Anderson v. Taylor
Filing
19
ORDER denying 14 Motion for Entry of Default; denying 15 Motion for Default Judgment. Respondent's counsel is directed to file an explanation for his tardiness within fourteen days of this Order. Signed by Magistrate Judge G. R. Smith on 19/2012. (loh)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
CHARLES E. ANDERSON,
)
)
Petitioner,
)
Case No. CV411-260
V.
)
WARDEN CEDRIC TAYLOR,
)
)
Respondent.
REPORT AND RECOMMENDATION
Charles Anderson, currently incarcerated at Autry State Prison
Pelham, Georgia, has petitioned for a writ of habeas corpus pursuant
28 U.S.C. § 2254. (Doe. 1.) He seeks to challenge the revocation of his
state probation in 2007. Respondent moves to dismiss his petition as
time-barred.' (Doe. 8.)
The timeliness of a § 2254 petition is governed by the
1
Respondent filed a motion, unsupported by any transcript of the state
proceedings, on December 13, 2011. (Doc. 8.) The Court expected supporting
documentation to follow, and when it did not, it ultimately directed the respondent to
submit supporting materials within 14 days. (Doc. 12.) More than a month later,
respondent complied with the Court's order. (Doc. 16.) In the meantime, Anderson
twice moved for a default, though no default will issue in habeas cases, much less a
case where a defendant has already answered. (Docs. 14 & 15.) His motions are thus
DENIED. Nevertheless, respondent's counsel is DIRECTED to file an explanation
for his tardiness within 14 days.
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
which established a one-year statute of limitations for habeas corpus
petitions filed by state prisoners. See 28 U.S.C. § 2244(d). The record
reflects that Anderson's probation was revoked on October 16, 2007.
(Doc. 1 at 4; doc. 16-1 at 46) He did not timely appeal. (Doe. 1 at 4.)
Hence, his revocation became "final" thirty days later, on November
15 1 2007, when his time for filing a notice of appeal with the Georgia
Court of Appeals expired. Colbert v. Head, 146 F. App'x 340, 341 (11th
Cir. 2005); O.C.G.A. § 5-6-35 (allowing thirty days after the entry of an
order revoking probation to file an appeal). Petitioner submitted his
state habeas petition for filing on May 19, 2009, well over a year later.
(Doe. 16-4 at 8.) Although the state habeas action would have tolled
one-year federal limitations period if any time was remaining, 28
§ 2244(d)(2), it did not reset the clock. Webster v. Moore, 199 F.3d
1259 (11th Cir. 2000) (a state habeas petition filed after the AEDPA
limitations period has expired cannot toll the statute of limitations
because there is no time left to toll) Hence, this petition is untimely
many years.
2
Anderson states that he was unaware of the timing provisions.
(Doe. 10. at 3) He also claims that he asked his attorney to file an
appeal, but his attorney did not do so. (Id.) Thus, he seeks equitable
tolling of the limitations period. (Id. at 3-4.) For equitable tolling to
apply, Anderson must show "(1) that he has been pursuing his rights
diligently and (2) that some extraordinary circumstance stood in his way
and prevented timely filing." Holland v. Florida, 560 U.S. -, 130 S. Ct.
2549 7 2562 (2010) (quotes and cite omitted). To that end, "[t]here are no
bright lines in determining whether equitable tolling is warranted in a
given case.2 Rather, the particular circumstances of each petitioner must
be taken into account." Pabon v. Mahanoy, 654 F.3d 385, 399 (3rd Cir.
2
"The Supreme Court has clarified that the prisoner must pursue his rights
with 'reasonable diligence, not maximum feasible diligence. . . .' The prisoner bears
the burden of demonstrating that extraordinary circumstances prevented the timely
filing of a § 225[4 petition] such that equitable tolling applies, and mere conclusory
allegations are not sufficient to raise the issue. Equitable tolling is a rare and
extraordinary remedy." Doe v. United States, 2012 WL 1138779 at * 1 (11th Cir. Apr.
6 7 2012) (emphasis added) (quoting Holland, 130 S. Ct. at 2565). This burden
includes showing causation -- a nexus between the extraordinary circumstance and
the late filing of the federal habeas petition. Bell. V. Fla. Atty. Gen., 2012 WL 386253
at * 5 (11th Cir. Feb. 7, 2012). Hence, even if an attorney, court, or some other
external factor can be blamed for running out part of the one-year clock, no equitable
tolling will be granted if the prisoner indolently runs out the rest. Id. ("Bell must
also show a nexus between the extraordinary circumstance and the late filing of his
federal habeas petitions, and it is often the case that causation is more difficult for a
petitioner to prove if an extraordinary circumstance occurs early in the statute of
limitations period.") (citation omitted)).
3
2011) (applying Holland).
At the outset, Anderson's unfamiliarity with AEDPA is no excuse.
A pro se litigant's ignorance of the law simply does not justify equitable
tolling. Maldonado v. United States, 2012 WL 1143828 at * 1 (M.D. Fla.
Apr. 5, 2012) (collecting cases). His second contention -- that he
instructed his attorney to appeal but his attorney mistakenly told him
that he enjoyed no appellate rights -- is also unavailing. (Doe. 10 at 4.)
Anderson actually did have the right to pursue a discretionary appeal.
O.C.G.A. § 5-6-35. The trouble is, Anderson admits that he knew that
counsel had not filed an appeal by May 1, 2008, less than six months
after the revocation was final. (Doe. 10 at 2.) Had he filed a state habeas
petition by November of that year, he could have preserved his federal
habeas rights. Instead, he sat on his rights until May of 2009. (Id.)
Hence, Anderson was not diligent. See Doe, 2012 WL 1138779 at * 2
(denying equitable tolling to § 2255 movant who, inter alia, failed to
"demonstrate how he exercised due diligence in pursuing his rights"
after he learned that his lawyer failed to file a notice of appeal; he thus
failed to satisfy his equitable tolling burden).
4
Even assuming Anderson had been diligent, his tolling claim still
fails. Simple attorney malpractice will not support equitable tolling; the
petitioner must show something more. Maples v. Thomas, 565 U.S.
132 S. Ct. 912, 923 n. 7 (2012). In Holland, for instance, the Court
explained that while attorney negligence will not support equitable
tolling, where an attorney utterly abandoned his client, a different result
May be warranted. Holland, 130 S. Ct. at 2555, 2567-68 (Alito, J.
concurring). In other words, attorney abandonment is treated differently
than attorney negligence. Maples, 132 S.Ct. at 923. After all, "sense
dictates that a litigant cannot be held constructively responsible for the
conduct of an attorney who is not operating as his agent in any
meaningful sense of that word." Id. (quoting Holland, 130 S. Ct. at
2568). Here, however, Anderson's attorney did not abandon him, for he
filed an extraordinary motion to reconsider the probation revocation and
even instructed him (Anderson) to file a state habeas petition. (Doc. 10
2.) In such situations, petitioners like Anderson must bear the
fatal malpractice risk from a lost appeal. See Coleman v. Thompson, 501
U.S. 722, 752-57, (1991) (condemned prisoner pursuing state habeas
5
relief waived right to federal review, and thus could be executed, after his
state habeas counsel negligently missed, by 3 days, deadline for appealing
denial of state habeas petition); id. at 754 (applying Rest. Agency 2d §
(1958) ("master is subject to liability for harm caused by negligent
conduct of servant within the scope of his employment").3
Anderson's habeas petition is untimely and he has failed to show
that he is entitled to equitable tolling. Consequently, this case should
be DISMISSED. Moreover, applying the Certificate of Appealability
("COA") standards, which are set forth in Brown v. United States,
WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns no
COA-worthy issues at this stage of the litigation, so no COA should
issue. 28 U.S.C. § 2253(c)(1); see Alexander v. Johnson, 211 F.3d 895,
898 (5th Cir. 2000) (approving sua sponte denial of COA before
filed a notice of appeal). And, as there are no non-frivolous issues to
raise on appeal, an appeal would not be taken in good faith. Thus, in
forma pauperis status on appeal should likewise be DENIED. 28
U.S.C. § 1915(a)(3).
3 This point was not overruled by Martinez v. Ryan, 566 U.S.
912950 at * 5-6 (Mar. 20, 2012), which modified Coleman on other grounds.
6
, 2012 WL
SO REPORTED AND RECOMMENDED this
74
day of
June, 2012.
UNitgu(SIPArfAs MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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