Jones v. Stephens, Director TDCJ-CID
Filing
113
Memorandum Opinion and Order Granting Petitioner's 103 Motion to Alter Judgment filed by Quintin Phillippe Jones re: 103 MOTION to Alter Judgment Under Fed.R.Civ.P. 59(e). This Court's judgment dismissing Jones's h abeas petition is vacated. Clerk is directed to reopen these proceedings effective the date of this order. Jones shall file an amended petition not more than 90 days from the date of this order. Respondent shall answer the amended petition within 60 days of the date amended petition filed. Jones shall file any reply not more than 30 days after date the answer is filed. (Ordered by Judge Terry R Means on 2/6/2014) (ult)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
QUINTIN PHILLIPPE JONES,
Petitioner,
V.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
§
§
§
§ CIVIL ACTION NO. 4:05-CV-638-Y
§
§
§
(death-penalty case)
§
§
§
MEMORANDUM OPINION AND ORDER GRANTING PETITIONER’S MOTION TO
ALTER OR AMEND THE JUDGMENT UNDER FED. R. CIV. P. 59(e)
Petitioner Quintin Phillippe Jones has moved to alter or amend
the Court’s judgment on remand dismissing his petition for a writ
of habeas corpus.
Motion to Alter or Amend [doc. 103]; Memorandum
Opinion and Order [doc. 101].
Among other things, Jones’s motion
asserts for the first time that the Court’s 2005 order appointing
his federal habeas counsel satisfies the “extraordinary circumstances”
requirement for equitable tolling because the order undertook to
protect Jones’s right to a timely filed petition.1
Respondent con-
tends that this new argument may not be raised in a 59(e) motion and
that, in any case, the appointment order does not provide the extraordinary circumstances necessary for equitable tolling. Respondent
argues that the order is directed to “Petitioner” and not to counsel
1
After appointing Jack Strickland for the purpose of “preparing, filing and
litigating” a petition for writ of habeas corpus, the appointment order states,
“It is further ordered that Petitioner shall timely file his federal petition for
writ of habeas corpus. The petition shall demonstrate that it is timely filed
under 28 U.S.C. § 2244(d)(1).” Order [doc. 7](“Appointment Order”).
alone, that it simply restates what is already required by statute,
and that it did not prevent Jones from timely filing his petition.
I.
Upon careful reconsideration, the Court concludes that Jones’s
motion should be granted and that Respondent’s motion to dismiss the
petition as time-barred should be denied. The Court does not reach
these conclusions lightly.
Equitable tolling requires Jones to show both that (1) he has
been pursuing his rights diligently, and (2) some extraordinary
circumstances stood in his way and prevented a timely filing.
See
Holland v. Florida, 560 U.S. 631(2010). The appointment order changes
the analysis of both of these requirements.
A.
The 2005 appointment order, together with the following facts,
satisfy the diligence requirement.
Seven days after the Court
received this case on Strickland’s motion to appoint counsel, Jones
wrote a letter asking the Court not to appoint Strickland based, among
other things, on the breakdown in communications between them during
state habeas proceedings.
Pro Se Motion to Appoint Counsel [doc.
5]. Jones also wrote to Strickland, asking him not to “get appointed”
in federal court.2 Ex. S.3 Nevertheless, the Court appointed Strick2
To clarify, Strickland did not seek to have himself appointed in this
Court. Texas law simply requires state counsel to file the motion once state
habeas relief has been denied. See Tex. Code Crim. Proc. Ann. art. 11.071, §
2(e) (West 2009).
3
Exhibits cited are attached to Jones’s Post-Holland Brief [doc. 86].
2
land because of his familiarity with the case and issued the appointment order instructing that “Petitioner” timely file the petition
and that the petition demonstrate its timeliness.
Jones then filed a pro-se motion to remove Strickland and appoint
different counsel, alleging that Strickland’s failure (1) to timely
file the state writ application and (2) to investigate and present
certain mitigation-related claims, showed that Strickland “will not
represent Petitioner in a competent much less professional manner.”
Applicant’s Pro Se Motion for the Appointment of Different Counsel
at 2 [doc. 9] (“Motion to Substitute Counsel”).
to Strickland, asking him to step down as counsel.
Jones also wrote
Ex. U.
Strick-
land’s response asserted (among other things) that the late filing
was excused by the state court for good cause and that it was not
found to be a result of a conscious disregard of professional responsibilities.
Strickland also noted that he had advised the federal
magistrate that he did not wish to be appointed in this proceeding.
Response from Petitioner’s Counsel to Pro Se Motion for Appointment
of Counsel at 5-6 [doc. 13].
In a second pro-se motion, Jones sought, in the alternative,
to have co-counsel appointed in the case.
Applicant’s Second Pro
Se Motion for the Appointment of Different Counsel at 5 [doc. 14].
The Court denied both of the pro-se requests.
Order Denying Pro Se
Motion for Appointment of Counsel [doc. 17]. Both Jones and Strickland apparently acquiesced to this ruling. See Ex. V, Y. Strickland
3
then filed the petition about six months later, after the statute
of limitations deadline had passed.
Petition [doc. 19].
The correctness of the ruling on Jones’s pro-se motions is not
before this Court.4
Nevertheless, it is difficult to overlook the
fact that Jones’s concerns about Strickland’s ability to provide
“competent” and “professional” representation proved in retrospect
to be justified.
Even if he could not have known that Strickland
would miss the filing deadline, Jones had taken multiple, timely steps
toward ensuring competent habeas representation.
Furthermore, the
appointment order addressing the timeliness of the petition could
reasonably have caused Jones to relax his vigilance regarding the
exact filing deadline, as well as his obligation to make sure
Strickland met it.
In sum, Jones’s independent efforts to avoid,
to remove, and then to provide co-counsel for Strickland, all of which
occurred during the period he seeks to toll, together with the
appointment order, show that Jones exercised reasonable diligence
in the pursuit of his federal habeas rights.
See Holland, 130 S.
Ct. at 2565 (holding that, in addition to other factors, Holland’s
efforts to remove counsel, “the central impediment to the pursuit
of his legal remedy,” constituted reasonable diligence).
4
In this regard, the Court notes that the Supreme Court has since established an "interests of justice" standard for the substitution of counsel in
death-penalty cases. See Martel v. Clair, 132 S. Ct. 1276 (2012).
4
B.
The Court also concludes that the 2005 appointment order, when
considered with the other circumstances in this case, satisfies the
extraordinary-circumstances requirement. Jones makes many allegations
of unprofessionalism against Strickland, but he does not dispute that
what actually prevented a timely filing was Strickland’s negligent
miscalculation of the deadline.5
Such a “garden variety” claim of
excusable neglect does not warrant equitable tolling. See Holland,
560 U.S. at 651-52; Lawrence v. Florida, 549 U.S. 327, 336-37 (2007).
This rule is premised on the rationale that mistakes of counsel are
constructively attributable to the client, at least in the postconviction context, because the attorney is acting as the petitioner’s
agent.
Holland, 560 U.S. at 656 (Alito, J., concurring); Coleman
v. Thompson, 501 U.S. 722, 753-54(1991) (citing Link v. Wabash R.R.
Co., 370 U.S. 626 (1962)).
5
By way of further explanation, Jones’s first state habeas counsel, Wes
Ball, was appointed on May 17, 2002, but filed nothing. On December 3, 2003,
Ball was removed and Strickland was appointed in his place. Strickland was given
270 days to file a writ application, during which time the Supreme Court denied
certiorari from the direct appeal and the limitations period began to run. See
28 U.S.C. § 2244(d). By the time Strickland’s state application was filed, which
tolled the limitations period, 149 days had elapsed. This is the exact number
of days late that Strickland’s federal petition was filed.
In the usual case, Texas inmates must file the state application no later
than 180 days after appointment of habeas counsel or 45 days after the State’s
direct appeal brief is filed, whichever date is later, and one 90-day extension
is permitted. See Tex. Code Crim. Proc. Ann. art. 11.071, § 4 (West 1995).
Because of this, the federal limitations period is often tolled by an existing
application on the very day the direct appeal becomes final and the limitations
period would otherwise begin. Thus, it is commonly the case that no portion of
the limitations period has elapsed before the filing of a state application.
Strickland’s calculation of the deadline in this case was consistent with these
common circumstances.
5
Here, there was simple negligence that might normally be
controlled by Lawrence.
Upon further consideration, however, the
Court concludes that the Lawrence rule should not be applied because
the negligence occurred during the course of a mutually undesired
attorney-client relationship that had broken down. To be sure, the
friction between Jones and Strickland mainly concerned Strickland’s
refusal to pursue what he believed to be frivolous Atkins and Wiggins
claims, claims upon which Jones has no right to insist.
See Jones
v. Barnes, 463 U.S. 745, 751 (1983) (recognizing that an indigent
defendant has no constitutional right to compel appointed counsel
to press even non-frivolous points on appeal if counsel, as a matter
of professional judgment, decides not to present those points). But
the friction also concerned, albeit to a lesser extent, Strickland’s
inability to meet a state filing deadline, something Jones has a right
to insist upon.
Motion to Substitute Counsel at 1-2 [doc. 9].
The
Court concludes that equity should not compel a mutually undesired
agency relationship that, in the end, proved entirely fruitless for
the client, who had made diligent efforts to avoid it in the first
place.
Cf. Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P’ship,
507 U.S. 380, 396-97 (1993)(holding that dismissal of claim because
of counsel’s late filing in bankruptcy case does not impose an unjust
penalty on the client who “voluntarily chooses” his attorney); Link,
370 U.S. 626, 633-34 (1962) (Harlan, J.)(holding that client in
personal injury action cannot avoid the consequences of the acts or
6
omissions of his “freely selected” lawyer-agent); see also Crutcher
v. Aetna Life Ins. Co., 746 F.2d 1076, 1083 (5th Cir. 1984) (denying
relief for attorney incompetence where client voluntarily chose his
attorney because this voluntary choice is “at the heart of our
representative litigation process”); Lucas v. Abbott Labs., No.
3:12cv3654-B, 2013 WL 2905488, *7 (N.D. Tex. June 13, 2013) (holding
that plaintiffs “voluntarily chose” their attorney and cannot avoid
the consequences of the acts or omissions of this freely selected
agent).
This is not to say that capital habeas petitioners may have the
appointed counsel of their choosing or can dictate the claims to be
raised by counsel, but simply acknowledges that the agency rule that
makes a client responsible for his lawyer’s acts or omissions is
founded on, at least, a voluntary relationship.
The record is
abundantly clear that, while they acquiesced to this Court’s orders,
Jones and Strickland had both taken affirmative steps to avoid Strickland’s appointment in federal court. Strickland’s failure to reply
to Respondent’s motion to dismiss and his failure to appeal the
Court’s first dismissal order, while they occurred after the filing
of the petition, demonstrate just how broken the relationship
continued to be, even after appointment.
Strickland had given his
“whole-hearted” approval to another attorney to speak to Jones and
pick up the reigns of this case.
Strickland’s 2008 Letter to the
Court [doc. 33].
7
Assuming Lawrence does not control, the granting of equitable
tolling still would require extraordinary circumstances to have
prevented Jones from timely exercising his rights. Respondent points
out that the 2005 appointment order did not “prevent” Jones from
filing his petition or mislead him about the due date; it merely
ordered what was already required by statute. Respondent is correct.
This case is not like previous cases that allowed equitable tolling
due to reliance on a court order that misleads or provides incorrect
information. E.g., Prieto v. Quarterman, 456 F.3d 511, 514-15 (5th
Cir. 2006)(allowing for equitable tolling in death penalty case where
court order granting extension of time ordered petitioner to file
his petition well after the statutory deadline); Cousin v. Lensing,
310 F.3d 843, 848 (5th Cir. 2002)(holding that extraordinary
circumstances have been found where petitioner is misled by an
affirmative but incorrect representation of a district court on which
he relies to his detriment); United States v. Patterson, 211 F.3d
927, 932 (5th Cir. 2000)(allowing equitable tolling where court order
granted, on the last day of the limitations period, pro-se request
to dismiss petition without prejudice and permitted later refiling);
see also Pliler v. Ford, 542 U.S. 225, 232 (2004) (acknowledging that
procedural instructions from a court regarding abeyance or dismissal
can “run the risk of being misleading”); Spottsville v. Terry, 476
F.3d 1241, 1245-46 (11th Cir. 2007)(allowing equitable tolling where
appeal from state habeas proceeding was done incorrectly but in
8
accordance with instructions in federal habeas court’s order of
abeyance).
But as the Court has already observed, the appointment
order reasonably could have caused (and probably did cause) Jones
to relax his vigilance as to the filing deadline.
In the unusual
circumstances of this case, where petitioner anticipated he would
receive “incompetent” representation and his timely requests to avoid
it were denied in an order that attempts to address his concerns about
competence and timeliness, the Court concludes that is enough.
A
stricter interpretation of the meaning of “prevent” would not be in
keeping with the spirit of Holland, which similarly rejected as “too
rigid” a standard that would have required “bad faith, dishonesty,
divided loyalty, mental impairment or so forth on the lawyer’s part.”
Holland, 560 U.S. at 634.
Jones maintains, based on Ross v. Varano, 712 F.3d 784, 802-03
(3rd Cir. 2013), that Strickland exhibited “extreme neglect” in
“missed deadlines, overall failure to communicate, and inaccurate
and misleading assurances concerning the status of legal proceedings.”
Motion at 4.
The record does not support the allegations of mis-
leading assurances concerning the “status” of legal proceedings or
an “overall” failure to communicate.
Strickland’s untimely state
petition, filed thirty days late, did not cause the 149-day delay
in this Court, and Strickland timely communicated to Jones important
rulings as well as the federal deadline as he believed it to be.
Counsel complied with the deadline, as he calculated it to be. For
9
all of Jones’s allegations, there is no factual support to conclude
that any attorney action--other than Strickland’s negligence in
calculating the due date--caused the untimeliness of the petition.
Jones also contends he should be entitled to equitable tolling
due to his limited intellectual ability and education, poor mental
health, and limited resources while incarcerated. The record clearly
does not show that Jones’s mental status or incarceration status have
been “severe obstacles” preventing him from pursuing his rights.
See Robertson v. Simpson, 624 F.3d 781, 785 (6th Cir. 2010)(recognizing that several courts of appeal have held that, for the mental
incapacity of a petitioner to warrant equitable tolling, petitioner
must demonstrate that the incompetence affected his or her ability
to file a timely habeas petition); see also Scott v. Johnson, 227
F.3d 260, 263 n.3 (5th Cir. 2000)(noting that inadequate prison law
library does not constitute a “rare and exceptional” circumstance
warranting equitable tolling).
opposite:
Jones’s own exhibits reflect the
Jones has written several letters to counsel asserting
legal claims and providing legal authority.
grievance with the State Bar.
He apparently filed a
He wrote letters to the state judge
and lodged pro-se filings and letters in this Court asserting his
federal habeas rights. The fact that Jones contends he had help with
some of these things shows only that he knows to ask for help; it
does not demonstrate that his allegedly poor mental health or the
conditions of incarceration prevented him from doing anything. See
10
Blount v. Biter, No. SACV 12-865 VBF (AN), 2012 WL 3150943, *6 (C.D.
Cal. Aug. 1, 2012)(stating that for equitable-tolling purposes, petitioner’s assertion that he received help from his father amounts to
a concession that he, unlike many prisoners, was able to obtain legal
assistance from a source other than the prison law library).
The Court acknowledges the observation in Lawrence that it would
be perverse if providing prisoners with post-conviction counsel
deprived the states of the benefit of the AEDPA statute of limitations. Lawrence, 549 U.S. at 337. But the post-conviction representation provided here was unwanted by both the client and the attorney
alike.
The Court also observes that the perfect storm of post-
conviction counsel in this case was likely not the sort of counsel
contemplated by the Supreme Court in Lawrence.
Jones’s first
appointed state habeas counsel filed nothing and was terminated after
seventeen months.
Failing to account for this unusual passage of
time, Strickland filed an untimely petition in this Court. And new
federal habeas counsel, appointed in 2008 to represent Jones for the
sole purpose of challenging the dismissal of his petition as timebarred, failed to bring the 2005 appointment order to this Court’s
attention until a post-judgment motion.
The flexibility inherent in an equitable procedure allows this
Court to consider these unusual circumstances and to “meet new
situations that demand equitable intervention, and to accord all the
relief necessary to correct . . . particular injustices.” Holland,
11
130 S. Ct. at 2563.
The Supreme Court has recognized the need for
avoiding fast adherence to “more absolute legal rules, which if
strictly applied, threaten the ‘evils of archaic rigidity.’”
See
Holland, 130 S. Ct. at 2563; Patterson, 211 F.3d at 931 (holding that
“we must be cautious not to apply the statute of limitations too
harshly”). So while Lawrence dictates the denial of equitable tolling
for a negligently miscalculated deadline, the application of this
absolute rule would impose archaic rigidity given the rare and
exceptional circumstances present in this case: the petitioner lodged
multiple, timely requests to avoid counsel’s appointment based, at
least in part, on concerns about counsel’s previous failure to meet
a state deadline, and the Court nevertheless forced the continuation
of a mutually undesired attorney-client relationship in an order that,
while not misleading or preventing Jones from doing anything, probably
caused Jones to relax his vigilance regarding the federal deadline.
II.
The Court turns next to whether Rule 59(e) is the proper vehicle
for raising this new argument.
Grounds for granting a Rule 59(e)
motion to alter or amend the judgment include (1) an intervening
change in controlling law; (2) the availability of new evidence not
previously available; or (3) the need to correct clear error or
prevent manifest injustice. See In re Benjamin Moore & Co., 318 F.3d
626, 629 (5th Cir. 2002). It is “an extraordinary remedy that should
be used sparingly,” but courts have a great deal of discretion in
12
ruling on a 59(e) motion.
Templet v. HydroChem Inc., 367 F.3d 473,
479 (5th Cir. 2004).
Respondent does not argue against manifest injustice.
Citing
Templet, he argues only that Jones’s new argument could and should
have been presented before now. Templet, 367 F.3d at 478-79 (holding
that 59(e) is not the proper vehicle for rehashing evidence, legal
theories or arguments that could have been raised before judgment
was entered).
Jones replies that, irrespective of whether the
argument should have been raised before, it may now be considered
to prevent manifest injustice.
The Court agrees for several reasons.
First, the grounds for
granting a 59(e) motion set out in Benjamin Moore are listed in the
alternative, such that an argument that does not satisfy ground (1)
or (2) could nevertheless satisfy the “manifest injustice” ground
in (3). Second, there is no general definition of manifest injustice;
it is a case-by-case decision based on equitable considerations.
See Bender Square Partners v. Factory Mut. Ins. Co., No. 4:10cv4295,
2012 WL 1952265, *4 (S.D. Tex. May 30, 2012) (agreeing that manifest
injustice requires a fundamental flaw in the court’s decision that
without correction would lead to a result that is both inequitable
and not in line with applicable policy)(citations omitted). Third,
this Court is required to strike the proper balance between the need
for finality and the need to render a just decision on the basis of
“all the facts.”
See Edward H. Bohlin Co. v. Banning Co., 6 F.3d
13
350, 355 (5th Cir. 1993). Because the 2005 appointment order is an
indisputable fact that changes the equitable-tolling analysis, the
need to render a just decision outweighs the need for finality.
Granting the 59(e) motion would prevent a manifest injustice, namely,
the denial of federal habeas review in a death-penalty case because
of the compounded errors of appointed counsel.
Were this Court to
deny Jones the opportunity to have his habeas petition heard at this
point, he will have been subject to the errors of not one but three
post-conviction attorneys. Equity should not tolerate these results,
especially in a death-penalty case.
III.
Jones’s motion to alter or amend the judgment [doc. 103] is
granted.
This Court’s judgment dismissing Jones’s habeas petition
[doc. 102] is vacated. The clerk is directed to reopen these proceedings effective the date of this order. Jones shall file an amended
petition not more than ninety days from the date of this order.
Respondent shall answer the amended petition within sixty days of
the date the amended petition is filed. Jones shall file any reply
not more than thirty days after the date the answer is filed.
SIGNED February 6, 2014.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
TRM/ks:bb
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?