HOWELL v. CROSBY

Filing 53

AMENDMENT TO 44 ORDER ON EMERGENCY MOTION FOR RELIEF FROM JUDGMENT. Signed by CHIEF JUDGE M CASEY RODGERS on March 1, 2013, nunc pro tunc the 23rd day of February 2013. (pmc)

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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.
/
AMENDMENT TO ORDER ON EMERGENCY
MOTION FOR RELIEF FROM JUDGMENT
The court hereby amends its order on Howell’s Emergency Motion For Relief From
Judgment (doc. 44), in furtherance of the appeal which is currently pending in the Eleventh
Circuit Court of Appeals. See U.S.C.A. No. 13-10766-P (Feb. 26, 2013).1 In its original
order denying Howell’s emergency motion for relief from judgment (doc. 36), the court
considered the lack of communication from Howell’s postconviction attorney, only in the
context of Howell’s due diligence. See Holland v. Florida, 130 S. Ct. 2549, 177 L. Ed.2d
130 (2010). However, in reviewing Howell’s application for a certificate of appealability
(doc. 47), particularly in light of the Supreme Court’s opinion in Maples v. Thomas, 132 S.
Ct. 912, 181 L. Ed.2d 807 (2012), it became apparent to the court that Howell’s attorney’s
conduct could relate both to the extraordinary circumstances prong and the due diligence
prong of equitable tolling under Holland.2 In its original order, the court found that Howell’s

1

The filing of a notice of appeal does not prevent a district court from taking action in furtherance of
an appeal. See Mahone v. Ray, 326 F.3d 1176, 1179 (11th Cir. 2003); U.S. v. Vernier, 152 F..App’x. 827,
834-35 (11th Cir. 2005)(“the supplem ental order was a perm issible act in aid of appeal precisely because it
facilitated, rather than interfered with the review of an appeal.”).
2

Howell cited Baldayaque v. U.S., 338 F.3d 145, 153 (2d Cir. 2003) in his em ergency m otion noting
that one of the factors to be considered is an attorney’s assurances that everything is being done on behalf
of the client. See doc. 36, p. 30, n.15.

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attorney’s erroneous assumption that an extension of time of the Rule 3.851 time period
would extend the AEDPA deadline amounted to garden variety neglect which does not
constitute an extraordinary circumstance entitling Howell to equitable tolling. See id. The
issue then is whether Howell’s attorney’s conduct beyond missing the filing deadline may
rise to the level of something more than garden variety negligence, thus constituting an
extraordinary circumstance entitling Howell to equitable tolling of his federal time limitations
period under AEDPA.3
In Holland, the Supreme Court made clear that although “exercise of a court's equity
powers ... must be made on a case-by-case basis,” Holland, 130 S. Ct. at 2563 (quoting
Baggett v. Bullitt, 377 U.S. 360, 375, 84 S. Ct. 1316, 12 L. Ed.2d 377 (1964)), an
attorney’s garden variety neglect in miscalculating the AEDPA filing deadline will not
provide a basis for tolling a statutory time limit. Id. at 2554.

Holland, however,

distinguished simple negligence from a claim of attorney abandonment, which the Court
found, if true, “would suffice to establish extraordinary circumstances beyond [petitioner’s]
control. Common sense dictates that a litigant cannot be held constructively responsible
for the conduct of an attorney who is not operating as his agent in any meaningful sense
of that word.” Id. at 2568 (ALITO, J., concurring).4 Following its Holland decision, the Court

3

Respondents cite Hutchinson v. Florida, 677 F.3d 1097 (11th Cir. 2012) in their response to
Howell’s Rule 60(b) m otion as controlling Eleventh Circuit precedent that garden variety negligence is not
sufficient to warrant equitable tolling. See doc. 40, p.15-16. In that case, however, the Eleventh Circuit denied
relief to Hutchinson based on his lack of due diligence in pursuing his federal rights, not the absence of
extraordinary circum stances. (“W e need not decide whether Hutchinson has established that an extraordinary
circum stance stood in the way of his m eeting the § 2244(d) filing deadline, because he has not carried his
burden of showing that he pursued his rights diligently.” Id. at 1103); see also Banks v. Sec’y, Fla. Dept. of
Corr., 2012 W L 4901162 (11th Cir. 2012), in which the Eleventh Circuit declined to decide whether Holland
is an extraordinary circum stance under Rule 60(b)(6)(holding that Banks's federal habeas petition was
untim ely, where period between second postconviction counsel's appointm ent and filing for federal habeas
exceeded one-year statute of lim itations and Banks was not diligent in pursuing his federal rights).
4

In Holland, 130 S. Ct. at 2564, the Suprem e Court recognized circuit court opinions holding that
unprofessional attorney conduct m ay, in certain circum stances, prove “egregious” and can be “extraordinary”
for purposes of equitable tolling, citing , e.g., Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001) (ordering hearing
as to whether client who was “effectively abandoned” by lawyer m erited tolling); Baldayaque v. U.S., 338 F.3d
145,152–153 (2d Cir. 2003) (finding that where an attorney failed to perform an essential service, to
com m unicate with the client, and to do basic legal research, tolling could, under the circum stances, be
warranted); Spitsyn v. Moore, 345 F.3d 796, 800–802 (9th Cir. 2003)(finding that “extraordinary
circum stances” m ay warrant tolling where lawyer denied client access to files, failed to prepare a petition, and
did not respond to his client's com m unications).
Case No. 4:04cv299/MCR

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addressed the issue of attorney abandonment as establishing cause for a procedural
default and stated, “[w]e agree that, under agency principles, a client cannot be charged
with the acts or omissions of an attorney who has abandoned him. Nor can a client be
faulted for failing to act on his own behalf when he lacks reason to believe his attorneys
of record, in fact, are not representing him.” Maples v. Thomas, supra, 132 S. Ct. at 924.
In Maples, the Court determined that petitioner had established cause for the procedural
default of his federal habeas claim where he had been abandoned by his counsel of record
with no warning. In that case, petitioner's out-of-state attorneys, who were on record as
representing him in postconviction proceedings, abandoned him without leave of court,
without informing him they could no longer represent him, and without securing any
recorded substitution of counsel. Id. at 924-26. Additionally, Maples’s local counsel, who
had agreed to serve only for purposes of enabling Maples’s out-of-state attorneys to
appear pro hac vice, did not act as Maples’s agent in any meaningful sense. Moreover,
because both the out-of-state attorneys and local counsel continued to be listed as
Maples’s attorneys of record on the court docket, Maples did not receive any notices from
the state court in his case, and thus had no warning that he needed to fend for himself.
Id. at 926-27. Thus, under Maples, a petitioner can establish cause for a procedural
default if he can demonstrate he was abandoned by his counsel and had no knowledge
of that fact.
In this case, Howell’s postconviction attorney was appointed to represent him on
December 21, 1998. She sent Howell a letter on July 12, 1999, informing him of the
deadline of his state postconviction appeal. See doc. 36, attachment M. Although it is not
entirely clear on the record, it appears this was the attorney’s first communication with
Howell, almost seven months after her appointment and two weeks after the deadline to
file Howell’s federal habeas petition had passed. The issue then is whether the attorney’s
lack of communication with Howell during the period between her appointment and the
expiration of the AEDPA deadline rises to the level of abandonment or other serious
misconduct sufficient to warrant equitable tolling of the deadline, especially when paired

Case No. 4:04cv299/MCR

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with the attorney’s failure to understand the procedures for preserving Howell’s federal
rights under the AEDPA.5
The court concludes that these circumstances do not rise to the level of
extraordinary under Holland and Maples because Howell’s attorney’s conduct, even that
related to her delay in contacting Howell, was based on her misunderstanding as to the
AEDPA filing deadline, which the Supreme Court has held does not rise to the level of an
extraordinary circumstance for equitable tolling. Holland, 130 S. Ct. at 2564; Lawrence v.
Florida, 549 U.S. 327, 336, 127 S. Ct. 1079, 166 L. Ed.2d 924 (2007). The record before
the court does not reflect any misconduct on Howell’s attorney’s part beyond her neglect
in miscalculating the AEDPA filing deadline; no serious instance of attorney misconduct
or abandonment has been shown. In fact, the record contains some suggestion, albeit
slight, that the attorney was preparing Howell’s state postconviction appeal both before and
after expiration of the AEDPA deadline.6 See doc. 36, attachment M. See Smith v.
Comm’r, Ala. Dept. of Corr., 703 F.3d 1266,1273 (11th Cir. 2012)(“Although the record
does not contain evidence of what communications took place between Smith and
Massey—neither Smith himself nor Massey submitted an affidavit in the district court—we
know that EJI informed Smith on July 26, 2001 that Massey had agreed to represent Smith
and would be contacting him. And Massey took steps on Smith's behalf, both before and
after the AEDPA limitations period ended.”). Accordingly, the court concludes that Howell
has failed to establish that his attorney’s conduct amounts to an extraordinary
circumstance for purposes of entitlement to equitable tolling.
DONE this 1st day of March 2013, nunc pro tunc the 23rd day of February 2013.

s/

M. Casey Rodgers

M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE

5

In his em ergency m otion, Howell argued that he should be excused from satisfying the due
diligence requirem ent as a result of his m ental incapacitation.
6

There is nothing in the record to reflect that Howell was aware that his attorney had been
appointed to represent him prior to her July 1999 letter.
Case No. 4:04cv299/MCR