Collins v. White

Filing 13

MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers. For the reasons listed, IT IS HEREBY ORDERED that John Wayne Collins' Motion for Equitable Tolling (DN 3 ) is DENIED and his Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (DN 1 ) is DISMISSED as untimely. cc: Petitioner, pro se; Counsel (CDR)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:15-CV-26-GNS-HBB
JOHN WAYNE COLLINS

PETITIONER

v.

RANDY WHITE, WARDEN

RESPONDENT

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Petitioner John Wayne Collins’ (“Collins”) Motion for
Equitable Tolling. (Pet’r’s Mot. for Equitable Tolling, DN 3). For the reasons stated below, the
Court DENIES Collins’ Motion.
I.

BACKGROUND

On June 17, 2010, the Kentucky Supreme Court affirmed Collins’ conviction and
sentence in Warren Circuit Court for the commission of two murders. (Pet’r’s Mot. for Equitable
Tolling 1; Resp’t’s Resp. to Pet’r’s Mot. for Equitable Tolling 2, DN 9 [hereinafter Resp’t’s
Resp.]). The Kentucky Supreme Court denied Collins’ petition for rehearing on November 18,
2010. (Pet’r’s Mot. for Equitable Tolling 1; Resp’t’s Resp. 2). Collins filed a state habeas
petition pursuant to Kentucky Rule of Criminal Procedure 11.42 (“RCr 11.42”) on January 31,
2011. (Pet’r’s Mot. for Equitable Tolling 2; Resp’t’s Resp. 3). After failing in the trial court
initially and upon reconsideration, Collins appealed the denial of his RCr 11.42 to the Kentucky
Court of Appeals, which entered its opinion on May 24, 2013, affirming the trial court’s denial.
(Pet’r’s Mot. for Equitable Tolling 2-3). The Court of Appeals entered a modified decision on
July 26, 2013. (Pet’r’s Mot. for Equitable Tolling 3). On December 11, 2013, the Kentucky

Supreme Court denied Collins’ petition for discretionary review of his RCr 11.42 motion.
(Pet’r’s Mot. for Equitable Tolling 3).
By letter dated December 13, 2013, Joshua A. K. McWilliams (“McWilliams”), Collins’
appointed post-conviction attorney, alerted Collins that he would be “keeping [his] case and
filing a Writ of Habeas Corpus in United States District Court for the Western District of
Kentucky.” (Pet’r’s Mot. for Equitable Tolling Ex. 1 at 5, DN 3-1). Collins’ sister, Ethel Roberts
(“Roberts”), states that she placed two calls to McWilliams’ office, one at some point before
October 7, 2014, and one on October 8, 2014, inquiring about the status of Collins’ case.
(Roberts Aff. 1-2, DN 11-1).
McWilliams informed Collins, via lettered date February 11, 2015, that he would not be
pursuing a federal habeas petition on Collins’ behalf as he “concluded that the claims [he] would
advance didn’t past [sic] the threshold for 28 USC §2254(d).” (Pet’r’s Mot. for Equitable Tolling
Ex. 1 at 6). McWilliams explained that Collins could still pursue federal habeas relief pro se, but
that “there may be procedural default issues with [Collins’] case but those can be overcome,” and
cited Maples v. Thomas, 132 S. Ct. 912 (2012), as a case into which Collins “[would] want to
look.” (Pet’r’s Mot. for Equitable Tolling Ex. 1 at 7).
Collins and Respondent Randy White (“White”) agree that Collins’ petition for habeas
relief pursuant to 28 U.S.C. § 2254 is time-barred absent equitable tolling. (Pet’r’s Mot. for
Equitable Tolling 4-5; Resp’t’s Resp. 8). Contemporaneously with his Petition Under 28 U.S.C.
§ 2254 for Writ of Habeas Corpus by a Person in State Custody, Collins filed his Motion for
Equitable Tolling. (Pet’r’s Mot. for Equitable Tolling 4). White has responded in opposition
(Resp’t’s Resp.) and Collins has replied in support of his motion (Pet’r’s Reply, DN 10).
Accordingly, this matter is ripe for adjudication.

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II.

JURISDICTION

This Court has jurisdiction to “entertain an application for a writ of habeas corpus in
behalf of a person in custody pursuant to the judgment of a State court” pursuant to 28 U.S.C. §
2254.
III.

DISCUSSION

“A 1-year period of limitation shall apply to an application for a writ of habeas corpus by
a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1). This
statute of limitations is subject to equitable tolling “in appropriate cases.” Holland v. Florida,
560 U.S. 631, 645 (2010). “[A] 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.” Id. at 649 (quoting Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005)) (internal quotation marks omitted).
Collins argues that he diligently pursued his rights in both the Kentucky courts and in this
Court, in that he filed his habeas petition within less than a month after receiving McWilliams’
letter dated February 11, 2015. (Pet’r’s Mot. for Equitable Tolling 5). He further argues that
McWilliams abandoned him as a client, and that such abandonment constitutes an extraordinary
circumstance. (Pet’r’s Mot. for Equitable Tolling 5-8). In White’s response, he maintains that
Collins did not pursue his rights diligently, as he did not make efforts to contact McWilliams or
anyone at the post-conviction branch of the Department of Public Advocacy despite knowing
that the applicable statute of limitations was running. (Resp’t’s Resp. 13-14). He also argues that
Collins has not alleged extraordinary circumstance as he has at best alleged attorney negligence,
not attorney abandonment. (Resp’t’s Resp. 14-16).

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The Court will assume arguendo that Collins diligently pursued his rights as required by
Holland. The remaining relevant inquiry is whether McWilliams abandoned Collins or was
simply negligent. If Collins can establish that McWilliams abandoned him, he will have
established extraordinary circumstances sufficient to grant him equitable tolling. Maples v.
Thomas, 132 S. Ct. 912, 923-24, 924 n.7 (2012). If Collins cannot establish abandonment, but
rather only negligence on McWilliams’ part, then he cannot establish the necessary extraordinary
circumstances. Maples, 132 S. Ct. at 923.
Collins argues that McWilliams’ lack of contact with Collins between the letters dated
December 13, 2013, and February 11, 2015, constituted abandonment. (Pet’r’s Mot. for
Equitable Tolling 6-7). White notes that, due to the disengagement letter sent by appointed
appellate counsel Collins was well aware of the statute of limitations and the tolling thereof
during RCr 11.42 proceedings. (Resp’t’s Resp. 14 (citing Pet’r’s Mot. for Equitable Tolling Ex.
1 at 1-2)). White notes that Collins did not allege that McWilliams refused his calls, misled him,
or withdrew from representation without informing Collins. (Resp’t’s Resp. 15-16). He argues
that without circumstances showing more than simple negligence, Collins cannot establish
extraordinary circumstances. (Resp’t’s Resp. 15-16).
“A garden variety claim of excusable neglect” does not warrant equitable tolling.
Holland, 560 U.S. at 651-52 (citation omitted) (internal quotation marks omitted). In Holland,
the Supreme Court held that Holland’s attorney was not guilty of mere excusable neglect. Id. at
652. Holland’s attorney “failed to file Holland’s federal petition on time despite Holland’s many
letters that repeatedly emphasized the importance of his doing so.” Id. He also “apparently did
not do the research necessary to find out the proper filing date, despite Holland’s letters that went
so far as to identify the applicable legal rules” and “failed to inform Holland in a timely manner

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about the crucial fact that the Florida Supreme Court had decided his case, again despite
Holland’s many pleas for that information.” Id. Finally, Holland’s attorney “failed to
communicate with his client over a period of years despite various pleas from Holland that [he]
respond to [Holland’s] letters.” Id.
In this case, by contrast, Collins reached out to McWilliams only three times in fairly
rapid succession shortly before the statute of limitations had run. Roberts stated in her affidavit
that she called McWilliams’ office twice. (Roberts Aff. 1-2). The first time, she was told that
there was no record of McWilliams representing Collins. (Roberts Aff. 1). Collins then called
McWilliams’ office during the time period of November to mid-December 2014 and was told
that emails would be sent to McWilliams and his secretary requesting the status of the case.
(Pet’r’s Reply 2). Roberts then placed a third phone call to McWilliams office, and was told that
he was “finishing up on [Collins’ case].” (Roberts Aff. 1-2).1 While McWilliams certainly should
have informed Collins in a timely fashion that he would not be filing a federal habeas petition on
Collins’s behalf, Collins made little effort to contact McWilliams to keep abreast of the
developments in his case. McWilliams also did not forget to file a habeas petition; he simply
determined that the filing would be unsuccessful and made his decision accordingly. (Pet’r’s
Mot. for Equitable Tolling Ex. 1 at 6-7). McWilliams did not abandon Collins, Collins simply
“rested feeling confident that . . . McWilliams had his best interests at hand,” rather than taking
an active role in his case.

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While Roberts believes that she placed the last phone call to McWilliams on October 8, 2014,
given the timeline as explained by Collins in his reply, it is more likely that on October 8, 2014,
her initial call to McWilliams took place, not the later call. This means that her second call took
place after November to mid-December 2014, as that is when Collins contacted McWilliams’
office.
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Collins also relies on Maples to establish that he was abandoned by McWilliams, rather
than the victim of McWilliams’ negligence. (Pet’r’s Reply 2). In Maples, two pro bono attorneys
based at the same large firm in New York represented Maples at the filing of his state motion for
post-conviction relief. Maples, 132 S. Ct. at 916-17. While the motion was pending, they took
new positions that disqualified them from continuing to represent Maples, but they did not tell
Maple, and neither they nor local counsel moved for substitution of counsel. Id. The trial court
denied Maples’ motion, and the order was sent to the firm at which the two New York attorneys
were previously employed. Id. at 917. The orders were returned unopened to the clerk. Id.
Without an attorney in fact acting on his behalf, Maples’ time to appeal ran out resulting in a
procedural default. Id. The Supreme Court noted that while typically the attorney is the
petitioner’s agent, meaning that the petitioner “bears the risk of negligent conduct on the part of
his [attorney],” this is not true when an attorney abandons his client without notice. Id. at 922-23
(citation omitted).
McWilliams, like the attorneys in Maples, changed offices. (Pet’r’s Mot. for Equitable
Tolling Ex. 1 at 6). Unlike the attorneys in Maples, however, McWilliams’ February 11, 2015,
letter makes clear that he continued to research and work on Maples’ case. He explained the
arguments he would have made in a federal habeas petition, and why he believed they would fail
in light of the legal research that he had done. (Pet’r’s Mot. for Equitable Tolling Ex. 1 at 6-7).
Acknowledging that “there may be procedural default issues,” McWilliams advised in his letter
that should Collins decided to pursue a pro se federal habeas petition, Maples “should enable
[Collins] to overcome procedural default issues.” (Pet’r’s Mot. for Equitable Tolling Ex. 1 at 7).
These are not the actions of an attorney who has abandoned his client.

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While McWilliams may have failed to communicate with Collins in a timely fashion and
been incorrect about the application of Maples to this case, these are instances of negligence.
They do not evidence abandonment or an attempt to abandon Collins. Collins has not shown the
extraordinary circumstances necessary to apply equitable tolling. Accordingly, his habeas
petition is untimely and must be dismissed.
IV.

CONCLUSION

For the reasons listed above, IT IS HEREBY ORDERED that John Wayne Collins’
Motion for Equitable Tolling (DN 3) is DENIED and his Petition Under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody (DN 1) is DISMISSED as untimely.

Greg N. Stivers, Judge
United States District Court
September 24, 2015

cc:

counsel of record
Petitioner, pro se

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