evidence that Petitioner’s mental impairment
prevented him from conferring with counsel and making litigation decisions.
There is no evidence that Petitioner refused all communication with counsel.
Indeed, counsel explained that Petitioner made his position clear, both in
person and on the telephone; he did not want to pursue further appeals.
Under these circumstances, the Court is not convinced that Petitioner has
shown that his mental illness prevented him from communicating with counsel
and pursuing his litigation if he were so inclined. The record demonstrates
Petitioner had an attorney to assist and educate him. See Hunter, 587 F.3d
at 1309 (no counsel to assist and educate the petitioner).

Petitioner is of

average intelligence. See id. (due to severe irreversible mental retardation,
Hunter was not able to understand and comply with filing requirements on his
own, or even if he had counsel, he would have had a very difficult time assisting
others).

Although Petitioner may have impulse issues due to frontal lobe

46

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damage, he scored well on intelligence tests and was able to converse with
counsel, express his opinions and concerns, and assist counsel.
There is no evidence that Petitioner was unable to understand his legal
rights or act upon them. This is evidenced by the fact that he was found to be
competent to proceed in both North Carolina and Florida. Simply suffering
from mental impairments, as Petitioner admittedly does, is insufficient to
establish that there is a causal connection between his alleged mental
deficiencies or disorder and his ability to relate to counsel that he desires to
pursue his federal remedies. See Lawrence, 421 F.3d at 1227.
Petitioner needs to show that his mental illness was so profound and
debilitating, he was unable to file a timely habeas petition, given his mental
limitations, even with the assistance of knowledgeable counsel. See Lewis v.
Howerton, No. 1:07-cv-2803-JEC-WEJ, 2012 WL 4514044, at *16 (N.D. Ga.
Sept. 30, 2012) (not reported in F.Supp.2d) (must show inability to file based
on debilitating mental condition), cert. denied, 137 S. Ct. 132 (2016).
Petitioner has not shown that he has an inability to understand and appreciate
federal law and procedure due to a mental disorder.

Indeed, it is quite

apparent on this record that Petitioner fully understood that there was a
timeline and there were avenues open to him to pursue federal remedies, but
he elected not to pursue those remedies and chose not to meet the
47

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requirements, and purposefully declined to take further action by telling his
counsel not to act, first at the evidentiary hearing, and later on during the oneyear limitation period. There was no extraordinary circumstance that stood
in Petitioner’s way. Petitioner was given the opportunity, with the assistance
of counsel, to pursue his federal remedies in a timely fashion. Petitioner chose
not to pursue those remedies.
Although Petitioner was advised that the hearing would concern “the
conduct of Mr. Robert Norgard, Esquire, and the related conduct of
Petitioner[,]” Order (Doc. 47), Petitioner did not take the stand at the
evidentiary hearing. Instead, he chose to submit exhibits, all admitted at the
hearing without objection. 11

See Petitioner’s Exhibit Limited Evidentiary

Hearing October 21, 2021. Petitioner’s Exhibit 2 shows Mr. Norgard became
sole registry counsel for Petitioner effective June 15, 2004.

Petitioner’s

Exhibit 6 contains an extensive Background Packet of confidential attorneyclient materials.

These documents show Petitioner, although honorably

discharged from military service, exhibited substandard performance during

The Court has reviewed the entirety of Petitioner’s Exhibits and the other exhibits
contained in the record before the Court. Upon review, there is an abundance of evidence
concerning Petitioner’s mental disorder and condition. These exhibits include multiple
experts’ assessments of Petitioner’s mental state over the years, and particularly of interest
to the Court, assessments made closer to the time period at issue. These expert evaluations
and assessments resulted in strikingly similar diagnoses.
11

48

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his tenure of service in the Navy from 1978-81.

Id., Tab 2.

His 1983

discharge summary from his September 3, 1983 admission to Forsyth-Stokes
Mental Health Center, dated September 19, 1983, shows Petitioner diagnosed
with Axis I “Adjustment Disorder with Depressed Mood,” placed on no
medication, diagnosed with no Axis III diagnosis, and encouraged to seek out
outpatient services for therapeutic issues. Id., Tab 3 at 80-81. He had been
admitted on petition when he became both violent and suicidal, explaining he
had been drinking and had a blackout experience. Id. at 80. Notes by the
psychiatrist reflect, “no indication of psychotic thinking” but patient exhibited
depression.

Id. at 116.

The psychiatrist’s initial impression was

“[d]ysthymic disorder with suicidal intent. Possible alcohol dependence.” Id.
at 117. On September 6, 1983, Petitioner reported an auditory hallucination,
depression, crying spells, a suicide attempt, and the use of marijuana. Id. at
121.
For his second admission to the Forsyth-Stokes Mental Health Center in
North Carolina, dated July 16, 1986, it was noted that Petitioner was awaiting
trial for murder. Id. at 137. He reported, “not experiencing any psychiatric
symptoms.”

Id.

He admitted to drinking heavily and exhibiting violent

impulses when drinking.
unusual thoughts.”

Id.

He denied “any hallucinations, delusions or

Id. at 138.

The social worker found, “intact mental
49

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status” and said Petitioner “admits to no real psychiatric or behavioral
disordering except when he is drinking.” Id. The diagnosis on the discharge
summary of October 2, 1986 is as follows: Axis I 305.03 Alcohol Abuse in
remission; Axis I 312.34 Intermittent explosive disorder; Axis II None; Axis III
None. Id. at 141. He was found to be well oriented with no unusual thought
content. Id. at 141.

Petitioner was again discharged without medication.

Id. at 142. Generally, Petitioner was found to be of average intelligence with
good verbal and social skills while suffering from alcohol and cocaine
dependence. Id. at 143.
Petitioner’s Exhibit 6, Tab 4, the records for Dorothea Dix Hospital,
Raleigh, North Carolina, dated March 28, 1986, refer to the charge of murder
with the following diagnosis: Axis I 309.40 Adjustment disorder with mixed
disturbance of emotions and conduct; Axis I 305.03 alcohol abuse by history;
Axis II 301.89 personality disorder, mixed, with avoidant, schizoid, paranoid
and borderline features; Axis III No diagnosis. As far as Petitioner’s mental
status, it was noted that Petitioner was sad, apathetic, and asthenic, with no
evidence of hallucinations or delusions. Id. at 150. He presented no evidence
of hallucinations or delusions. Id. His Slosson Intelligence score was 101,
placing him in the average range of intelligence. Id. at 151. Although there
is a notation, “[d]iagnosis of schizoid personality and schizophrenia are the
50

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most commonly found [sic] with this described profile[,]” the actual diagnosis
by the forensic psychiatrist, Patricio P. Lara, M.D., is:

Aix I Adjustment

disorder with mixed disturbance of emotions and conduct; Axis I Alcohol abuse
by history; Axis II Personality disorder, mixed, with avoidant schizoid
paranoid and borderline features; Axis III None.

Id. at 153.

Again,

Petitioner was discharged on no medication. Id. Finally, and of significance,
the psychiatrist found Petitioner competent to stand trial. Id.
In 1996, Veteran’s Administration (VA) Medical Center (admission date
October 31, 1996; discharge date November 27, 1996) recorded the following
diagnosis, in relevant part: Axis I Alcohol dependence, cocaine, and nicotine
dependence with physiological dependence and cannabis abuse; Axis II
Schizoid personality disorder.

Petitioner’s Exhibit 6, Tab 6 at 262.

Petitioner denied hallucinations, Delirium Tremens (DT’s) or seizures.

Id.

The doctor, J. Dasari, M.D., found no evidence of psychosis or delusions. Id.
at 263.

Dr. Dasari referred Petitioner to a psychologist for “continued

assessment of his depressed mood, his anger, and his schizoid personality
disorder.” Id. at 264.
Of import, on October 30, 1997, Dr. Krop wrote Petitioner’s defense
counsel, Alan Chipperfield, Assistant Public Defender, that Dr. Krop’s
evaluation, after a battery of psychological testing, “is generally inconsistent
51

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with any major mental illness, although Mr. Miller appears to be a suspicious
individual with paranoid tendencies. The evaluation is inconsistent with an
Antisocial Personality Disorder[.]” Petitioner’s Exhibit 6, Tab 8 at 393. Dr.
Krop found, “Mr. Miller understands his legal options and is viewed as
Competent to Proceed.”

Id.

Dr. Krop reviewed extensive records.

Id. at

395-402.
At trial, the defense called Dr. Krop as an expert witness in forensic
psychology. Petitioner’s Exhibit 6, Tab 9 at 405. He attested he reviewed
multiple records prior to his evaluation.

Id. at 406-407 (school records,

military records, psychiatric records from various facilities, prison records, VA
psychiatric records, reports from Louisiana, Petitioner’s taped confession, and
depositions of relevant witnesses). Dr. Krop also interviewed family members
and Petitioner. Id. at 407. Dr. Krop said Petitioner’s past psychiatric records
“have been pretty consistent as far as their diagnosis and their
recommendations.”

Id. at 409.

Over the years, Petitioner has been

diagnosed with depression and alcohol abuse with violence related to drinking.
Id. at 409-410. Historically, Petitioner has been diagnosed with some form of
a personality disorder; however, “it’s not considered a major mental illness,
such as psychosis or schizophrenia[.]” Id. at 410. In short, Dr. Krop opined
Petitioner has a “mental disorder” not a major mental illness. Id.
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More specifically, Dr. Krop diagnosed: a mixed or mixed personality
disorder, with the most consistent diagnosis of personality traits of “avoidant,
schitzoid [sic] and paranoid.” Id. at 411. To clarify, Dr. Krop explained that
schizoid is like schizophrenia, “but not to the point where the person is out of
contact with reality.” Id. Dr. Krop did not diagnose Petitioner with an antisocial personality disorder. Id. at 414. Dr. Krop found Petitioner “competent
to proceed.” Id.
Dr. Krop said Petitioner was sane at the time of the offense, clearly
knowing right from wrong. Id. Once again, Petitioner was found to be of
average intellectual ability, but his frontal lobe functions were found to be
diminished, that is, those functions involving inhibition and impulse control.
Id. at 417-18. Dr. Krop opined Petitioner’s impaired frontal lobe functions
coupled with alcohol abuse, further reduced Petitioner’s inhibition and impulse
control. Id. at 419-20. This combined with Petitioner’s “schitzoid [sic] traits
and paranoid traits” resulted in Petitioner being seriously disturbed and
engaging in impulsive behavior. Id. at 420. Dr. Krop described Petitioner as
leading a schizoid type of existence, where Petitioner neither followed-up with
treatment for his personality disorder or for alcohol abuse. Id. at 419.
Dr. Krop pointed out that Petitioner turned himself in, accepted
responsibility for his actions, and apparently felt guilt and remorse. Id. at
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421. Petitioner chose to turn himself in, after deciding to rob the deceased
and to hit him in the head to disable him. Id. at 423-24, 429. Dr. Krop said
Petitioner admitted he made a choice [to rob the victim], “and psychologically
I believe that he did, yes.”

Id. at 423.

Dr. Krop opined that Petitioner’s

actions were influenced by alcohol but Petitioner knew the difference between
right and wrong. Id. at 425-26.
Ultimately, Dr. Krop found Petitioner was mentally competent at the
time of the murder and at the time of the trial.

Id. at 430.

Upon

examination, Petitioner was found to be lucid, not suffering from
hallucinations and not delusional. Id. at 430-31. He was well oriented as to
time, place, and situation. Id. at 431. Dr. Krop said he found no evidence of
“any major mental illness” and Petitioner had the ability to conform his
behavior and make the decision to kill. Id. at 431-32.
Petitioner’s Exhibit 7 is the report of the PET-scan of Petitioner by Dr.
Joseph C. Wu, dated October 10, 2002. Dr. Wu reports an abnormal scan with
“metabolic decreases in orbitofrontal cortex,” exhibiting a pattern consistent
with encephalopathy. Id. at 1. He related, “[t]he most probable cause of the
PET scan abnormalities is schizophrenia spectrum disorder.” Id. at 2.
Dr.

Charles

Golden,

a

licensed

psychologist

conducted

a

neuropsychological assessment of Petitioner and provided a report dated
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March 20, 2003.

Petitioner’s Exhibit 8.

After conducting an Rorschach

Inkblot Test, Dr. Golden found the results consistent with individuals with
anterior brain dysfunction or schizoid/schizophrenic disorders.

Id. at 3-4.

Dr. Golden noted the PET scan was consistent and supportive of the analysis
of anterior brain dysfunction. Id. at 7. Of importance, Dr. Golden provided
the following diagnosis: Axis I Cognitive Disorder NOS, Multiple drug abuse
(by history), Intermittent explosive disorder secondary to drug use (by history),
Personality Disorder NOS. Id.
Yes, Petitioner suffers from a mental disorder, but Petitioner’s own
expert at trial, Dr. Krop, said Petitioner was not suffering from a major mental
illness, nor did he loose contact with reality. Although Petitioner has been
diagnosed with some form of a personality disorder, he has not been diagnosed
with psychosis or full-blown schizophrenia. Although there has been some
conjecture that Petitioner suffers from a schizophrenia spectrum disorder, the
overwhelming evidence contained in the record shows Petitioner’s frontal lobe
functions are diminished and he has a personality disorder with avoidant,
schizoid, paranoid, and borderline features, not a major mental illness, such as
schizophrenia.
On the contrary, over the years, the diagnoses have been very consistent.
The record is replete with documentation that Petitioner is living a schizoid
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type of existence, described as Axis II schizoid, paranoid and borderline
features; personality disorder, mixed, with avoidant, schizoid, paranoid and
borderline features; personality disorder, mixed, with avoidant schizoid
paranoid and borderline features; schizoid personality disorder; a mixed or
mixed personality disorder, with personality traits that are avoidant, schizoid
and paranoid; and Axis I Cognitive Disorder NOS, Multiple drug abuse (by
history), Intermittent explosive disorder secondary to drug use (by history),
Personality Disorder NOS.
Notably, experts have found Petitioner competent, both when he
committed crimes and to stand trial. Experts have also found Petitioner sane.
Petitioner has not provided the Court with any evidence that Petitioner was,
at the time of the state post-conviction evidentiary hearing and during the
period immediately following the hearing up until the one-year period expired,
incompetent, insane, or suffering from a major mental illness rendering him
incapable of communicating with counsel. Repeatedly, after examination and
assessment, experts have opined that Petitioner was not delusional or
experiencing hallucinations.

Additionally, Mr. Norgard testified he found

Petitioner both lucid and oriented.
The Court recognizes Petitioner’s frontal lobe functions are diminished,
resulting in a lack of impulse control, exacerbated by the abuse of alcohol.
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Admittedly, Petitioner is both paranoid and depressed and readily exhibits his
depression and that paranoia. The record also shows Petitioner has expressed
suicidal ideation, both verbally and outwardly. Of import, Petitioner has been
found to be of average intelligence and does not suffer from an intellectual
disability. Both Dr. Krop and Mr. Norgard describe Petitioner as lucid and
well able to consult with counsel. In fact, Mr. Norgard said that Petitioner
told him, in no uncertain terms, he did not want Mr. Norgard to prepare and
file a habeas petition for the federal court. Petitioner repeated this directive
when Mr. Norgard made an additional inquiry after the mandate came down.
No evidence has been presented that Petitioner changed his mind during the
one-year limitation period or that he contacted Mr. Norgard and told him to
seasonably file a petition in the federal court.
Based on all of the above, the Court finds Petitioner is not entitled to
equitable tolling of the period from the date mandate issued, on April 13, 2006,
until the one-year period expired 112 days later, on August 3, 2006. Petitioner
was not diagnosed as suffering from schizophrenia or any other major mental
illness.

He was not rendered incompetent or insane during the relevant

period. He was certainly able to communicate with counsel, as evidenced by
Mr. Norgard’s testimony and the assessment of medical professionals who
found Petitioner sane, competent, lucid, and able to assist counsel. Although
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Petitioner seeks an additional evidentiary hearing, EH at 130, an additional
evidentiary hearing is unnecessary in light of the comprehensive nature of the
records received by the Court concerning Petitioner’s mental health
assessment and treatment, the extreme length of time that has passed, and
the fact that the record before the Court fails to exhibit evidence supporting
the claim for equitable tolling.
No exceptional circumstances have

been shown.

The Court

acknowledges that Petitioner has long-standing mental health issues, but he
has failed to show a causal connection between his mental condition and his
ability to timely file, particularly in light of the fact that Petitioner was
provided with experienced counsel to educate and assist him. Counsel was
well-versed in the case and ready to assist Petitioner in the filing of a federal
petition. In addition, the record is clear that Petitioner did not suffer from a
mental illness that severely impaired Petitioner’s ability to effectively assist
and communicate with his counsel. Petitioner has failed to show his mental
condition prevented communication with counsel or prevented Petitioner from
understanding the process and the proceedings.

Petitioner’s showing of

mental deficiencies or impairments throughout most of his life is not sufficient
to justify equitable tolling.

Petitioner’s “mixed personality disorder” with

avoidant, schizoid, paranoid and borderline features or “schizoid personality
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disorder,” combined with impaired frontal lobe functions did not render
Petitioner incapable of communicating with Mr. Norgard or in understanding
the proceedings and the consequences of Petitioner’s choices. Indeed, even
though Petitioner decided not to pursue additional post-conviction remedies,
counsel enjoyed Petitioner’s “effective participation” as demonstrated by
Petitioner’s communications with counsel.
In conclusion, Petitioner has not presented any justifiable reason why
the dictates of the one-year limitation period should not be imposed upon him.
Petitioner has failed to show Mr. Norgard engaged in any serious attorney
misconduct qualifying as an extraordinary circumstance.

There was no

attorney abandonment during the relevant period and no scheme adopted by
Mr. Norgard to avoid clemency review or a unilateral decision on his part to
forego federal habeas relief.
The record shows, during the relevant period, Petitioner was not
suffering from any major mental illness, like psychosis or schizophrenia, that
caused him to miss the filing deadline. His diagnosed mental impairment was
not so profound and debilitating that he was unable to communicate with his
counsel or unable to understand and appreciate the law and proceedings.
Indeed, the record demonstrates Petitioner understood his legal options and

59

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he had the lucidity necessary to effectively pursue legal redress with the aid of
counsel. The record also shows he was not insane at critical times.
In sum, the record demonstrates Petitioner was not mentally incapable
of filing a federal habeas corpus petition in a timely manner during the
pertinent time period, until the limitation period expired, particularly in light
of the fact that he had the assistance of counsel. In sum, the mental illness
Petitioner suffered was not so profound and debilitating that he would have
been unable to file a timely habeas petition, given his limitations.
For purposes of this opinion, the Court assumes due diligence, but the
Court finds Petitioner has not shown he is entitled to extraordinary relief.
Indeed, the Court finds Petitioner has not shown extraordinary circumstances
stood in his way and prevented him from timely filing a federal petition.
Equitable tolling is a remedy that should be used sparingly, and Petitioner has
failed to show an extraordinary circumstance and he has not met the burden
of showing that equitable tolling is warranted.
This is not to say that the Court is not disturbed by this result, but this
is the state of the law. Petitioner is sentenced to death and is barred from
seeking federal relief due to the AEDPA one-year limitation period.
Petitioner had qualified counsel for the purpose of investigating, preparing,
and timely filing a federal habeas corpus petition. This is not a case where
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the petitioner’s attorney simply failed to meet the deadlines due to negligence,
miscalculation, abandonment, professional misconduct, or otherwise. Here,
Petitioner directed his attorney not to file a federal petition and the attorney
was certain Petitioner would be found competent, as he had been found in the
past. At the time, Petitioner was not delusional or hallucinating. Nothing
external to Petitioner, something that cannot be fairly attributed to him, was
at play. Thomas, 992 F.3d at 1181. As such, Petitioner does not qualify for
equitable tolling as he has failed to satisfy one of the two-pronged
requirements, the extraordinary circumstances prong.
Finally, Petitioner does not assert or demonstrate that he has new
evidence establishing actual innocence. He has not pointed to any evidence
demonstrating it is more likely than not that no juror, acting reasonably, would
have found him guilty beyond a reasonable doubt in light of new evidence. See
McQuiggan v. Perkins, 569 U.S. 383, 395 (2013) (restricting the miscarriage of
justice exception to a severely confined category of cases in which new evidence
shows it is more likely than not that no reasonable juror would have convicted
the petitioner).12
To the extent this Court should broadly construe the Petition as claiming legal innocence,
not factual innocence, that will not save the day. Although Petitioner claims mental illness
and frontal lobe impairment, Petitioner is required to show factual innocence, not mere legal
insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). See Rozzelle v. Sec’y Fla.
Dep’t of Corr., 672 F.3d 1000, 1012-13 (11th Cir. 2012) (per curiam) (factual innocence
12

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Focusing its inquiry on the circumstances surrounding Petitioner’s late
filing of the Petition, Petitioner is not excused from complying with the time
constraints for filing a federal petition. He has not presented any justifiable
reason why the dictates of the one-year limitation period should not be imposed
upon him and he has failed to demonstrate he is entitled to equitable tolling.
Furthermore, he has made no attempt to make a credible showing of actual
innocence by offering new evidence that is directly probative of his innocence.
Because Petitioner has not shown an adequate reason why the dictates of the
one-year limitation period should not be imposed upon him, the Court will
dismiss the Petition (Doc. 15) and the case with prejudice pursuant to 28 U.S.C.
§ 2244(d) as untimely.
V.

Motion for Protective Order

Petitioner’s Notice of Intent to Request Redaction of October 21, 2021
Evidentiary Hearing Transcript and Opposed Motion for Protective Order
(Motion) (Doc. 69) is pending before the Court. Petitioner seeks redaction of
some of the transcript and further requests a protective order that an
unredacted version of the transcript be filed under seal, accessible to the
parties and this Court. Motion at 1. He argues that allowing the evidentiary

required). Petitioner has not made a credible showing of actual innocence.

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hearing transcript extensively discussing the content of the Exhibits 6, 7, and
8, currently under seal, to be placed on the record without redaction, would
submit Petitioner to an invasion of privacy, embarrassment, and mental
anguish.

Id. at 2.

The Court has carefully reviewed the content of the

portions of the transcript Petitioner’s seeks to have redacted. See id. at 2-3.
The Court finds the Motion is due to be denied. An explanation follows.
The law is clear, “a protective order may be issued for good cause to
protect a person from annoyance, embarrassment, [and] oppression[.]” Thomas
v. Seminole Electric Coop. Inc., No. 8:16-CV-3404-T-35JSS, 2017 WL 2447722,
at *2 (M.D. Fla. June 6, 2017) (not reported in F. Supp.).

In this case,

however, Petitioner placed his mental health at issue by alleging that he is
entitled to equitable tolling of the AEDPA limitation period because his mental
illness satisfies the diligence and extraordinary circumstances prongs of the
two-pronged test.

Therefore, Petitioner has waived any privilege in any

confidential materials related to his mental health as these matters are
relevant to Petitioner’s contention that he is entitled to equitable tolling
because he allegedly suffers from a major mental illness.
Also of note, the portions of the October 21, 2021 evidentiary hearing
transcript Petitioner requests to be redacted concern matters revealed and
discussed at length in the Petition (Doc. 15), the Appendix Record of State
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Proceedings (Doc. 32), and in published decisions. In fact, Petitioner publicly
articulated most, if not all of his claimed mental deficits in his Petition.
As previously noted, the Court found it necessary to reference some of
the content of Petitioner’s exhibits placed under seal to adequately address and
explain its decision as to whether Petitioner satisfied the test to qualify for
equitable tolling. Indeed,
“‘[c]ourts have routinely held that, by putting one's
medical condition at issue in a lawsuit, a plaintiff
waives any privilege to which he may have otherwise
been entitled as to his privacy interests in his medical
records.’” Lozman v. City of Riviera Beach, No. 0880134-Civ-Hurley/Hopkins, 2014 WL 12692766, at *1,
2014 U.S. Dist. LEXIS 195855, at *3-4 (S.D. Fla. May
2, 2014) (quoting Stogner v. Sturdivant, 2011 U.S.
Dist. LEXIS 107571, 2011 WL 4435254, *5 (M.D. La.
Sept. 22, 2011)); Barlow v. Dupree Logistics, LLC, No.
1:14-BE-1808-E, 2015 WL 4646812, at *8, 2015 U.S.
Dist. LEXIS 102371, at *24 (N.D. Ala. July 5, 2015)[.]
Oldaker v. Giles, No. 7:20-CV-00224 (WLS), 2021 WL 3412551, at *3 (M.D. Ga.
Aug. 4, 2021), reconsideration denied, 2021 WL 3779837 (M.D. Ga. Aug. 25,
2021).
It may be argued that this case is different because it is a criminal case,
not a civil case for damages. But, in this instance, the medical records are
directly relevant to the issue at bar and Petitioner put the matter at issue
through the filing of his Petition. Furthermore, almost all of the sensitive and
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private information in play is already a matter of public record. See United
States v. Bradley, No. 405CR059, 2007 WL 1703232, at *5 (S.D. Ga. June 11,
2007) (not reported in F.Supp.2d) (discussing privacy interests after a criminal
trial).
Ordinarily, in criminal cases, there is a “presumption of openness[.]” Id.
The Court finds, however, Petitioner’s Exhibits 6, 7, and 8 shall remain
under seal. As many of the additional details contained in Exhibits 6, 7, and
8, are not relevant to the parties’ contentions, the Court finds it is unnecessary
to reveal the underlying details of Petitioner’s mental health assessment and
treatment contained in those exhibits, except those which have already been
found to be relevant and necessary for purposes of rendering this Court’s
decision. See Order (Doc. 62).
In conclusion, the Court denies the request for proposed redactions of the
October 21, 2021 evidentiary hearing transcript and denies the request for a
protective order.
Accordingly, it is now
ORDERED AND ADJUDGED:
1.

Petitioner’s Motion (Doc. 69) is DENIED.

2.

The Clerk is directed to maintain Petitioner’s Exhibits 6, 7,

and 8 under seal.
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3.

The Petition for Writ of Habeas Corpus (Doc. 15) and the case are

DISMISSED with prejudice.
4.

The Clerk shall enter judgment dismissing the Petition (Doc. 15)

with prejudice and dismissing the case with prejudice.
5. The Clerk shall close the case.
6.

If Petitioner appeals the dismissal of the Petition for Writ of

Habeas Corpus (Doc. 15), 13 the Court denies a certificate of appealability.
Because this Court has determined that a certificate of appealability is not
warranted, the Clerk shall terminate from the pending motions report any
motion to proceed on appeal as a pauper that may be filed in this case. Such
termination shall serve as a denial of the motion.
DONE AND ORDERED at Jacksonville, Florida, this 17th day of
November, 2021.

This Court should issue a certificate of appealability only if a petitioner makes "a
substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make
this substantial showing, Petitioner "must demonstrate that reasonable jurists would find
the district court's assessment of the constitutional claims debatable or wrong," Tennard v.
Dretke, 542 U.S. 274, 282 (2004) (quoting 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, 335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880,
893 n.4 (1983)). Upon due consideration, this Court will deny a certificate of appealability.
13

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sa 11/8
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Counsel of Record

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