RUTLAND v. WILLIAMS

Filing 14

ORDER ADOPTING 12 Report and Recommendations and 9 Motion to Dismiss. Petitioner's § 2254 petition is DISMISSED. COA is DENIED and any motion to proceed IFP is also DENIED. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 6/16/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
SHAWN C. RUTLAND,
Plaintiff,
v.
Warden STANLEY WILLIAMS,

Defendant.

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CIVIL ACTION NO. 5:16-CV-182 (MTT)

ORDER
Before the Court is the Recommendation (Doc. 12) of U.S. Magistrate Judge
Charles H. Weigle. The Magistrate Judge recommends the Court grant the
Respondent’s Motion to Dismiss (Doc. 9) the Petitioner’s § 28 U.S.C. 2254 habeas
corpus petition for failure to comply with the one-year statute of limitations imposed by
the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2244(d). Doc.
12 at 1. The Petitioner has objected to the Recommendation (Doc. 13), specifically the
Magistrate Judge’s determination that the Petitioner has not established “extraordinary
circumstances” to justify equitable tolling and that the application of AEDPA’s one-year
statute of limitations does not infringe on the Petitioner’s Fifth Amendment due process
rights. Doc. 13 at 1, 4. The Court has performed a de novo review of the portions of
the Recommendation to which the Petitioner objects, and the Court accepts and adopts
the findings, conclusions, and recommendations of the Magistrate Judge. The
Recommendation is ADOPTED as amended and made the order of this Court.

The Court agrees with and adopts the Magistrate Judge’s finding that the
Petitioner did not establish an “extraordinary circumstance” to warrant equitable tolling.
Doc. 12 at 8. The trial judge’s instructions were not “affirmatively misleading” and,
further, any potential confusion on the Petitioner’s part was mitigated by the fact that he
was represented by counsel at the time. As the Magistrate Judge pointed out, the
Petitioner’s trial counsel in fact stated that he discussed the statute of limitations with
the Petitioner. Doc. 11-1 at 4. Nothing else in the record corroborates that Petitioner’s
trial counsel properly explained the statute of limitations issue or establishes whether
trial counsel worked to clarify any misunderstanding on the part of the Petitioner. But
even if counsel failed to do so, such a failure does not warrant equitable tolling.
Whether attorney negligence could rise to a level to qualify as an “extraordinary
circumstance” is unclear.1 However, even if it could, the record does not support
anything more than mere negligence on the part of the Petitioner’s trial counsel, if that.
Moreover, “pro se litigants, like all others, are deemed to know of the one-year statute

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The Recommendation states that “attorney negligence, however gross or egregious, does not qualify as
an extraordinary circumstance for purposes of equitable tolling.” Doc. 12 at 8 (quoting Spears v. Warden,
605 F. App’x 900, 904 (11th Cir. 2015)). However, the accuracy of this statement is unclear. See
generally Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216 (11th Cir. 2017). The Supreme Court appeared to
move away from this rigid standard and instead expressed that gross negligence or misconduct—such as
an attorney abandoning the representation of a client—could potentially rise to the level of an
“extraordinary circumstance” warranting equitable tolling of AEDPA’s statute of limitations. See generally
Holland v. Florida, 560 U.S. 631 (2010) (disapproving of the appeals court’s rigid standard that attorney
negligence could not warrant equitable tolling as inconsistent with principles of equity and intimating that
negligence that rises above a “garden variety claim of excusable neglect” may warrant equitable tolling);
but see Cadet, 853 F.2d at 1227 (interpreting Maples v. Thomas, 565 U.S. 266 (2012), as clarifying
Holland to apply only to instances of attorney abandonment and that “attorney negligence, even gross or
egregious negligence, does not by itself qualify as an ‘extraordinary circumstance’ for purposes of
equitable tolling”). Here, this distinction is inconsequential. Even if gross negligence could qualify as an
“extraordinary circumstance,” the record does not support such gross negligence on the part of the
Petitioner’s trial counsel. Cf. Holland, 560 U.S. at 653-54 (determining that counsel’s failure to file the
petitioner’s petition and to timely inform him that the state supreme court had decided his case, despite
the petitioner’s attempts to reach his counsel, could potentially qualify as an “extraordinary
circumstance”); see also Lawrence v. Florida, 540 U.S. 327, 336-37 (2007) (“Attorney miscalculation is
simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners
have no constitutional right to counsel.”).

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limitations [for federal habeas petitions]. . . . [A]ny such requirement of actual notice
would virtually eviscerate the statute of limitations.” Outler v. United States, 485 F.3d
1273, 1282 n. 4 (11th Cir. 2007).
Accordingly, the Recommendation (Doc. 12) is ADOPTED as amended. The
Respondent’s Motion to Dismiss (Doc. 9) is GRANTED and the Petitioner’s § 2254
petition is DISMISSED.
CERTIFICATE OF APPEALABILITY
The Court can issue a Certificate of Appealability (COA) only if a petitioner “has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To merit a COA, the Court must determine “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved
in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotation marks and citations omitted). If a procedural ruling is involved, the
petitioner must show “jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The Petitioner has not made these showings, and
accordingly the COA is DENIED. Additionally, because there are no non-frivolous
issues to raise on appeal, an appeal would not be taken in good faith. See 28 U.S.C. §
1915(a)(3). Any motion to proceed in forma pauperis on appeal is therefore also
DENIED.

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SO ORDERED, this 16th day of June, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

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