HOWELL v. CROSBY

Filing 49

CERTIFICATE OF APPEALABILITY. ORDER re 47 Request for COA filed by PAUL A HOWELL and 48 Response in Opposition to Request for COA filed by JAMES V CROSBY. Howell may appeal in forma pauperis and a Certificate of Appealability is issued. Signed by CHIEF JUDGE M CASEY RODGERS on 2/25/13. (tdg)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
PAUL A. HOWELL,
Petitioner,
v.

Case No.: 4:04-cv-299/MCR

MICHAEL D. CREWS, Secretary,
Florida Department of Corrections
Respondent.
____________________________________/
CERTIFICATE OF APPEALABILITY
On Saturday, the court denied Howell’s Emergency Motion For Relief From
Judgment (doc. 44 ). The court’s order did not address a certificate of appealability, and
Howell has now moved for the certificate in connection with his Notice of Appeal (doc. 47).
On consideration, the court finds that a Certificate of Appealability should issue.
As amended effective December 1, 2009, § 2254 Rule 11(a) provides that "[t]he
district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant," and if a certificate is issued "the court must state the specific
issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2)." A timely
notice of appeal must still be filed, even if the court issues a certificate of appealability. 28
U.S.C. § 2254 11(b).
The undersigned concludes that the following issue is debatable among jurists of
reason and adequate to deserve encouragement to proceed further: whether, on the facts
of this case, the Supreme Court’s decision in Holland v. Florida, ___ U.S. ___,130 S. Ct.
2549, 177 L.Ed.2d 130 (2010) is an extraordinary circumstance under Fed. R. Civ. P.
60(b)(6) sufficient to justify the reopening of the final judgment of dismissal in this case.
See Slack v. McDaniel, 529 U.S. 473, 483-84,120 S. Ct. 1595, 1603-04, 146 L. Ed. 2d 542
(2000) (explaining how to satisfy this showing). Although the State argues in its response
that the issue is not debatable among jurists of reason due to Hutchinson v State, 677 F.3d
1097 (11th Cir. 2012), Hutchinson did not address what level of attorney conduct beyond

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negligence in miscalculating a filing deadline would amount to an extraordinary
circumstance under Holland. Here, Howell argues that his state post conviction counsel
did more than simply miscalculate the filing deadline; according to Howell, she abandoned
him completely during the critical limitations period because her first communication with
him was only after the AEDPA filing deadline had already passed.1 No definitive guidance
was given in Hutchinson or in Banks v. Secretary of the Florida Department of Corrections,
2012 WL 4901162 (11th Cir. October 16, 2012) on this issue. Therefore, Hutchinson does
not foreclose a debate on the issue by jurists of reason, see Maples v. Thomas, ___ U.S.
___, 132 S.Ct. 912, 181 L.Ed.2d 807 (2012), and Howell should be granted leave to appeal
in forma pauperis on the issue.
Accordingly, Howell may appeal in forma pauperis and a Certificate of Appealability
is issued for appeal on the issue of whether the Supreme Court’s decision in Holland v.
Florida, ___ U.S. ___,130 S. Ct. 2549, 177 L.Ed.2d 130 (2010) is an extraordinary
circumstance under Fed. R. Civ. P. 60(b)(6) and the facts of this case sufficient to justify
the reopening of the final judgment of dismissal in this case.2
DONE AND ORDERED this 25th day of February, 2013.

s/

M. Casey Rodgers

M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE

1

Howell asserts the due diligence prong of Holland is satisfied because he did not have the m ental
capacity during the relevant tim e period to understand his rights and obligations under the AEDPA and
therefore was not able to act upon those rights and obligations in a tim ely m anner. Howell subm itted the
affidavits of two m edical doctors in support of this argum ent.
2

The State argues there is another com pelling reason to deny the m otion for COA and that is the
requirem ent under Eleventh Circuit Rule 22-4(a)(7) that the Court of Appeals “grant a tem porary stay pending
consideration of the m erits of the appeal if necessary to prevent m ooting the appeal.” The State insists Howell
should not be granted a stay, given his delay in filing his Rule 60(b) m otion. This is a convincing argum ent
on a m otion for stay, and indeed, Howell’s delay in filing his Rule 60(b) m otion was a basis for this court’s
denial of Howell’s m otion for stay of execution. However, the only issue before the court at this tim e is
whether a COA should issue, which provides no occasion for this court to consider a stay; the question of
whether a tem porary stay should be granted now rests with the Eleventh Circuit.
Case No.: 4:04-cv-299/MCR