Sallie (DEATH PENALTY) v. Humphrey
ORDER: The Court DENIES Sallies initial and renewed motions 52 159 for an order ruling his initial petition timely filed or, alternatively, granting an evidentiary hearing and GRANTS Respondent's motion to dismiss 4 . COA is DENIED. Ordered by U.S. District Judge MARC THOMAS TREADWELL on 7/15/2014. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
WILLIAM CARY SALLIE,
BRUCE CHATMAN, Warden,
CIVIL ACTION NO. 5:11-CV-75 (MTT)
Petitioner WILLIAM CARY SALLIE petitions the Court for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. For the reasons discussed below, Sallie’s original habeas
petition (Docs. 1, 9), as supplemented (Docs. 39, 66), and his amended habeas petition
(Doc. 67) are dismissed as untimely.1
In addition to his February 28, 2011 initial habeas petition, which he corrected on March 18,
2011, Sallie filed a supplemental petition on September 28, 2011, which he corrected on January
13, 2012, and filed an amended habeas petition on January 13, 2012. (Docs. 1, 9, 39, 66-67).
Sallie’s supplemental petition contains no constitutional claims but provides the facts upon which
Sallie bases his claim of equitable tolling. (Docs. 39, 66). Sallie has briefed the constitutional
claims from his original and amended habeas petitions that he wishes to pursue. (Docs. 99,
102). This Order dismisses as untimely Sallie’s original habeas petition, as corrected and
supplemented, and his amended habeas petition. Sallie also filed a second amended habeas
petition and a motion to amend his second amended habeas petition with a proposed third
amended habeas petition. (Docs. 122, 151-52). In an Order dated March 11, 2014, the Court
denied Sallie’s motion to amend his second amended habeas petition, finding the claim he wished
to assert in his proposed third amended habeas petition was not timely filed. (Doc. 158). The
Court denied Sallie’s motion to reconsider its March 11, 2014 Order but vacated the Order and
entered a new Order denying Sallie’s motion to amend dated July 15, 2014. (Doc. 169). In an
Order dated July 15, 2014, the Court denied the claims in Sallie’s second amended habeas
petition as both untimely and procedurally defaulted. (Doc. 170).
Sallie’s initial habeas petition was not timely filed. (Doc. 21). Raising issues of
deceit, disloyalty, breach of professional responsibility, abandonment, and a breakdown
of Georgia’s death penalty scheme, Sallie argues AEDPA’s 2 one-year statute of
limitations should be equitably tolled.3 (Docs. 52-1, 159).
Sallie is pursuing only unexhausted, procedurally defaulted claims from his original
and amended habeas petitions. (Docs. 99, 102). Initially, Sallie relied on Martinez v.
Ryan, 132 S. Ct. 1309 (2012), to provide cause to excuse the defaults. (Docs. 99, 102).
It seemed clear to the Court that Martinez did not apply in Georgia. See Hittson v.
Humphrey, 5:01-CV-384 (MTT), Doc. No. 102, (M.D. Ga. Sept. 25, 2012). Because of
this, the Court thought it would be judicially efficient to deny Sallie’s claims as
procedurally defaulted, rather than tackle the factually-sensitive issue of equitable tolling.
Therefore, the Court entered its September 6, 2012 Order (Doc. 103) denying without
prejudice Respondent’s motion to dismiss (Doc. 4) and Sallie’s motion for an order ruling
his initial habeas petition timely filed or, alternatively, granting an evidentiary hearing
Sallie’s renewed motion for an order ruling his initial petition timely filed or,
alternatively, granting an evidentiary hearing (Doc. 159), coupled with developments in
the law, namely Trevino v. Thaler, 133 S. Ct. 1911 (2013) and Cadet v. Fla. Dep’t of Corr.,
The Antiterrorism and Effective Death Penalty Act 1996, Pub. L. No. 104-132, 110 Stat. 1214
Sallie also claims the breakdown in Georgia’s death penalty scheme in 2003 through 2004
created an impediment to filing within the purview of 28 U.S.C. § 2244(d)(1)(B), and AEDPA’s
statute of limitations did not commence until this impediment was removed. (Docs. 52-1 at 8,
23-25; 159 at 2-3, 19-22).
742 F.3d 473 (11th Cir. 2014), have caused the Court to reconsider this approach. For
the reasons discussed below, the Court DENIES Sallies initial and renewed motions
(Docs. 52, 159) for an order ruling his initial petition timely filed or, alternatively, granting
an evidentiary hearing and GRANTS Respondent’s motion to dismiss (Doc. 4).
II. BACKGROUND AND PROCEDURAL HISTORY
The Georgia Supreme Court summarized the facts in Sallie’s direct appeal:
William Sallie and his wife, Robin, separated in December 1989 and Robin
sought a divorce. Sallie had been physically abusive to Robin during their
marriage and his striking her with a belt had precipitated the separation.
They had a two-year-old baby named Ryan. Robin and Ryan went to live
with her parents, John and Linda Moore, in their rural house in Bacon
County. Robin’s seventeen–year–old sister, April, and her nine-year-old
brother, Justin, also lived there. Shortly thereafter, under the pretense of
seeing Ryan at the Moores’ house, Sallie abducted Ryan and went to
Illinois, where he lived. However, an Illinois court awarded temporary
custody of Ryan to Robin, and she returned with him to the Moores’ house
in February 1990.
In March 1990, Sallie returned to Georgia and rented a mobile home in
Liberty County using the name Bill Simons. Also in March, he had a friend
purchase a nine millimeter pistol for him in Illinois. On March 28, 1990,
Sallie dressed in green camouflage and went to the Moores’ house at night;
he carried the pistol, a roll of duct tape, and four sets of handcuffs. At
approximately 10:00 p.m., April was talking to her boyfriend when the
phone line went dead. She did not think this was unusual and went to bed.
It was later discovered that Sallie had ripped the wires from the phone box
on the outside wall. At 12:45 a.m., after everyone inside was asleep, Sallie
pried open the back door and entered the house. He went immediately to
the master bedroom, flicked on the lights, and shot John and Linda Moore
as they lay in bed. John was struck by six bullets, including two that
damaged his heart. He tried to get out of bed, but he collapsed, fell on the
floor, and died. Linda was shot in the thumb, the shoulder, and both thighs.
Sallie then fled outside and reloaded. When Robin and April were in the
master bedroom trying to help their parents, Sallie fired two more shots
through the bedroom window, hitting no one. They doused the light and
pleaded with Sallie to let them get help for their parents. April tried to leave
the house to get help (the nearest neighbor was 1/4 of a mile away), but
Sallie confronted her on the porch and told her to stay in the house or he
would blow her head off. Sallie eventually re-entered the house and
handcuffed Justin and Linda, who was still bleeding from her wounds, to
each other and to a bed rail. He bound Robin and April to each other with
handcuffs and duct tape, and he abducted them to his Liberty County
mobile home where he raped them both. He left his two-year-old son in the
master bedroom. After a few hours, Linda and Justin managed to extricate
themselves from the bed rail and reach a neighbor, who summoned the
police. Sallie released Robin and April in Bacon County the night of March
29 after asking them not to press charges. He was arrested shortly
thereafter. The police found the murder weapon in his mobile home.
Sallie v. State, 276 Ga. 506, 506-07, 578 S.E.2d 444, 448-49 (2003).
On March 30, 1991, a jury convicted Sallie of malice murder, burglary, aggravated
assault, two counts of kidnaping with bodily injury, and possession of a firearm during the
commission of a felony. Sallie v. State, 269 Ga. 446, 446 n.1, 499 S.E.2d 897, 898 n.1
(1998). The jury recommended death for the murder conviction. Id. At trial, Sallie was
represented by Earl McRae and Wendell Boyd English. Id. at 447, 499 S.E.2d at 898.
On direct appeal, Sallie was represented by Palmer Singleton and Christopher Johnson,
both with the Southern Center for Human Rights (“Southern Center”). Id. at 446, 499
S.E.2d at 898. The Georgia Supreme Court reversed Sallie’s convictions “[b]ecause one
of [his] trial lawyers was laboring under a conflict of interest” and remanded the case for a
new trial. Id.
On June 26, 2000, a grand jury again indicted Sallie, this time for malice murder,
felony murder, burglary, aggravated assault, two counts of kidnaping with bodily injury,
and possession of a firearm during the commission of a felony. Sallie, 276 Ga. at 506
n.2, 578 S.E.2d at 448 n.2. Johnson and Singleton continued to represent Sallie. (Doc.
42 at 2).
On February 10, 2001, six days before the start of voir dire, Johnson, Singleton,
and Sallie entered into an Agreement on Legal Representation (“Agreement”), which
Because William Sallie has agreed to allow the use of the life without parole
third sentencing option at his retrial, Christopher Johnson and Palmer
Singleton agree to continue to represent William Sallie, even if he receives
a sentence other than death, through direct appeals, through state and
federal habeas, and at any subsequent re-trial, even if the charges at
subsequent re-trials do not carry a possible death sentence. We also
agree that Christopher Johnson and Palmer Singleton will continue to
represent William Sallie, if he so desires, for the rest of his life.
(Doc. 40-1) (emphasis added).
On March 5, 2001, a jury found Sallie guilty and recommended a sentence of
death for the malice murder charge. Sallie, 276 Ga. at 506 n.2, 578 S.E.2d at 448 n.2.
On April 3, 2001, Sallie filed a motion for new trial, which was denied on June 17, 2002.
(Docs. 68-8 at 109; 68-9 at 62).
Johnson and Singleton continued to represent Sallie in his direct appeal. The
Georgia Supreme Court affirmed Sallie’s conviction and sentence on March 24, 2003.
Sallie, 276 Ga. at 506, 578 S.E.2d at 448. The United States Supreme Court denied
Sallie’s petition for certiorari on October 6, 2003. Sallie v. Georgia, 540 U.S. 902 (2003).
Sallie petitioned for rehearing and that petition was denied on December 8, 2003. Sallie
v. Georgia, 540 U.S. 1086 (2003). On December 10, 2003, the Georgia Supreme Court
transmitted the remittitur to the trial court. (Doc. 8 at 12).
After December 10, 2003, but before January 2004, Johnson notified Sallie that he
and Singleton could no longer represent him. (Docs. 42 at 5; 45 at 2; 99 at 16).
According to Sallie, they informed him he would need to raise ineffective assistance of
counsel claims during his state and federal habeas proceedings, and they could not raise
these claims against themselves. (Doc. 42 at 5).
Sallie, proceeding pro se but with substantial assistance from the Georgia
Resource Center, filed his state habeas corpus petition in the Superior Court of Butts
County on October 14, 2004. (Doc. 72-18 at 6). According to a footnote in the petition
Mr. Sallie files his state petition for writ of habeas corpus at this time so as to
comply with the privisions [sic] of ___ Because the Georgia Resource
Center cannot competently and thus, ethically, undertake the
representation of more capital habeas petitioners at this time, Mr. Sallie files
this petition pro se…. However, Mr. Sallie requests that copies of any
pleadings and orders in his case be served on the Georgia Resource
Center … so that it can effectively carry out its duty of monitoring the case.
(Doc. 72-18 at 6) (The blank represents a gap in the original).
After first granting the Georgia Resource Center’s motion to be served with all
pleadings and orders, the state habeas court reconsidered and denied the request finding
the Georgia Resource Center was neither a party to the case, nor counsel to Sallie.
(Doc. 72-24). The Georgia Resource Center is first shown as counsel of record in an
order dated April 25, 2005. (Doc. 72-26). Following an evidentiary hearing on April 19
and 20, 2007, the state habeas court denied Sallie’s petition in an order dated June 22,
2009. (Docs. 73-20 to 83-8, 84-6). On January 14, 2011, the Georgia Supreme Court
denied Sallie’s application for certificate of probable cause to appeal. (Doc. 84-12).
The Georgia Supreme Court issued its remittitur of the judgment to the trial court on
February 7, 2011.4 (Doc. 160 at 7).
Still represented by the Georgia Resource Center, Sallie filed his federal habeas
corpus petition on February 28, 2011.5 (Doc. 1). On March 1, 2011, Respondent
The Court cannot locate verification of this date in the record submitted by Respondent or the
exhibits submitted by Sallie. Sallie provided this date in his corrected supplemental petition and
one of his briefs, and Respondent has not disputed the date. (Docs. 66 at 71; 160 at 7, 17).
Sallied filed a corrected petition on March 18, 2011, which corrected a factual error in one
paragraph of the original petition. (Doc. 9).
moved to dismiss the petition as untimely. (Doc. 4). The Court agreed that Sallie did
not timely file his federal habeas petition but did not dismiss the petition because further
development of the record was needed to determine whether Sallie was entitled to
equitable tolling of the statute of limitations. (Doc. 21).
Due to a conflict of interest,6 the Court allowed the Georgia Resource Center to
withdraw from the case on June 17, 2011. (Docs. 24, 25). Sallie’s current counsel,
Joseph J. Perkovich, who filed a notice of appearance on May 18, 2011, and John R.
Martin, were appointed as counsel under 18 U.S.C. § 3599 on April 4, 2012. (Docs. 18,
On July 26, 2011, Sallie was ordered to supplement his petition to state with
particularity the facts upon which he based his claim of equitable tolling. (Doc. 28). He
filed a supplemental petition7 and moved for an order ruling his habeas petition timely
filed or, alternatively, granting an evidentiary hearing. (Docs. 39-53). Respondent filed
an answer to the supplemental petition. (Doc. 55). On November 1, 2011, the Court
entered an Order withholding ruling on both Respondent’s motion to dismiss the petition
and Sallie’s motion for an order ruling his initial habeas petition timely filed or,
alternatively, granting an evidentiary hearing. (Docs. 4, 52, 58). The Court ordered
Sallie to file an amended petition alleging every previously unalleged constitutional error
and ordered Respondent to file an answer in accordance with Rule 5 of the Rules
Governing Section 2254 Cases in the United States District Courts. (Doc. 57). Sallie
The conduct of Georgia Resource Center attorneys would be at issue in determining whether
equitable tolling applied.
Sallie filed a corrected supplemental petition on January 13, 2012, which corrected citations to
the record and typographical errors. (Doc. 66).
filed his amended petition, and Respondent filed an answer and an addendum to his
answer. (Docs. 67-87).
In a February 14, 2012 scheduling order, which was amended on April 16, 2012,
the Court ordered Sallie to brief all of the claims from his original and amended habeas
petitions that he wished to pursue. (Docs. 92, 98). The Court informed Sallie that any
issue or argument not raised in the briefs would be considered abandoned. (Doc. 92).
Respondent was ordered to respond to all issues raised by Sallie in his brief, including
any discovery requests, requests for evidentiary hearings, and issues related to
exhaustion and procedural default. (Doc. 92). Both parties complied. (Docs. 99,
At that point, the Court determined, based on the law at the time, that Sallie raised
“significant issues regarding whether the one year limitations period should be equitably
tolled, issues that almost certainly require an evidentiary hearing to resolve.” (Doc. 103
at 2). The Court concluded “that it would be judicially efficient to review the merits of
Sallie’s claims, including exhaustion or procedural default issues, before attempting to
determine the timeliness issue.”8 (Doc. 103 at 2). Therefore, in an Order dated
September 6, 2012, the Court denied without prejudice both Respondent’s motion to
dismiss Sallie’s petition as untimely and Sallie’s motion for an order ruling his initial
habeas petition timely filed or, alternatively, granting an evidentiary hearing. (Doc. 103
This over Respondent’s objection that the Court could not reach the merits until it had resolved
the statute of limitations issue. The Court disagreed. Clearly, there is no jurisdictional bar to the
Court resolving a case on the merits rather than ruling on a statute of limitations defense. Day v.
McDonough, 547 U.S. 198, 205 (2006); Lambrix v. Singletary, 520 U.S. 518, 523-24 (1997)
(explaining that procedural bars should normally be resolved first, but judicial economy may
dictate ruling on the merits first if the procedural bar involves complicated issues). But, as
discussed below, subsequent legal developments have led the Court to return to the statute of
Before the Court entered an order addressing the claims raised in Sallie’s briefs,
he raised additional issues. On February 13, 2013, Sallie requested $10,000.00 to
obtain investigative services to explore allegedly newly-discovered claims of juror bias
and misconduct.9 (Doc. 116). The Court allowed $7,500.00. (Doc. 121). Following
investigation, Sallie filed a second amended habeas petition raising claims of juror bias
and misconduct, and he moved to stay federal proceedings while he exhausted those
claims in state court. (Docs. 122-37). This Court ruled that Sallie’s new claims were
procedurally defaulted and denied his motion to stay on August 6, 2013. (Docs. 146,
On August 7, 2013, Sallie moved for leave to amend his second amended petition
to add a new claim of ineffective assistance of his motion for new trial counsel based on
their failure to investigate and discover the juror bias claims.10 (Docs. 151-52). Sallie
claimed his third amended petition was timely filed pursuant to 28 U.S.C. § 2244(d)(1)(D),
which provides that AEDPA’s one-year statute of limitations begins to run from “the date
on which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D); (Doc. 152
at 1). Respondent opposed Sallie’s motion not on the grounds that his newly asserted
ineffective assistance claim was untimely but, rather, because it was procedurally
defaulted. (Doc. 153).
This was after Sallie filed a January 7, 2013 motion for leave to proceed ex parte and under seal
regarding his application for funds for investigative services, which the Court denied on February
7, 2013. (Docs. 106, 114)
In other words, Sallie converted his juror bias claim into an ineffective assistance of counsel
On March 11, 2014, the Court denied Sallie’s motion for leave to amend his
second amended petition on the grounds of futility; the claim he wished to assert in his
third amended petition was time-barred. (Doc. 158). On March 25, 2014, Sallie asked
the Court to reconsider, contending, inter alia, that the Court should not have found his
claim untimely when the Respondent had not opposed his claim on that ground. (Doc.
160). Respondent opposed the motion. (Doc. 162). This Court’s local rules ordinarily
do not allow a party moving for reconsideration to file a reply brief, but to give Sallie the
opportunity to adequately address the timeliness issue, the Court allowed him to reply
and granted his request for oral argument. (Doc. 164). On July 15, 2014, the Court
denied Sallie’s motion for reconsideration, but vacated its initial Order denying leave to
amend and entered a new Order addressing all of Sallie’s contentions. (Doc. 169).
Also on July 15, 2014, the Court dismissed Sallie’s second amended habeas petition
because the claims raised were both untimely and procedurally defaulted. (Doc. 170).
On March 25, 2014, Sallie renewed his motion for an order ruling initial habeas
petition timely filed or, alternatively, granting an evidentiary hearing. (Doc. 159).
A. Sallie’s underlying constitutional claims
In response to the Court’s scheduling orders, (Docs. 92, 98), which ordered Sallie
to brief all claims from his original and amended habeas petitions that he wished to
pursue, Sallie raised only two claims, both of which he said were new and unexhausted.
(Docs. 99 at 44-47; 102 at 4-6).
The first claim involves trial counsel’s failure to negotiate a plea agreement. Sallie
acknowledges that the state habeas court ruled on the merits of his claim that “[c]ounsel
failed to adequately take steps to negotiate a plea agreement with the district attorney
after the district attorney broached the subject and offered to negotiate.”11 (Docs. 9 at
10; 99 at 46-48). However, Sallie claims his Agreement with trial counsel and the facts
surrounding its creation, which he says were suppressed during direct and collateral
review in the state courts, transformed this claim from exhausted to unexhausted.
(Docs. 40-1; 99 at 46-54, 63-73). His second unexhausted claim is that trial counsel’s
misconduct and breach of their fiduciary duties in connection with the Agreement caused
him to be denied counsel at a critical stage in his case and manufactured a conflict of
interest due to counsel’s professional and personal interests. (Doc. 99 at 73-77).
Sallie acknowledges these claims are unexhausted and procedurally defaulted but
argues that ineffective assistance of state habeas counsel provides the cause necessary
to excuse the default. (Docs. 99 at 41-47; 102 at 6-7). At the time the parties briefed
these issues and at the time of the Court’s September 6, 2012 Order, Coleman v.
Thompson, 501 U.S. 722 (1991) and Martinez v. Ryan, 132 S. Ct. 1309 (2012) provided
the applicable law regarding whether ineffective assistance of post-conviction counsel
could provide cause to overcome a procedurally defaulted ineffective assistance of trial
counsel claim. In Coleman, the Supreme Court held that counsel’s errors in
post-conviction proceedings do not qualify as cause for a default. 501 U.S. at 754-55.
But in Martinez, the Court recognized a “narrow exception” and held that inadequate
assistance of post-conviction counsel may establish cause for a procedurally defaulted
“substantial” ineffective assistance of trial counsel claim if state law barred the prisoner
Sallie advances no arguments regarding “the exhausted, old version of his ineffective
assistance of counsel claim in connection to District Attorney Currie’s failed attempt to negotiate a
plea with trial counsel on the eve of trial.” (Doc. 102 at 4) (emphasis in original). Instead, his
briefs address only the “transformed and new claims.” (Doc. 102 at 4). Respondent addresses
Sallie’s exhausted ineffective assistance claim at length in his brief and argues any new claims
are procedurally defaulted. (Doc. 101)
from raising the claim on direct appeal. 132 S. Ct. at 1315, 1318-20.
Georgia law has never barred a defendant from raising a claim of ineffective
assistance of trial counsel on direct appeal. Thus, it appeared Martinez would not save
Sallie’s petition, and the Court could simply deny his two unexhausted ineffective
assistance of trial counsel claims as procedurally defaulted.12 Therefore, the Court
entered its September 6, 2012 Order finding it judicially efficient to review the merits of
Sallie’s claims, including procedural default, instead of determining whether he was
entitled to equitable tolling for his untimely federal habeas petition. (Doc. 103).
However, following entry of the September 6, 2012 Order, but before any order
dismissing Sallie’s claims as procedurally defaulted, the Supreme Court decided Trevino
v. Thaler, 133 S. Ct. 1911 (2013). The Court extended Martinez to situations in which
state law does not expressly require a prisoner to raise his claim of ineffective assistance
of trial counsel in post-conviction proceedings, but the “state procedural framework, by
reason of its design and operation, makes it highly unlikely in a typical case that a
defendant will have a meaningful opportunity to raise a claim of ineffective assistance of
trial counsel on direct appeal.” Id. at 1921. While it seemed clear the narrow exception
to Coleman announced in Martinez would not apply to Georgia’s criminal law procedures,
Trevino’s application is less clear and the Eleventh Circuit has not yet addressed the
Although he requested one, it did not appear that Sallie would be entitled to an evidentiary
hearing. (Doc. 99 at 78). He would have to show cause and prejudice to overcome procedural
default before the Court could allow a hearing for him to develop the factual basis of the claims.
See Kelley v. Sec’y for Dep’t of Corr., 377 F.3d 1317, 1342 (11th Cir. 2004) (explaining that a
habeas petitioner who raises an unexhausted claim must establish cause and prejudice to
overcome procedural default before the court can grant an evidentiary hearing). Without
Martinez, Sallie could not show cause, his claims would barred, and “the issue of factual
development [would be] moot.” Id.
In short, the approach that seemed “judicially efficient” prior to Trevino, no longer
seems so. Trevino, along with developments in the law regarding equitable tolling and
Sallie’s renewed motion to declare his petition timely, has led the Court to return to the
question of whether equitable tolling saves Sallie’s petition.
B. Equitable tolling
The Court previously ruled that Sallie had one year from the conclusion of direct
review—October 6, 2003—to either file his federal habeas petition properly file a state
habeas petition to toll the running of AEDPA’s statute of limitations. (Doc. 21 at 11). He
did neither; he filed his state habeas petition on October 14, 2004. (Doc. 21 at 2, 11).
Thus, absent equitable tolling, Sallie’s petition is time-barred.
Sallie claims that, despite his diligence, extraordinary circumstances beyond his
control prevented him from filing his state habeas petition prior to October 14, 2004.
(Doc. 52-1 at 7). He requests that the Court toll the period from the conclusion of direct
review, October 6, 2003, until October 12, 2004, “the date when the Georgia Resource
Center resumed its function within Georgia’s death penalty scheme.” (Doc. 159 at 5-6).
1. Equitable tolling standard
In Holland v. Florida, the Supreme Court held that “§ 2244(d) is subject to equitable
tolling.” 560 U.S. 631, 649 (2010). “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. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)). Decisions regarding
equitable tolling “must be made ‘on a case by case basis’ in light of ‘specific
circumstances.’” Hutchinson v. Florida, 677 F.3d 1097, 1098 (11th Cir. 2012) (quoting
Holland, 560 U.S. at 649-50). It is well settled that “[t]he burden of proving
circumstances that justify the application of the equitable tolling doctrine rests squarely on
the petitioner.” San Martin v. McNeil, 633 F.3d 1257, 1268 (11th Cir. 2011) (citations
omitted). A petitioner “must plead or proffer enough facts that, if true, would justify an
evidentiary hearing on the issue.”13 Hutchinson, 677 F.3d at 1099 (11th Cir. 2012) (citing
Chavez v. Sec’y. Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011)). [T]he
allegations supporting equitable tolling must be specific and not conclusory.” Id. While
equitable relief is flexible and the Court must consider all of the facts and circumstances,
it must “draw upon decisions made in other similar cases for guidance.” Holland, 560
U.S. at 650.
A habeas petitioner “is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in
his way’ and prevented timely filing.” Holland, 560 U.S. at 649 (quoting Pace v.
In his original and renewed motions for an order finding his habeas petition timely filed, Sallie
alternatively requested an evidentiary hearing. (Docs. 52; 159). If material facts are in dispute,
a habeas petitioner may be entitled to an evidentiary hearing. San Martin, 633 F.3d at 1271.
The Court “‘must consider whether such a hearing could enable an applicant to prove the
petition’s factual allegations, which, if true, would entitle the applicant to federal habeas relief.’”
Chavez, 647 F.3d at 1060 (quoting Schriro v. Landrigan, 550 U.S. 465, 474 (2007)). It is the
petitioner’s responsibility to plead or proffer enough facts that, taken as true, would justify a
hearing. Id. Furthermore, “[t]he allegations must be factual and specific, not conclusory.” Id.
at 1061. Sallie’s allegations regarding Singleton, Johnson, and the Georgia Resource Center
are specific. However, there is no need for an evidentiary hearing to allow Sallie to prove the
allegations because, even if true, they do not warrant equitable tolling. Id. at 1060. Sallie’s
allegations regarding the lack of access to legal assistants and the inadequate law library at
GDCP are more conclusory and, in many instances, directly contradicted by the record.
However, even if an evidentiary hearing allowed Sallie to prove the truth of these allegations, he
would not be entitled to equitable tolling because he has alleged no facts to show any nexus
between the inadequacies at the prison and his late filing. As the Eleventh Circuit recently
explained, “vague allegations about the existence of impediments, without more, or an argument
that fails to explain how such impediments prevented the timely filing of the petition, does not
establish extraordinary circumstances. Nor are they sufficient to warrant an evidentiary hearing.”
Lugo v. Sec’y, Fla. Dep’t of Corr., 750 F.3d 1198, 1209 (11th Cir. 2014) (citing Chavez, 647 F.3d
at 1060). For these reasons, the Court DENIES Sallie’s requests for an evidentiary hearing.
DiGuglielmo, 544 U.S. 408, 418 (2005)). “[A]n inmate bears a strong burden to show
specific facts to support his claim of extraordinary circumstances and due diligence.”
Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2008).
“The diligence required for equitable tolling purposes is reasonable diligence, not
maximum feasible diligence.” Holland, 560 U.S. at 653 (quotation marks and citations
omitted). The presence of extraordinary circumstances must be determined on a case
by case basis. Id. at 650. It is not enough for a habeas petitioner to show the existence
of an extraordinary circumstance, he must “show a causal connection between the
alleged extraordinary circumstance and the late filing of the petition.” San Martin, 633
F.3d at 1267 (citations omitted).
Lacking counsel in state collateral proceedings and being ignorant of the law are
not extraordinary circumstances. Coleman, 501 U.S. at 756-57 (no right to counsel in
state collateral proceedings); Rivers v. United States, 416 F.3d 1319, 1323 (11th Cir.
2005) (lack of education or “procedural ignorance” are not excuses for failing to file a
timely petition); Perez v. Florida, 519 F. App’x 995, 997 (11th Cir. 2013) (a pro se litigant is
deemed to know the one year statute of limitations). However, courts have recognized
that various conditions or actions, including attorney misconduct, may amount to
extraordinary circumstances. See Spottsville v. Terry, 476 F.3d 1241, 1245-46 (11th Cir.
2007) (court’s misleading instructions are extraordinary circumstances); Knight v.
Schofield, 292 F.3d 709, 710-11 (11th Cir. 2002) (extraordinary circumstances found
when Clerk of the Georgia Supreme Court sent notice of the court’s denial of certiorari to
the wrong inmate); Holland, 560 U.S. at 652-53 (attorney’s gross or egregious negligence
may amount to an extraordinary circumstance).
Determining when attorney misconduct qualifies as an extraordinary circumstance
“is a work in progress.” Cadet v Fla. Dep’t of Corr., 742 F.3d 473, 475 (11th Cir. 2014)
In Holland, the Supreme Court held that “a garden variety claim of excusable neglect,
such as a simple miscalculation that leads a lawyer to miss a filing deadline, does not
warrant equitable tolling,” but “far more serious instances of attorney misconduct” might.
Holland, 560 U.S. 651-52 (quotation marks and citations omitted).
Almost two years after Holland, the Court revisited the issue of when attorney
misconduct rises to the level of extraordinary circumstances beyond a petitioner’s control,
albeit in the context of establishing cause to excuse a procedural bar to federal habeas
relief. Maples v. Thomas, 132 S. Ct. 912 (2012). The Court reaffirmed the longstanding
rule that “‘under well-settled principles of agency law,’” a habeas petitioner “bears the risk
of negligent conduct on the part of his [attorney]” and is, therefore, bound by the
attorney’s failure to meet a deadline. Id. at 922 (quoting Coleman, 501 U.S. at 753-54).
“A markedly different situation is presented, however, when an attorney abandons his
client without notice, and thereby occasions the default.” Id. Because the
principal-agent relationship is severed, the attorney’s acts or omissions cannot be
attributed to the client. Id. at 923.
Then, in Cadet, the Eleventh Circuit “determine[d] the current test for equitable
tolling of the § 2244(d) statute of limitations period.” Cadet, 742 F.3d at 475. The Court
agreed the petitioner had acted diligently and assumed his post-conviction counsel was
grossly negligent.14 Interpreting Holland, “[i]n light of the Supreme Court’s Maples
Cadet had only five days after the state appellate court issued its mandate to file his federal
habeas petition. Cadet, 742 F.3d at 475. Cadet repeatedly told his post-conviction attorney,
Michael Goodman, that he did not think he had much time to file his federal habeas petition and
insisted that Goodman file the petition immediately after the state court denied relief. Id. at
decision,” the Court held “attorney negligence, however gross or egregious, does not
qualify as an ‘extraordinary circumstance’ for purposes of equitable tolling; abandonment
of the attorney-client relationship … is required.” Id. at 481. For attorney misconduct to
amount to an extraordinary circumstance, there must be an “absolute renunciation or
withdrawal, or a complete rejection or desertion of one’s responsibilities, a walking away
from a relationship.” Id. at 484 (citing Black’s Law Dictionary 2 (6th ed. 1990)).
2. Sallie has failed to show extraordinary circumstances prevented him
from timely filing.
Sallie claims that
his extraordinary circumstances concern essentially two overlapping
calamitous sequences. The first sequence concerns his justifiable reliance
upon his attorneys’ bad faith Agreement on Legal Representation, dated
February 10, 2001… and, well after the conclusion of direct review of his
judgment, the attorneys’ commission of additional severe violations of basic
professional standards of care by their (a) renunciation of the Agreement,
(b) abandonment of their representation and (c) failure to mitigate the
resulting harm to Mr. Sallie. The second sequence concerns the
breakdown, at the critical juncture in Mr. Sallie’s pursuit of collateral review
in state and federal courts, of Georgia’s death penalty scheme to ensure
that death sentenced inmates have meaningful access to the courts.
(Docs. 52-1 at 11-12; 159 at 6).
In short, Sallie’s first “calamitous sequence” involves Singleton and Johnson’s
alleged misconduct. The second involves failures on the part of the Georgia Resource
Center in 2003 and 2004, coupled with the alleged lack of legal resources available to
475-76. Goodman, who conducted no research beyond misreading § 2244(d)(1), mistakenly
and repeatedly assured Cadet that he had one year from the resolution of his post-conviction
motion to file his federal habeas petition. Id. at 476. Goodman filed Cadet’s federal habeas
petition almost one year after the statute of limitations expired. Id. After the State responded
that the petition was untimely and explained why, Goodman finally “conduct[ed] some research,
realize[d] his mistake, and [felt] ‘horrendous.’” Id.
death-row inmates at the Georgia Diagnostic and Classification Prison (“GDCP”).15
Taking Sallie’s factual allegations as true, the Court finds he has failed to show any of
these actions, failures, or conditions, independently or in the aggregate, amounted to
extraordinary circumstances that prevented him from timely filing his petition.
a. Singleton and Johnson’s misconduct does not constitute an
extraordinary circumstance that prevented Sallie from timely
On February 10, 2001, six days before the start of voir dire in his retrial, Sallie,
Singleton, and Johnson entered into the Agreement in which Sallie agreed to the life
without parole sentencing option in exchange for his lawyers’ promise to represent him
during appeal, state and federal habeas, any re-trials, and “for the rest of his life.” (Doc.
After signing the Agreement, Singleton and Johnson diligently represented Sallie
at trial, during his motion for new trial, and on direct appeal. Singleton then filed a
petition for writ of certiorari with the Supreme Court that was denied on October 6, 2003,
thereby rendering final the judgment against Sallie and starting AEDPA’s one year statute
of limitations. (Docs. 72-13, 72-15). Johnson informed Sallie of the Supreme Court’s
denial of certiorari shortly after October 6, 2003. (Docs. 42 at 4-5; 66 at 22). Although
Sallie cannot recall exactly when he was told, he does not dispute that he was in regular
contact with Johnson and Singleton throughout all stages of appellate review and he
knew the Supreme Court had denied his petition for certiorari. (Docs. 42 at 4-5; 99 at
15). Singleton’s petition for rehearing was denied on December 8, 2003. (Docs. 72-16,
72-17). Sallie acknowledges receiving notice of this “[a]t some point shortly thereafter.”
Various exhibits and briefs refer to death-row inmates as “G-House inmates” because all
inmates sentenced to death are housed in “G-House” at GDCP. (Doc. 55-2 at 3).
(Doc. 99 at 15). On December 10, 2003, the Georgia Supreme Court transmitted the
remittitur to the trial court. (Doc. 8 at 12).
Sometime after December 10, 2003 but prior to January 1, 2004, long before the
AEDPA statute of limitations had run, Singleton and Johnson told Sallie they could not
honor the Agreement and continue representing him. (Docs. 42 at 5; 45 at 2; 99 at 16).
According to Sallie, Johnson told him he and Singleton could not represent him in state or
federal habeas proceedings because Sallie would need to raise ineffective assistance of
counsel claims and “the law had been clear for a long time that a lawyer cannot litigate an
[ineffective assistance of counsel claim] against himself.” (Doc. 42 at 5).
After learning of Singleton and Johnson’s withdrawal, Sallie unsuccessfully sought
representation from numerous individuals and agencies. (Docs. 40-7 to 40-21, 40-23;
40-25, 42 at 5-9). Letters he wrote in this effort confirm that Sallie was well aware of his
pro se status long before the statute of limitations had run and that he was aware the
statute of limitations was “running.” (Docs. 40-7 to 40-21, 40-23, 40-25).
Sallie first argues that simply entering into the Agreement constitutes an
extraordinary circumstance for the purposes of equitable tolling, but he never explains
how or why. While the Court accepts that Singleton and Johnson must have known that
they could not represent Sallie in habeas proceedings, entry into the Agreement, by itself,
has no impact on the statute of limitations. Moreover, even if entry into the Agreement
could be considered an extraordinary circumstance, Sallie has not shown, or even
argued, how that prevented him from timely filing a habeas petition years later.16
Sallie also states he justifiably relied on Singleton and Johnson’s “express commitment in the
Agreement … to act as his post-conviction counsel, which preempted [him] from pursuing
alternative post-conviction representation.” (Doc. 52-1 at 13). Before December 2003, it may
have been reasonable for Sallie to believe Singleton and Johnson would honor the Agreement.
Sallie next argues that Singleton and Johnson abandoned him when they
renounced the Agreement. Of course, a lawyer’s abandonment of his client can
constitute an extraordinary circumstance. Cadet, 742 F.3d at 481. But Singleton and
Johnson did not “abandon” Sallie as that term is used in the context of equitable tolling.
The cases addressing attorney abandonment have all involved situations where the
attorney cut off communication with his client, failed to keep the client updated on the
status of his case, and “abandon[ed] his client without notice.” Maples 132 S. Ct. at 922
(counsel left their law firm and took jobs that rendered them ineligible to represent their
client, but they never informed the client or the court of their departure); Holland, 560 U.S.
at 652 (despite repeated pleas from client, counsel failed to communicate with client for
years while his state action was pending and failed to inform client that his state
post-conviction appeal had been denied); Cadet, 742 F.3d at 484 (explaining attorney did
not abandon client because he maintained regular contact through state conviction
process and responded to his concerns about federal statute of limitations).
In contrast, Singleton and Johnson diligently represented Sallie throughout his trial
and direct appeal and kept him informed of the status of his appeal. They then gave him
timely notice they could not represent him during his state or federal habeas actions.
(Docs. 42 at 5; 45 at 2; 99 at 16). In short, like any attorney with a conflict, Singleton and
Johnson notified Sallie of their conflict and then withdrew, some ten months before the
But, after learning of their withdrawal, there was no justifiable reason for Sallie to refrain, and, in
fact, he did not refrain, “from pursuing alternative post-conviction representation.” (Doc. 52-1 at
13). The fact that Sallie was unable to find replacement counsel is not an extraordinary
circumstance because there is no federal or state constitutional right to appointed counsel in
Georgia habeas corpus proceedings. Coleman, 501 U.S. at 756-57 (defendant not entitled to
counsel in state collateral proceedings following completion of his direct appeal); Murray v.
Giarratano, 492 U.S. 1, 10 (1989) (applying the same rule in capital cases); Gibson v. Turpin, 270
Ga. 855, 857, 513 S.E.2d 186, 188 (1999) (no state constitutional right to counsel).
AEDPA statute of limitations would expire. This is not abandonment. Even if it were,
Sallie fails to establish a nexus between the “abandonment” and the late filing of his
federal habeas petition. San Martin, 633 F.3d at 1267. He cannot show the
“abandonment,” which he knew about months before AEDPA’s statute of limitations ran,
“‘stood in his way’ and prevented timely filing.” Holland, 560 U.S. at 649 (quoting Pace,
544 U.S. at 418). “[C]ausation is more difficult for a petitioner to prove if an extraordinary
circumstance occurs early in the statute of limitations period.” Bell v. Florida Att’y Gen.,
461 F. App’x 843, 849 (11th Cir. 2012) (citing Harper v. Ercole, 648 F.3d 132, 137 (2d Cir.
2011)). Given their early notice, Singleton and Johnson’s withdrawal from his case was
not an extraordinary circumstance that prevented Sallie from timely filing a federal
habeas petition or properly filing a state habeas petition to toll AEDPA’s statute of
Finally, Sallie argues that Singleton and Johnson’s failure to mitigate the harm
flowing from the execution and renunciation of the Agreement is an extraordinary
circumstance. (Doc. 52-1 at 13). Sallie says that Singleton and Johnson could have
taken any number of reasonable mitigating steps, such as: Telling him, before
conclusion of direct review, that he would need to find replacement counsel; locating
volunteer replacement counsel; retaining replacement counsel using the Southern
Center’s funds; allowing other Southern Center attorneys to temporarily represent Sallie;
filing a timely state habeas petition that informed the state court of their predicament and
Sallie’s need for replacement counsel; preparing a timely skeleton pro se petition for
Sallie; or advising Sallie “extensively as to his filing deadline and basic elements for him to
proceed pro se effectively.” (Doc. 52-1 at 13).
Again, the Court accepts that Singleton and Johnson knew when they signed the
Agreement they could not represent Sallie during his post-conviction proceedings. The
Court also accepts that they must have realized it would be difficult for Sallie to find
replacement counsel because “Georgia has never funded appointments of legal
representation to indigent death sentenced inmates in state habeas corpus litigation.”
(Doc. 49 at 1).17 Although well aware of the challenges Sallie faced, it appears Singleton
and Johnson did little to find suitable replacement counsel,18 and even less to help Sallie
determine the federal habeas filing deadline.19 But even if they should have done more
to assist him, they did nothing to prevent Sallie from timely filing. They never misled him
to believe they would change their minds or that they would file his petition. Under these
circumstances, the Court cannot say that Singleton and Johnson’s failure to do more for
Sallie after December 2003 actually prevented him from timely filing.
Singleton was well aware of the dilemma facing death-row inmates. In October 2005, Sallie
filed a grievance against Singleton with the State Bar of Georgia complaining that Singleton
breached the Agreement by abandoning him and failing to find acceptable replacement counsel.
(Docs. 40-36; 42 at 11-12). In his response, Singleton explained that several death-row inmates
were without counsel in their habeas proceedings because the State legislature had not
adequately funded post-conviction representation and the Georgia Supreme Court had “seen fit
to rule” that the Georgia constitution and laws do not require post-conviction counsel for
death-sentenced inmates. (Doc. 40-36 at 7). Ultimately, the State Bar of Georgia notified Sallie
it was closing the disciplinary file because there was no “evidence in the file to suggest that Mr.
Singleton acted unethically.” (Doc. 40-36 at 8). The Court gives no weight to that
Singleton and Johnson spoke with the Georgia Resource Center and apparently made some
unsuccessful attempts to locate volunteer counsel to represent Sallie in conjunction with the
Georgia Resource Center. (Docs. 40-12; 40-19 to 40-20).
It is unclear if Sallie ever asked Singleton or Johnson to help him determine his filing deadline.
The record shows that Sallie mentioned the statute of limitations to Singleton once. On July 13,
2004, Sallie wrote Singleton to ask what they should do next and “reminded him the statute of
limitations is running.” (Doc. 40-18). In response, Singleton told Sallie to contact the Georgia
Resource Center, which was “well aware of the relevant time deadlines.” (Doc. 40-19).
In conclusion, Sallie has not shown that any misconduct on the part of Singleton
and Johnson prevented him from timely filing his federal habeas petition, or properly filing
a state habeas petition to toll the running of AEDPA’s statute of limitations.
b. The alleged breakdown in Georgia’s death penalty scheme does
not constitute an extraordinary circumstance that prevented Sallie
from timely filing.
Sallie’s second “calamitous sequence” is the alleged breakdown in Georgia’s
death penalty scheme in 2003 and 2004. (Docs. 52-1 at 12; 159 at 6). Sallie alleges
this breakdown has two components: The Georgia Resource Center’s failure to monitor
post-conviction death penalty cases and the Georgia Department of Corrections’
(“GDOC”) failure to provide death-row inmates with access to legal assistants and
adequate legal resources. (Docs. 52-1 at 14-15; 66 at 36-69, 74). According to Sallie,
Georgia’s scheme for the imposition of the death penalty has, since the late 1980s,
depended upon the Georgia Resource Center to ensure that death-row inmates have
meaningful access to collateral review of state court judgments. (Doc. 66 at 45, 47).
But beginning in late 2003 and until October 12, 2004,20 Sallie says the Georgia
Sallie’s claims that tolling should not end “until October 12, 2004, the moment of the [Georgia]
Resource Center’s institutional resuscitation due to the swift action of a Federal Defender
Program [(“FDP”)] lawyer.” (Doc. 159 at 2). Sallie arrives at this date by engaging in quite a bit
of speculation. His argument is this: (1) On October 4, 2004, an execution warrant was signed
for Richard Sealey, an unrepresented Georgia death-row inmate, who had not filed a state
habeas petition (Doc. 66 at 36); (2) this caused FDP to “give a rudimentary assessment of the
dockets of other death row inmates who had concluded their direct review yet had not
commenced state habeas” (Doc. 66 at 40-41); (3) FDP realized that Sallie and Leeland Braley,
another death-row inmate whose direct review concluded on October 6, 2003, “should have filed
state habeas petitions well before October 7, 2004” (Doc. 66 at 41); (4) FDP obtained a state
habeas petition from the Georgia Resource Center, which it had Sealy sign on October 12, 2004
(Doc. 66 at 37-38); (4) when contacted by FDP regarding Sealy, the Georgia Resource Center
“recognized—either by having the fact pointed out to them by a peer or surmising it upon their own
look at their files—that they had failed to monitor the Braley and Sallie cases” (Doc. 66 at 42); and
(5) the Georgia Resource Center met with Braley and Sallie on October 13, 2004 and had them
Resource Center failed to perform its most basic function—to act as monitor of Georgia’s
post-conviction death penalty cases. (Doc. 66 at 46). According to Sallie, this
“procedural failure,” coupled with the lack of legal assistants and resources available to
death-row inmates, meant he faced a denial of access to courts under Bounds v. Smith,
430 U.S. 817 (1977).21 (Doc. 66 at 47-48).
According to the Georgia Supreme Court, the Georgia Resource Center
was created in 1988 through the joint efforts of this Court, the State Bar of
Georgia, the Georgia Attorney General, and the federal judiciary to provide
expert assistance to attorneys who volunteer to represent indigent,
death-row inmates in post-conviction proceedings. The Resource Center
obtains volunteer counsel for the death-sentenced inmates, and sometimes
directly represents prisoners through its staff attorneys.
sign “skeleton” pro se state habeas petitions that were filed on October 14, 2004. (Doc. 66 at
In a related argument, Sallie claims these allegations also require the Court to rule his federal
habeas petition timely under 28 U.S.C. § 2244(d)(1)(B). 28 U.S.C. § 2244(d)(1)(B) provides that
a habeas petitioner’s limitation period runs from “the date on which the impediment to filing an
application created by State action in violation of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by such State action.” His claim is this:
Georgia’s death penalty scheme denied him access to the courts in violation of the Constitution
and this impediment prevented him from timely filing until it was removed when the Georgia
“Resource Center, essentially by happenstance, came to prepare and file his state habeas
petition.” (Doc. 66 at 75). Sallie argues Georgia is in a “unique position among death penalty
states” because it does not appoint counsel for state post-conviction proceedings. (Doc. 159 at
16). However, access to the courts under Bounds does not require the appointment of
post-conviction counsel. Murray, 492 U.S. at 12. Thus, Georgia’s failure to appoint counsel is
not a “violation of the Constitution or laws of the United States,” as required by § 2244(d)(1)(B).
See Johnson v. Fla. Dep’t of Corr., 513 F.3d 1328, 1331 (11th Cir. 2008) (holding delay in
appointment of post-conviction counsel is not an impediment to filing within purview of §
2244(d)(1)(B) because prisoners in capital cases have no constitutional right to post-conviction
counsel). Also, as discussed in detail below, Sallie has not shown how any alleged “impediment”
prevented him from timely filing. Therefore, § 2244(d)(1)(B) is inapplicable. The Court also
notes that state appointment of post-conviction counsel does not necessarily result in fewer
death-sentenced inmates being time-barred by AEDPA’s statute of limitations. See Lugo, 750
F.3d at 1212-13 (explaining that, as of April 24, 2014, 34 Florida death-row inmates have missed
AEDPA’s filing deadline despite the provision of post-conviction counsel in every case while only
1 Georgia death-row inmate has missed the deadline).
Gibson, 270 Ga. at 856 n.1, 513 S.E.2d at 188 n.1
In Sallie’s case, the Georgia Resource Center was unable to recruit volunteer
counsel or directly represent him at any time before AEDPA’s statute of limitations
expired.22 (Doc. 55-1 at 5-6). Although not his counsel of record, the Georgia
Resource Center still claimed to have “the responsibility of monitoring [his] case and
keeping its habeas files up to date.” (Doc. 72-19 at 3).
Sallie’s relationship with the Georgia Resource Center started before direct review
of his case was concluded. Records from GDOC show that in July 2003, Sallie asked
prison officials to add Georgia Resource Center attorney Thomas Dunn to his list of
attorneys. (Doc. 55-3 at 3). In a September 2, 2003 letter to his mother, Sallie wrote
that he “[h]ad a paralegal visit with [Georgia Resource Center paralegal] Ed Weir last
Tuesday,” August 26, 2003. (Docs. 40-4 at 3; 55-3 at 4). The Georgia Resource Center
also had contact with Sallie between October 6, 2003 and October 6, 2004, the year
AEDPA’s statute of limitations was running. Thomas Dunn requested, in writing, that
Weir be allowed to visit Sallie on eight separate occasions: November 13, 2003,
December 4, 2003, January 22, 2004, February 26, 2004, May 3, 2004, July 14, 2004,
August 19, 2004, and October 5, 2004. (Doc. 55-3 at 4-11). GDOC records confirm
that Weir met with Sallie on each of these dates except two, November 13, 2003 and
This was not unique to Sallie. The Georgia Resource Center also assisted Exzavious Gibson
with filing his state habeas petition and various motions, but was unable to represent him because
it lacked the staff and was unable to find volunteer counsel. Gibson, 270 Ga. at 856, 523 S.E.2d
at 188. Gibson claimed that his constitutional rights were violated because Georgia did not
provide him with a state-funded attorney for his habeas proceedings. Id. at 856-57, 523 S.E.2d
at 188. The Georgia Supreme Court disagreed, holding “there is no federal or state
constitutional right to appointed counsel in Georgia habeas corpus proceedings.” Id. at 857, 523
S.E.2d at 188. Moreover, the lack of appointed counsel does not deny an indigent death-row
inmate meaningful access to the courts under Bounds. Id. at 858, 523 S.E.2d at 189.
January 22, 2004. (Doc. 55-3 at 12-17). On March 19, 2004, Brian Kammer, who was
then a staff attorney with the Georgia Resource Center, met with Sallie. (Doc. 42 at 7).
Kammer met with Sallie again on October 13, 2004 to have him sign the pro se state
habeas petition that was filed on October 14, 2004. (Docs. 42 at 8; 72-18)
Sallie acknowledges the Georgia Resource Center did not represent him, but
claims that Singleton expressly directed him to rely on the Georgia Resource Center for
guidance through the post-conviction process. (Doc. 159 at 8-9). In a July 13, 2004
letter to his mother, Sallie told her: “Just finished writing a letter to Palmer Singleton.
Told him the ball is in his court. He needs to call me and advise me of what we should do
next. I reminded him the statute of limitations is running.” (Doc. 40-18 at 1) (emphasis
added). In a July 19, 2004 letter to Sallie, copied to Kammer, Singleton responded:
I received your July 13 letter. Yesterday, I emailed Brian Kammer, an
attorney at the Resource Center, and he assured me that they are well
aware of the relevant time deadlines. They did get all of the materials that
we have concerning your case several weeks ago.
Please contact the Resource Center and keep me posted.23
On August 26, 2004, Sallie wrote his mother and instructed her to “Call the
Resource Center and ask for Tom Dunn. He’s the director. Tell him who you are and
ask about my case and his office, in searching for a lawyer, outside his office. And
what’s up, in picking up my case files?” (Doc. 40-23 at 1). She made the call but was
unable to speak with Dunn. (Doc. 45 at 3). Sallie alleges the unnamed representative
This is unsigned. Respondent argues that this raises doubts about the veracity of the letter or
whether it was mailed. (Doc. 55 at 10 n.13). For purposes of determining if equitable tolling
applies, the Court assumes Singleton authored the letter and mailed it to Sallie.
with whom she spoke told her: The Georgia Resource Center had contacted the
American Bar Association to find a lawyer to represent Sallie; the Georgia Resource
Center picked up Sallie’s files so the Attorney General would not pick them up; and Sallie
had until January 2005 to file his state habeas petition. (Doc. 45 at 3-4).
Sallie argues that the Georgia Resource Center was “completely derelict” in
fulfilling their responsibility and “effectively abandoned its fundamental role” as monitor of
Georgia’s post-conviction death penalty cases. (Doc. 66 at 42). He maintains that its
failure went beyond a simple “matter of miscalculating [his] deadline.” (Doc. 66 at 42).
Instead, the Georgia Resource Center did not even look at his procedural history to make
a “conceivable calculation of the limitations period.” (Doc. 159 at 9). Sallie states this
was evidenced by the “inexplicable advice” to his mother that he had until January 2005
to file. (Docs. 159 at 9).
But the Georgia Resource Center was not Sallie’s counsel of record at the time
and Sallie does not allege the Georgia Resource Center gave him any reason to believe
they would represent him before the AEDPA statute of limitations ran. Under these
circumstances, the Court fails to see how the Georgia Resource Center’s actions, or
inactions, could be considered an extraordinary circumstance that prevented Sallie from
timely filing a habeas petition.
Sallie’s argument seems to be that because the State created the Georgia
Resource Center to monitor Georgia’s post-conviction death penalty cases, the Georgia
Resource Center’s incompetence amounts to an extraordinary circumstance. A similar
situation arises when an incompetent state-appointed lawyer fails to timely file a
death-row prisoner’s federal habeas petition. This, the Eleventh Circuit has held, “is not
an extraordinary circumstance that warrants the application of equitable tolling.”
Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir. 2005), aff’d, 549 U.S. 327 (2007). In
upholding that ruling, the Supreme Court explained
Lawrence argues that his case presents special circumstances because the
state courts appointed and supervised his counsel. But a State’s effort to
assist prisoners in postconviction proceedings does not make the State
accountable for a prisoner’s delay. Lawrence has not alleged that the
State prevented him from hiring his own attorney or from representing
himself. It would be perverse indeed if providing prisoners with
postconviction counsel deprived States of the benefit of the AEDPA statute
Lawrence v. Florida, 549 U.S. 327, 337 (2007) (citing Duncan v. Walker, 533 U.S.
167, 179 (2001)).
Like Lawrence, nothing (or at least nothing of AEDPA significance) prevented
Sallie from hiring his own attorney or filing his own federal habeas petition. “It would be
perverse indeed” if Georgia’s creation of the Georgia Resource Center deprived it of the
benefit of AEDPA’s statute of limitations. Id.
Moreover, even if the Georgia Resource Center had been Sallie’s counsel of
record, this type of “attorney negligence is not the basis for equitable tolling.” Howell v.
Crosby, 415 F.3d 1250, 1252 (11th Cir. 2005). The Georgia Resource Center’s
miscalculation of Sallie’s filing date may have been the result of simple negligence. Its
lawyers may have thought, as one argued to this Court, that Sallie had until December 10,
2004 to file because his conviction was not final until the Georgia Supreme Court
transmitted the remittitur to the trial court on December 10, 2003. (Doc. 8); Horton v.
Wilkes, 250 Ga. 902, 302 S.E.2d 94 (1983). Or, as Sallie argues, the Georgia Resource
Center may have had no idea when Sallie’s statute of limitations expired and made no
effort to find out. Whatever, it simply does not matter. “[A]ttorney negligence, however
gross or egregious, does not qualify as an ‘extraordinary circumstance’ for purposes of
equitable tolling.” Cadet, 742 F.3d at 481.
The second component of Sallie’s alleged 2003 to 2004 breakdown in Georgia’s
death penalty scheme is GDOC’s failure to assist death-row “inmates in the preparation
and filing of meaningful legal papers by providing [them] with adequate law libraries or
adequate assistance from persons trained in the law.” Bounds, 430 U.S. at 828. Sallie
claims that GDOC’s “systemic failure” to provide death-sentenced inmates with access to
legal assistants or an adequate law library is normally “masked” by the Georgia Resource
Center. (Doc. 159 at 9). However, without help from the Georgia Resource Center in
2003 and 2004, Sallie states he was confronted with a complete lack of access to the
With regard to the alleged lack of “adequate assistance from persons trained in the
law,” Sallie says that GDOC contracted in the spring of 1996 with the Center for Prison
Legal Assistance (“CPLA”), a privately owned for-profit law firm, to provide legal
assistance to “the entire Georgia prison system population of unrepresented inmates.”
Bounds, 540 U.S. at 828; (Docs. 46 at 1; 66 at 55-56). According to the “access to
courts” Standard Operating Procedure (“SOP”) in effect from July 15, 2003 until April 14,
2004,24 an inmate needing legal assistance could either write CPLA directly or complete
request forms that were available at the prison. (Doc. 55-2 at 41-46). The inmate could
mail his request for assistance directly to CPLA or leave the form in a drop-box for prison
officials to mail to CPLA. (Doc. 55-2 at 42). CPLA conducted monthly on-site
interviews in addition to telephone interviews with inmates who requested assistance.
There were three SOPs in effect between October 6, 2003 and October 6, 2004. The first was
in effect from July 15, 2003 until April 14, 2004. (Doc. 55-2 at 38-67). The second was in effect
from April 15, 2004 until August 31, 2004. (Doc. 55-2 at 68-93). The third was in effect from
September 1, 2004 until March 31, 2011. (Doc. 55-2 at 94-120).
(Doc. 55-2 at 43-44). While Sallie does not claim death-row inmates were denied access
to CPLA,25 he alleges that the assistance provided by CPLA was “negligible, at best” and
that CPLA failed to dedicate “specific resources to assist the unique access needs of the
G-House population.” (Doc. 66 at 56-57).
“[A]t some point during 2003,” GDOC notified CPLA that it would not renew its
contract for 2004. (Doc. 46 at 2). Sallie contends CPLA’s contract concluded in
December 2003, but the SOP in effect from July 15, 2003 until April 15, 2004 states that
CPLA provided legal assistance to inmates until April 15, 2004. (Docs. 66 at 57; 46 at 2;
55-2 at 38, 40). Whenever the contract ended, Sallie and Respondent agree that
thereafter GDOC employed its own legal assistants to help inmates conduct research and
file habeas petitions. (Doc. 55-2 at 4; 66 at 59). With scant, if any, factual basis, Sallie
argues that only the “general prison population,” not inmates on death-row, could request
help from these legal assistants.26 (Doc. 66 at 58-61). Death-row inmates, according to
In April 2001, part of Sallie’s formal orientation upon re-entry to GDCP following his re-trial was
to watch a “CPLA Video on Legal Assistance.” (Doc. 55-2 at 123).
Sallie cites two sources to support this statement. First, he cites an affidavit from Marcus C.
Chamblee, a former CPLA staff attorney, who states he “understood” that GDOC “planned to rely
on computer-stored files of legal opinions to perform the role that the CPLA had carried out.”
(Doc. 46 at 2). Chamblee left the CPLA in November 2003. (Doc. 46 at 2). Nothing in
Chamblee’s affidavit reveals how he would know what GDOC did after he left. Next, Sallie cites
a December 13, 2006 affidavit from GDOC counselor Wesley Baker, which was filed in this Court
in Mize v. Zant, 5:00-CV-80 (WDO). (Doc. 66 at 58). Sallie quotes three paragraphs from
Baker’s affidavit that address death-row inmates’ access to (1) trained law librarians, (2) the
electronic law library, and (3) legal books from GDCP’s main reference library. (Docs. 44-15 at
7-8; 66 at 58). From this, Sallie leaps to the unsupported conclusion that these were the only
resources available to “Georgia’s condemned” and all other resources shown in the SOP in effect
at the time, including access to legal assistants, were solely for the “general prison population.”
(Doc. 66 at 59). However, a review of the record in Mize shows Baker likely did not address the
availability of legal assistants in his affidavit because the plaintiffs in that case were complaining
about the lack of persons trained to use the law library computer and lack of access to legal
books. (Doc. 25 at 9-10 in Mize v. Zant, 5:00-CV-80 (WDO)). Sallie’s argument also ignores
Sallie, had no access to legal assistants following CPLA’s departure. Instead, they had
to rely solely on “computer-stored files of legal opinions to perform the role that the CPLA
had carried out.” (Doc. 66 at 57).
The SOPs in effect from April 15, 2004 until August 31, 2004 and from September
1, 2004 until March 31, 2011 provided that an inmate in need of legal assistance could
sign up for an interview with a legal assistant. (Doc. 55-2 at 75-76, 101-02). Nothing in
either SOP excluded death-row inmates from access to legal assistants. Counselor
Wesley Baker, in an October 28, 2011 affidavit, confirms death-row inmates could access
a legal assistant simply by submitting a written request to the media resource specialist.
(Doc. 55-2 at 4). Indeed, it appears Sallie made such a request and was allowed to meet
with a legal assistant for three hours on September 2, 2008. (Doc. 55-2 at 6, 136). The
SOP in effect on September 2, 2008 had been in effect since September 1, 2004. (Doc.
55-2 at 94). Moreover, the earlier SOP, which was in effect from April 15, 2004 until
August 31, 2004, contained the same language regarding access to legal assistants
employed by GDOC. (Doc. 55-2 at 75-76, 101-02). Therefore, if Sallie had access to a
legal assistant on September 2, 2008, it is logical to conclude that he had the same
access between April 15, 2004 and October 2004.
In any event, there is no evidence, or even an allegation, that Sallie requested to
meet with a legal assistant between October 6, 2003 and October 6, 2004. (Doc. 66 at
57). He certainly has provided no evidence that any such request was denied. The
Eleventh Circuit has made clear that it is not enough to allege inadequacies in legal
the language in the SOP attached to Baker’s affidavit, which requires all inmates be allowed to
request help from the legal assistants. (Doc. 35-4 at 29-39). There is no language in the SOP
excluding death-row inmates from such access.
resources; a petitioner must show how his specific efforts to determine the statute of
limitations were thwarted by these inadequacies. Helton v. Sec’y for Dep’t of Corr., 259
F.3d 1310, 1314 (11th Cir. 2001). Thus, even taking all of Sallie’s allegations regarding
inadequate legal assistance as true, he has failed to show any connection between these
inadequacies and his late filing. Id.; Finch v. Miller, 491 F.3d 424, 427 (8th Cir. 2007)
(general allegations of inadequate library and aides not enough; petitioner must show that
shortcomings in the library or legal assistance program hindered his efforts to pursue a
Moreover, from October 6, 2003 until October 6, 2004, Sallie had access to legal
assistance from sources outside of prison. The SOPs state that the prisons shall provide
“[c]onsultation … with an inmate’s attorney of record or other licensed attorney with whom
the inmate is attempting to establish an attorney-client relationship or an approved
designee of such attorney.” (Doc. 55-2 at 40, 70, 96). Weir met with Sallie numerous
times between December 2003 and October 2004, Kammer met with Sallie once, and
criminal defense attorneys Paul Bartels and Bill Cristman27 visited Sallie regularly.
(Docs. 42 at 5; 55-3 at 12-17); See Miller v. Florida, 307 F. App’x 366, 368 (11th Cir. 2009)
(explaining petitioner did not demonstrate extraordinary circumstances based on lack of
access to law library and prison law clerks, in part, because he “could and did
communicate about his case with people outside the prison—including many lawyers”).
Cristman, who was an intern at the Southern Center, observed Sallie’s retrial. (Docs. 42 at 5;
47 at 1). Cristman started practicing criminal defense in Atlanta in 2002 and visited Sallie
regularly until he moved to Vermont in 2008. (Doc. 47 at 2). In 2002 or 2003, Cristman
introduced Sallie to his co-worker and fellow criminal defense attorney, Bartels. (Doc. 47 at 2).
According to Cristman and Bartels, they tried to help Sallie find adequate post-conviction counsel,
but capital habeas litigation was outside of their professional experience and they provided no
guidance to Sallie concerning post-conviction issues. (Docs. 41 at 2; 47 at 3).
With regard to law library access, both Sallie and Respondent agree that in 2003
and 2004 death-row inmates did not have physical access to GDCP’s main law library.
(Docs. 42 at 6; 55-2 at 3). According to Sallie, the law library available to death-row
inmates was “dismantled not long” after 1981,28 and during all of 2003 and 2004, he had
access to an electronic law library, containing only appellate decisions from state and
federal courts. (Docs. 42 at 6; 66 at 53). While the record shows GDOC did ultimately
transition to an electronic law library, it contradicts Sallie’s dates. Counselor Baker
states that until April 2004, death-row inmates had physical access to a satellite reference
library that contained legal books. (Doc. 55-2 at 3-4). After April 2004, GDOC stopped
using the satellite reference library and began relying on the electronic law library.
(Docs. 66 at 49; 55-2 at 4).
Sallie apparently understood the procedure for accessing the law library29
because records reveal that on February 25, 2004 he requested, and was allowed, “a
session in the law lib[rary] … today.” (Doc. 55-2 at 5, 128). Sallie does not maintain
that he made any other requests for access to the law library. Thus, it appears he only
visited the law library once between October 6, 2003 and October 6, 2004.
In contrast, prison records30 reveal Sallie used the law library numerous times from
2006 until 2011. He attended approximately 37 “law library training” sessions between
The only support cited for this allegation is the following statement made by Thomas J. Killeen,
a former staff attorney with the Prisoner Legal Counseling Project: “While there had been a law
library at Georgia Diagnostic and Classification Center at Jackson, it ultimately was dismantled.”
(Doc. 48 at 1).
In April 2001, when Sallie was sent back to GDCP following his retrial, part of his formal
orientation involved learning about the availability of the library. (Doc. 52-2 at 123).
Starting in 2006, GDOC apparently began using a database called SCRIBE to record inmates’
law library requests. (Doc. 55-2 at 5).
October 3, 2006 and September 2, 2008 and approximately 19 “general library sessions”
between August 21, 2008 and April 7, 2011. (Doc. 55-2 at 132-33). During this period,
Sallie drafted two lengthy handwritten post-hearing briefs that were filed in his state
Sallie claims the electronic law library contained only appellate court decisions and
thus, he had no access to “rules of court or criminal, civil or habeas procedure,” statutes,
state or federal habeas forms, or books regarding state or federal habeas. (Doc. 42 at
6). According to Respondent, death-row inmates have always been able to access
materials in the main law library32 by submitting a written request to the media resource
specialist. (Doc. 55-2 at 2-4). Citations in Sallie’s 2008 briefs support this. In addition
to numerous Georgia and federal cases,33 Sallie cites and quotes various Georgia
On May 12, 2008, the Georgia Resource Center filed Sallie’s post-hearing brief in support of his
state habeas petition. (Docs. 86-1 to 86-2). Attached as an appendix to this brief is Sallie’s own
48-page handwritten “Supplemental Brief of Analogous Error’s (sic) Filed By Counsel.” (Doc.
86-2 at 41-90). On October 7, 2008, the Georgia Resource Center filed Sallie’s reply to
respondent’s post-hearing brief. (Doc. 86-3). Attached as an appendix to this brief is Sallie’s
own 19-page handwritten “Petitioner’s Post-hearing Supplement Rebuttable Brief.” (Doc. 86-3
According to all three SOPs in effect between October 6, 2003 and October 6, 2004, materials
in the main library included, inter alia: (1) Georgia Court Rules and Procedures (State and
Federal); (2) statutes regarding Georgia crimes and offenses and criminal procedures (O.C.G.A.
Volumes 14 and 15); (3) the Georgia Civil Practice Statutes (O.C.G.A. Volumes 6 and 7); (4)
U.S.C. Title 28; (5) Federal Civil Judicial Procedures and Rules; (6) Nutshells and Hornbooks
covering criminal law, criminal procedure, and post-conviction remedies; and (7) Wilkes State and
Federal Postconviction Remedies. (Doc. 55-2 at 60-61, 83, 110-11). Additionally, the prisons
were required to maintain a supply of state and federal habeas corpus forms and to provide them
“free of charge to inmates in reasonable quantities not to exceed five (5) copies … per month per
inmate.” (Doc. 55-2 at 47, 72-73, 98-99).
Also supporting Respondent’s assertion that Sallie could receive legal material from the main
reference library by submitting a written request is Sallie’s July 7, 2009 note to Counselor Clark in
which he states: “The law library computer is missing several federal cases. It needs to be
re-loaded again. Please send me a printed copy of: United States v. Rea, 300 F.3d 952 (2002)
statutes, “Georgia Criminal Trial Practice 1999 Ed.,” and “Black’s Law Dictionary (7th Ed.
1999)” in the two briefs he wrote in support of his state habeas petition. (Docs. 86-2 at
47, 52, 55, 64-65, 69-72, 75-77, 80, 84-85; 86-3 at 52-54, 56-58, 60). The SOP effective
September 1, 2004 was still in effect when Sallie drafted these briefs in 2008. (Doc. 55-2
at 94). Thus, if Sallie had access to these sources in 2008, it seems likely he would have
similar access in 2004, had he made a request.
But even if the Court takes Sallie’s allegations regarding the lack of legal materials
as true, he still has not shown how this prevented him from timely filing. The only actions
that Sallie maintains he took toward obtaining legal materials are:
I asked repeatedly over the years about being able to access any other
materials in addition to the appellate cases that are located on the
Specifically, I have asked about books or other materials on state habeas
procedures; federal civil procedure and habeas procedure; and legal forms,
including federal habeas petitions. A death row inmate cannot get such
(Doc. 42 at 6).
Sallie fails to specify when or to whom he made these requests. His “declaration
lacks the necessary specificity to show when he found out about the library’s alleged
deficiency and what—if anything—he did to remedy the defect.” Helton, 259 F.3d at
1314. Thus, he has failed to show any connection between the alleged lack of legal
material and his late filing. San Martin, 633 F.3d at 1267 (holding petitioner not entitled
to equitable tolling unless he shows the alleged extraordinary circumstance caused the
late filing of his federal habeas petition); Lugo, 750 F.3d at 1209 (explaining extraordinary
8th Cir.” (Doc. 55-2 at 134). Again, the SOP that was in effect on July 7, 2009 had been in
effect since September 1, 2004. (Doc. 55-2 at 94).
circumstances not established when argument fails to explain how such impediments
prevented the timely filing of his petition).
In sum, it is doubtful whether Sallie has sufficiently alleged the breakdown in
Georgia’s death penalty scheme constituted an extraordinary circumstance, but even if
he has, he has not alleged a sufficient nexus between this alleged breakdown and his
inability to timely file his federal habeas petition or file a state habeas petition in time to toll
the running of AEDPA’s statute of limitations.
3. Sallie has not shown he was pursuing his rights diligently.
The facts demonstrating that Sallie has failed to establish extraordinary
circumstances also demonstrate his lack of sufficient diligence to timely file a federal
habeas petition or file a state habeas petition to toll AEDPA’s statute of limitations. Sallie
knew he was representing himself from the end of 2003 until well after the Georgia
Resource Center filed his pro se state habeas petition. (Docs. 42 at 5; 45 at 2; 99 at 16).
Sallie admits he “was concerned about the statute of limitations running out in federal
habeas.” (Doc. 42 at 5). However, Sallie has presented insufficient evidence that he
attempted to research the statute of limitations period; attempted to draft his own petition;
tried to obtain standard habeas corpus forms from any court, attorney, or paralegal; or
made any attempt whatsoever to file a timely pro se federal habeas petition or file a pro se
state habeas to toll AEDPA’s statute of limitations.
Instead, when he learned in December 2003 that Singleton and Johnson could no
longer represent him, he devoted his efforts to finding counsel. (Docs. 40-7 to 40-23; 45
at 2). His pursuit of counsel does not prove he diligently tried to timely file his action.
See Arthur v. Allen, 452 F.3d 1234, 1250-51 (11th Cir. 2006), opinion modified on reh’g,
459 F.3d 1310 (11th Cir. 2006) (efforts to obtain private counsel did not show diligence in
pursuing habeas claims); Jihad v. Hvass, 267 F.3d 803, 806 (8th Cir. 2001).
Sallie tries to excuse his inaction by claiming that he was relying on the Georgia
Resource Center to guide him through his post-conviction process. Of course, “attorney
negligence is not a basis for equitable tolling, especially when the petitioner cannot
establish his own diligence in ascertaining the federal habeas deadline.” Howell, 415
F.3d at 1252. This is especially true in Sallie’s case because he knew the Georgia
Resource Center did not represent him, and the Georgia Resource Center never told him
it would file a state or federal habeas petition for him. (Docs. 40-20 at 1; 40-21 at 2;
40-25 at 1). Knowing he was unrepresented, Sallie did not take the first step to ascertain
the federal filing deadline. Thus, he has not shown diligence.34
Sallie’s assertion that he could not research AEDPA’s statute of limitations and file
his own pro se petition due to the lack of legal resources available to inmates on
death-row is insufficient.
To show diligence, a petitioner claiming deficiencies in the prison law library
must provide details of the specific actions taken toward filing the petition.
He must show when he found out about the library’s alleged deficiency,
must state any independent efforts he made to determine when the relevant
limitations period began to run, and must demonstrate how the prison
Sallie need only show “‘an appropriate degree of diligence for someone in his situation.’”
Myers v. Allen, 420 F. App’x 924, 927 (11th Cir. 2011) (quoting Dodd v. United States, 365 F.3d
1273, 1283 (11th Cir. 2004)). “Efforts reasonably expected of one petitioner might be
unattainable for another.” Id. (citing Hunter v. Ferrell, 587 F.3d 1304, 1309-10 (11th Cir. 2009)).
Certainly it does not appear that Sallie had any type of cognitive impairment that would have
impeded his ability to research and determine AEDPA’s statute of limitations. For example, in a
September 29, 2003 letter to his mother, Sallie wrote about a book he had just read on trust deed
investments: “It was about using investors [sic] money to buy mortgage deeds. Pretty much
everything a bank does when they loan money for real estate. Except it’s [sic] investors [sic]
money. They must follow SEC rules and they are regulated by banking rules and laws. Nice to
know this is out there. Not something I’m interested in. To [sic] risky, and to [sic] close to a
scam. A nascence [sic] industry is best to watch but not participate in.” (Doc. 40-5 at 2-3).
Wise counsel in the years leading up to the Great Recession.
thwarted his efforts. Absent such evidence, the connection between the
petitioner’s untimely filing and any alleged inadequacies in the library is
Arthur, 452 F.3d at 1253 (internal quotation marks and citations omitted). As discussed
above, Sallie has not provided details of any actions he took toward researching and filing
his own petition, much less how GDCP thwarted his efforts to do so.
Sallie’s initial habeas petition was not timely filed. (Doc. 21). He has failed to
establish that “‘some extraordinary circumstance stood in his way’ and prevented timely
filing.” Holland, 560 U.S. at 649 (quoting Pace, 544 U.S. at 418). Nor has he shown
that he acted with any diligence to ascertain the federal filing deadline or took any steps to
file his own state or federal habeas petition. Id. Thus, Sallie is not entitled to equitable
Sallie’s argument that 28 U.S.C. § 2244(d)(1)(B) creates a later triggering date for
the application of AEDPA’s one year deadline is without merit. There was no
impediment created by unconstitutional State action that prevented him from timely filing.
Therefore, the Court DENIES Sallies initial and renewed motions (Docs. 52, 159)
for an order ruling his initial petition timely filed or, alternatively, granting an evidentiary
hearing and GRANTS Respondent’s motion to dismiss (Doc. 4).
CERTIFICATE OF APPEALABILITY
A prisoner seeking to appeal a district court’s final order denying his petition for writ
of habeas corpus has no absolute entitlement to appeal but must obtain a Certificate of
Appealability (“COA”). 28 U.S.C. § 2253(c)(1)(A). As amended effective December 1,
2009, Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District
Courts provides that “[t]he district court must issue or deny a [COA] when it enters a final
order adverse to the applicant,” and if a COA is issued “the court must state the specific
issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).”
Pursuant to 28 U.S.C. 2253(c)(2), a COA may issue “only if the applicant has made
a substantial showing of the denial of a constitutional right.” This requires a
demonstration that “jurists of reason could disagree with the district court’s resolution of [a
petitioner’s] constitutional claims or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 327 (2003). When the Court denies a habeas petition on procedural grounds
without reaching the underlying constitutional claims, as in this case, the petitioner must
show that “jurists of reason would find it debatable whether the district court was correct in
its procedural ruling”; and (2) “jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S.
473, 484 (2000). Thus, when a petition is denied on procedural grounds, determining
whether to issue a COA “has two components, one directed at the underlying
constitutional claims and one directed at the district court’s procedural holding.” Id. at
484-85. The Supreme Court has made clear “that issuance of a COA must not be pro
forma or a matter of course.” Miller-El, 537 U.S. at 337.
With regard to Sallie’s initial habeas petition, as supplemented and amended
(Docs. 1, 9, 39, 66-67), the Court finds the standard for the grant of a COA has not been
met. First, there is nothing debatable about the Court’s determination that Sallie’s initial
habeas petition was not timely filed. (Doc. 21). It is clear that Sallie’s judgment became
final on October 6, 2003, when the United States Supreme Court denied his petition for
certiorari, and that he failed to file a federal habeas petition, or a state habeas petition to
toll AEDPA’s statute of limitations, before October 6, 2004. (Doc. 21). Sallie’s
argument that state law determines when a state court judgment is final for purposes of
28 U.S.C. § 2244(d)(1)(A) has been foreclosed by binding precedent from both the
Supreme Court and the Eleventh Circuit. (Docs. 8, 21); Clay v. United States, 537 U.S.
522 (2003); Pugh v. Smith, 465 F.3d 1295 (11th Cir. 2007). Thus, the arguments raised
by Sallie regarding this issue are not “adequate to deserve encouragement to proceed
further.” Miller-El, 537 U.S. at 327.
Second, jurists of reason would not find it debatable that the alleged exceptions to
the statute of limitations—State impediment and equitable tolling—do not exist in this
case. Lawrence, 421 F.3d at 1225. Sallie clearly has not shown any unconstitutional
State action prevented him from timely filing his habeas petition. 28 U.S.C.
2244(d)(1)(B). While he makes a somewhat better argument for equitable tolling, this
Court’s rejection of that argument is not reasonably debatable. Singleton and Johnson’s
misconduct and the Georgia Resource Center’s alleged failures coupled with an alleged
lack of legal resources for death-row inmates were not extraordinary circumstances. But
even if they were, Sallie has not shown that these events and conditions prevented him
from timely filing. A habeas petitioner is not entitled to equitable tolling unless he shows
a “causal connection between the alleged extraordinary circumstances and the late filing
of the petition.” San Martin, 633 F.3d at 1267. Considering the facts of this case in light
of this precedent, the Court is satisfied that it cannot grant a COA on the issue of equitable
Having determined that the Court’s procedural rulings regarding the initial habeas
petition are not debatable, the Court need not decide if “jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right.”
Slack, 529 U.S. at 484. However, the Court offers some observations, for whatever
benefit they may provide. Sallie’s initial habeas petition, as amended and
supplemented, contained 17 claims. (Docs. 1, 9, 39, 66-67). When told to brief all
claims he wished to pursue, Sallie raised only two: (1) That trial counsel was ineffective
in relation to plea negotiations (the Strickland claim) (Doc. 99 at 63); and (2) that the
Agreement he and trial counsel entered resulted in the denial of counsel at a critical stage
of his trial (the Cronic35 claim) and a conflict of interest that affected the adequacy of his
representation (the Cuyler36 claim) (Doc. 99 at 73-74). Sallie alleges these claims are
unexhausted and procedurally defaulted. (Doc. 99 at 6). He argues that the lack of
counsel when he filed his state habeas petition, followed by ineffective assistance of state
habeas counsel once the Georgia Resource Center became counsel of record, provides
the cause necessary to overcome default for the claims. (Doc. 99 at 41-47). If the
Eleventh Circuit decides Trevino is applicable to Georgia’s criminal procedure, it is
conceivable that Sallie could establish cause to overcome the procedural default of his
Strickland claim. But regardless of the Eleventh Circuit’s interpretation of Trevino, it is
doubtful his Cronic and Cuyler claims could escape procedural default. Martinez, 132 S.
Ct. at 1319 (explaining that “Coleman held that an attorney’s negligence in a
postconviction proceeding does not establish cause, and this remains true except as to
initial-review collateral proceedings for claims of ineffective assistance at trial”) (emphasis
added); Trevino, 133 S. Ct. at 1921 (same).
With regard to the juror bias claims in Sallie’s second amended habeas petition
(Doc. 122), the Court found these claims were procedurally defaulted and untimely.
United States v. Cronic, 466 U.S. 648 (1984).
Cuyler v. Sullivan, 446 U.S. 335 (1980).
(Doc. 170). Sallie acknowledges these claims are unexhausted and even acknowledges
that diligent state habeas counsel could have raised the claims. (Docs. 152 at 7; 160 at
6). Thus, it is clear state law would bar them as successive and this Court’s finding that
they are procedurally defaulted is not debatable. It is also clear that Sallie’s claims are
time-barred. By Sallie’s own admission, his second amended habeas petition was filed
years after “the date on which the factual predicate” of the juror bias claims could have
been discovered during his state habeas proceedings. (Doc. 160 at 6). Even with
statutory tolling until February 7, 2011 (the date his state habeas action was no longer
pending), Sallie’s second amended habeas petition was untimely because it was not filed
until May 9, 2013. (Doc. 122). Sallie has not shown that he is entitled to equitable
tolling for any time between February 7, 2011 and May 9, 2013. A habeas petitioner
must show that he has been diligently pursing his rights and “some extraordinary
circumstance stood in his way and prevented timely filing.” Holland, 560 U.S. at 649
(internal quotation marks and citations omitted). Sallie’s novel argument that diligent
federal habeas counsel coupled with the Court’s handling of his federal habeas petition
constitute extraordinary circumstances is patently without merit and “deserve[s] [no]
encouragement to proceed further.” Miller-El, 537 U.S. at 327.
Finally, reasonable jurists could not debate whether this Court erred when it
denied Sallie’s motion to amend his second amended habeas petition to assert an
ineffective assistance of trial counsel claim stemming from the juror bias allegations.
(Doc. 169). That claim is barred by the statute of limitations for the same reasons the
claims in his second amended habeas petition are time-barred.
The Court realizes that in capital cases “the nature of the penalty is a proper
consideration in determining whether to issue a” COA. Barefoot v. Estelle, 463 U.S. 880,
893 (1983). “[B]ut the severity of the [death] penalty does not itself suffice to warrant the
automatic issuing of a” COA. Id. The Court has taken into consideration the penalty
faced by Sallie and has also taken into consideration that, as of this date, Sallie appears
to be the only death-sentenced inmate in Georgia found to be time-barred by AEDPA’s
statute of limitations. Lugo, 750 F.3d at 1213. Even with these considerations in mind,
after thoroughly reviewing the applicable case law, the Parties’ briefs, and the record, the
Court cannot find its procedural rulings sufficiently debatable to warrant a COA.
SO ORDERED this 15th day of July, 2014.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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