Benzant v. Florida Department of Corrections

Filing 17

ORDER denying 10 Respondent's Motion to Dismiss. Signed by Magistrate Judge Edwin G. Torres on 10/23/2017. (js02)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-20219-Civ-TORRES
SAMUEL BENZANT
Petitioner,
v.
JULIE L. JONES, as Secretary, Florida
Department of Corrections
Respondent.
___________________________________________/
ORDER DENYING RESPONDENT’S MOTION TO DISMISS
This matter is before the Court Julie L. Jones’s (“Respondent”) motion to
dismiss against Samuel Benzant (“Petitioner”) on the basis that the Petitioner’s
habeas petition is untimely.

[D.E. 10].

Petitioner responded to Respondent’s

motion on September 25, 2017 [D.E. 14] and supplemented his response on October
10, 2017 [D.E. 16] to which Respondent did not reply.
motion is now ripe for disposition.

Therefore, Respondent’s

After careful consideration of the motion,

response, the relevant authority, the record presented, and for the reasons discussed
below, Respondent’s motion is DENIED.

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I.

BACKGROUND

On January 19, 2016, Petitioner filed a petition for writ of habeas corpus
contesting his state court conviction for first degree murder and robbery with a
firearm. [D.E. 1]. Petitioner concedes that his petition is untimely, yet argues that
his prior attorney negligently failed to file a state postconviction motion before the
limitations period expired to file a federal habeas petition. As such, Petitioner seeks
relief – under the doctrine of equitable tolling – to allow his petition to be considered
on the merits.
In September 2010, Petitioner claims that he retained attorney Andrew Rier
(“Mr. Rier”) to file a state postconviction motion on his behalf.

Mr. Rier was

retained one month before Petitioner’s conviction became final and thirteen months
before Petitioner’s § 2254 time period expired.

Petitioner argues that he

consistently requested Mr. Rier to timely file a state postconviction motion to
preserve his federal habeas rights, but that Mr. Rier allegedly failed to do so.1 More
specifically, Petitioner contends that on December 12, 2010 he sent a letter to Mr.
Rier referencing his federal habeas rights. Petitioner also sent a letter on February
13, 2011 stating: “I have a few questions in reference to my case. The first one is I
am under the impression that I had one year after my mandate to file a federal
ha[beas]. Is this the same as a[] habeas corpus?” [D.E. 15-1].
Petitioner has copies of the letters that he sent to Mr. Rier that appear to
indicate that he requested Mr. Rier to file a state postconviction motion much earlier
than when it was ultimately filed so as to preserve his rights to proceed in federal
court if necessary.
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After Mr. Rier received the February 13, 2011 letter, Mr. Rier scheduled a
telephone conference with petitioner. Mr. Rier purportedly explained that – as long
as the state postconviction motion is timely filed within two years of the state
appellate court’s mandate, and if the state postconviction motion is denied and
affirmed on appeal – Petitioner would have one year from the date of the
postconviction appellate mandate to file a § 2254 petition. Petitioner claims that he
accepted Mr. Rier’s advice and therefore Mr. Rier did not file a state postconviction
motion until March 2012 – 18 months after he had been retained.
As a result of Mr. Rier’s delay, Petitioner’s § 2254 time period expired before
the state postconviction motion was filed. Petitioner claims that – had he known
that Mr. Rier was required to file a state postconviction motion by October 20, 2011 –
he would have retained new counsel or timely filed a pro se state postconviction
motion. In sum, Petitioner suggests that Mr. Rier’s erroneous advice and failure to
timely file Petitioner’s state postconviction motion – as requested – entitles
Petitioner to relief under the doctrine of equitable tolling and a consideration of his
habeas petition on the merits. See Holland v. Florida, 560 U.S. 631(2010).
II.

APPLICABLE PRINCIPLES AND LAW

“Equitable tolling is an extraordinary remedy which is typically applied
sparingly.” Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000) (citing Irwin v. Dept.
of Veterans Affairs, 498 U.S. 89, 96 (1990)). “The burden of proving circumstances
that justify the application of the equitable tolling doctrine rests squarely on the
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petitioner.”

San Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir. 2011).

In

satisfying this burden, a petitioner “must plead or proffer enough facts that, if true,
would justify an evidentiary hearing on the issue.” Hutchinson v. Florida, 677 F.3d
1097, 1099 (11th Cir. 2012). “And the allegations supporting equitable tolling must
be specific and not conclusory.” Id. As such, a petitioner is “entitled to equitable
tolling” only if he can show that “he has been pursuing his rights diligently,” and
“that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005) (citing Irwin, 498 U.S. at 96).
The determination of what satisfies an extraordinary circumstance is not
mechanical because the tradition in courts of equity is to “relieve hardships . . .
aris[ing] from a hard and fast adherence” to absolute legal rules. Hazel–Atlas Glass
Co. v. Hartford–Empire Co., 322 U.S. 238, 248 (1944). The Supreme Court’s “cases
recognize that equity courts can and do draw upon decisions made in other similar
cases for guidance, exercising judgment in light of precedent, but with awareness of
the fact that specific circumstances, often hard to predict, could warrant special
treatment in an appropriate case.” Holland, 560 U.S. at 632 (citing Coleman v.
Thompson, 501 U.S. 722, 753 (1991)).

Therefore, the determination of whether

equitable tolling applies is specific to the facts of each case because courts must
“exercise [their] equity powers . . . on a case-by-case basis.” Baggett v. Bullitt, 377
U.S. 360, 375 (1964).

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III.

ANALYSIS

Respondent’s motion to dismiss is aimed at Petitioner’s reliance on the
doctrine of equitable tolling. Respondent argues that Petitioner’s equitable tolling
claim is conclusory in nature and fails to demonstrate any entitlement for relief.
Respondent also suggests that Petitioner has failed to demonstrate that attorney
negligence is enough to trigger equitable tolling. See Downs v. McNeil, 520 F.3d at
1321–22, 1323 (11th Cir. 2008) (giving as an example of egregious misconduct
“outright willful deceit” for purposes of equitable tolling); see also, Roper v. Dep’t of
Corrs.,

434

F.

App’x

786

(11th

Cir.

2011)

(holding

that

“affirmative

misrepresentation by counsel” about the status of a motion may constitute
“extraordinary circumstances” justifying equitable tolling of habeas filing deadline).
Even if Petitioner is entitled to equitable tolling, Respondent demands that
the Petitioner file an amended habeas petition with specific references to how
equitable tolling applies to the facts presented. At the time Respondent filed her
motion, the letters referenced between Petitioner and Mr. Rier – allegedly
demonstrating attorney negligence – were not part of any court file and were
therefore unavailable. Hence, Respondent believes that it is impossible to respond
to Petitioner’s claim of equitable tolling without the production of all the letters
communicated between Petitioner and Mr. Rier.
Under 28 U.S.C. ' 2244(d)(1), federal habeas petitions must be filed within
one year of (1) the final judgment on direct review or the expiration of the time for
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seeking such review; (2) the removal of any state-imposed impediment that
unconstitutionally prevented the filing of such a petition; (3) the Supreme Court=s
announcement of a new, retroactive constitutional right, or; (4) the date when the
facts supporting the claim could have been discovered through due diligence.

See

28 U.S.C. ' 2244(d)(1)(A)B(D).

This time limitation is tolled while a state

post-conviction review is pending.

See 28 U.S.C. ' 2244(d)(2).

Here, the Florida Third District Court of Appeal denied Petitioner’s direct
appeal and motion for rehearing on July 12, 2010 – meaning Petitioner’s conviction
became final on October 19, 2010 which is the last day Petitioner could have sought
review in the United States Supreme Court. See Hollinger v. Sec’y Dep’t of Corr.,
334 F. App’x 302, 303 (11th Cir. 2009) (“Under AEDPA, Hollinger’s conviction
became “final” on October 21, 2004-90 days after rehearing was denied on direct
appeal.”) (citing Bond v. Moore, 309 F.3d 770, 773-74 (11th Cir. 2002) (explaining
that a judgment becomes “final” on the date on which the U.S. Supreme Court issues
a decision on the merits of petitioner’s direct appeal or denies certiorari, or after the
expiration of the 90 days in which petitioner could file such a petition)).
In September 2010, Petitioner retained Mr. Rier – one month later and
thirteen months before Petitioner’s conviction became final.

Mr. Rier allegedly

advised Petitioner that as long as the state postconviction motion is timely filed
within two years of the state appellate court’s mandate – and if the state
postconviction motion is denied and if the denial is affirmed on appeal – then
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Petitioner will have one year from the date of the postconviction appellate mandate
to file a § 2254 petition. If true, Mr. Rier’s advice was obviously incorrect because
Mr. Rier was required to file the state postconviction motion by October 20, 2011 –
i.e. one year from the date Petitioner’s conviction became final.
In Holland v. Florida, the Supreme Court set forth a two-part test to
determine whether a petitioner is entitled to equitable tolling in a habeas case: (1)
the petitioner must have been diligently pursuing his rights, and (2) some
extraordinary circumstance must have stood in the way of a timely filing.

See

Holland, 560 U.S. at 649. While the first prong of the test is clearly defined as
“reasonable diligence,” the Court has purposefully left open the meaning of what
constitutes an extraordinary circumstance. The Court has only determined that “a
garden variety claim of excusable neglect,” Irwin, 498 U.S. at 96, or a simple
“miscalculation” that leads to a lawyer missing a filing deadline does not warrant
equitable tolling. Lawrence v. Florida, 549 U.S. 327, 336 (2007). As a general rule,
“the ‘extraordinary circumstances’ standard applied in this circuit focuses on the
circumstances surrounding the late filing of the federal habeas petition, rather than
the circumstances surrounding the underlying conviction.” Helton v. Secretary of
Dept. of Corrections, 259 F.3d 1310, 1314 (11th Cir. 2001); see also Drew v.
Department of Corrections, 297 F.3d 1278, 1286-87 (11th Cir. 2002).
The Supreme Court’s decision in Holland is instructive given the facts
presented.

In Holland, an attorney failed to timely file a habeas petition and
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appeared to have been unaware of the date on which the limitations period expired.
See Holland, 560 U.S. at 631. The Court found that ordinarily these two actions
might merely suggest simple negligence. Yet, the attorney in Holland committed
more than simple negligence when he failed to timely file a federal habeas petition
despite his client’s letters that emphasized the importance of doing so. The attorney
also (1) did not conduct the necessary research to file the petition, (2) failed to inform
the petitioner that the Florida Supreme Court had decided his case, and (3) failed to
communicate with his client for years:
[The lawyer] apparently did not do the research necessary to find out
the proper filing date, despite [the petitioner’s] letters that went so far
as to identify the applicable legal rules. [The lawyer] failed to inform
[the petitioner] in a timely manner about the crucial fact that the
Florida Supreme Court had decided his case, again despite Holland's
many pleas for that information. And [the lawyer] failed to
communicate with his client over a period of years, despite various pleas
from Holland that Collins respond to his letters.
Id. at 652.
The Court held that these failures violated the fundamental canons of
professional responsibility, “which require attorneys to perform reasonably
competent legal work, to communicate with their clients, to implement clients'
reasonable requests, to keep their clients informed of key developments in their
cases, and never to abandon a client.” Id. at 652-53 (citation omitted). Because
Holland wrote his attorney numerous letters seeking direction on his case, contacted
the state courts, state clerks, and the Florida State Bar, the Court determined that
he clearly met the diligence prong of equitable tolling. See Holland, 560 U.S. at 653
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(“[D]iligence required for equitable tolling purposes is reasonable diligence”)
(citations and quotation marks omitted); see also Smith v. Comm’r, Ala. Dep't of
Corr., 703 F.3d 1266, 1271 (11th Cir. 2012) (per curiam) (acknowledging petitioners
are not required “to exhaust every imaginable option, but rather to make reasonable
efforts” (internal quotation marks omitted)).
As for the extraordinary circumstance prong, the Court found that the
Eleventh’s Circuit rule that equitable tolling was only available if a petitioner offered
proof of bad faith, dishonesty, divided loyalty, or mental impairment was too rigid.
See Thomas v. Att’y Gen., Fla., 795 F.3d 1286, 1292 (11th Cir. 2015) (“‘[B]ad faith,
dishonesty, divided loyalty, [and] mental impairment’ . . . may . . . serve as
extraordinary circumstances that support a claim to equitable tolling.”) (quoting
Holland v. Florida, 539 F.3d 1334, 1339 (11th Cir. 2008)). While the Court held that
the Eleventh Circuit’s examples satisfied the standard for an extraordinary
circumstance, the Court determined that many other unforeseeable situations could
also meet that burden and entitle a petitioner to equitable tolling. See Holland, 560
U.S. at 650 (“The ‘flexibility’ inherent in ‘equitable procedure’ enables courts ‘to meet
new situations [that] demand equitable intervention, and to accord all the relief
necessary to correct . . . particular injustices.”’) (citation omitted).
Based on Holland, we cannot find – at this juncture – that the Petitioner is not
entitled to equitable tolling.

The letters attached in response to Respondent’s

motion to dismiss appear to indicate that Petitioner sought Mr. Rier’s assistance to
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preserve his federal habeas rights. The letters also give rise to the question of
whether Mr. Rier failed to do any research to determine the deadline for filing the
state postconviction motion and whether he, in some respects, abandoned his client.
And finally, the record shows that Mr. Rier gave Petitioner misinformation about
what was required to preserve Petitioner’s federal habeas rights.

When joined

together, it is certainly conceivable that Mr. Rier’s conduct meets the type of
“extraordinary circumstance” that was foreseen in Holland.
With respect to the due diligence prong, the letters establish that Petitioner
attempted to preserve his federal habeas rights on at least two (if not more) occasions
and that he wanted Mr. Rier to file a state postconviction motion that preserved his
ability to file a habeas petition in federal court.
constitute reasonable diligence.

This is more than enough to

See Holland, 560 U.S. at 653 (finding that a

petitioner is only required to exercise reasonable diligence, not maximum feasible
diligence). As such, we have no basis – without more – to determine conclusively
that Petitioner is not entitled to equitable tolling and therefore Respondent’s motion
to dismiss must be DENIED.2
IV.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that
Respondent’s motion to dismiss is DENIED.
Of course, the denial of Respondent’s motion to dismiss has no bearing on the
merits of the habeas petition. It merely means that we cannot determine at this
point that equitable tolling is unavailable and that Petitioner’s habeas should be
denied on the basis of timeliness.
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2

DONE AND ORDERED in Chambers at Miami, Florida, this 23rd day of
October, 2017.
/s/ Edwin G. Torres
EDWIN G. TORRES
United States Magistrate Judge

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