Hutchinson v. Florida

HUTCHINSON, Jeffrey Glenn

Petitioner-Appellant, FLORIDA, Respondent-

State of

Appellee.

No. 10-14978. Court of

United States Appeals,

Eleventh Circuit.

April

D. Todd Doss (Courb-Appointed), Law Doss, FL, D. City, Office of Todd Lake Petitioner-Appellant. M. Millsaps,

Charmaine Meredith Char- bula, Gen., Atty. Tallahassee, Office FL, Respondent-Appellee. EDMONDSON, Before CARNES BARKETT, Judges. Circuit 1098

CARNES, ment or claim shall not Judge: pending Circuit 2244(d)(2) § counted.” In for that order statute of This is another federal habeas statutory tolling apply, petitioner case, involving equita another file petition must his state collateral before generally 28 U.S.C. tolling ble issue. See one-year — for period filing his federal Florida, 2244(d); v. § Holland U.S. petition habeas run. has McCloud v. -, 2549, 177 L.Ed.2d 130 S.Ct. 130 (11th Hooks, 1223, 1227 Cir.2009); 560 F.3d (2010). Jeffrey con G. Hutchinson was Corr., Dep’t Alexander v. Sec’y, 523 degree of first mur of four counts victed (11th Cir.2008) F.3d 1294 abrogated girlfriend, to death shotgunning der for —Kholi, grounds on other by Wall v. her three children: Flaherty, Renee and U.S. -, Geoffrey, seven-year-old 179 L.Ed.2d 252 nine-year-old Amanda, (2011); Ferrell, four-year-old Logan. see also Hunter v. State, (11th Cir.2009). 882 So.2d 948-49 Hutchinson v. F.3d 1308 n. (Fla.2004) by abrogated Deparvine v. petition Hutchinson’s state collateral was (Fla.2008). State, 995 So.2d He was 20, 2005, not filed until October which was imprisonment for sentenced to life twenty days one-year entire peri after the Flaherty and to murder of Renee death for petition od for had run federal on child. at 949. the murder of each Id. His 30, 2005, September and as a result none were affirmed convictions and sentences the limitations his fed Id. at 961. After an appeal. direct petition eral to be tolled. was left From evidentiary state collateral relief hearing point hopes on Hutchinson’s for relief denied, was denial was affirmed and that riding nothing were all or on his state by Supreme the Florida Court. Hutchin petition, collateral and the result came up (Fla. State, son v. 702-04 So.3d nothing Florida when the 2009). affirmed the denial collateral relief. See The Hutchin- district court dismissed Hutchinson, 17 So.3d 702-04. § son’s 2254 petition 28 U.S.C. for federal it

habeas relief was not filed until because recognizes both Hutchinson 24, 2009, July years, which was three nine his federal habeas should petition (or months, 1,393 days and twenty-four by September been filed and that days) one-year after the statute of limita- petition because his state collateral was 2244(d) § tions contained in run not filed until October cannot 2005. Hutchinson Flori- 2244(d)(2) statutory tolling § claim under da, 5:09-CV-261-RS, No. 2010 WL of the time that his state collateral (N.D.Fla. 2010). Sept. This is proceeding ongoing. His sole conten Hutchinson’s from that appeal dismissal. equitable tion is that he entitled to Holland, tolling. generally 2244(d)(1)(A) one-year

Under is, well, Equitable tolling equitable period for filing a federal habeas nature, regarding in decisions must running starts on the date “on which the case-by-case be made “on a in light basis” became final judgment [state court] circumstances, of “specific often hard to expira conclusion of direct review or the advance,” predict although we “can tion of seeking the time for such review.” 2244(d)(2) do made in upon §But draw decisions other provides that time “[t]he guidance.” similar cases for Id. at during properly application which a omitted). (quotation turn State or other collateral marks We now pertinent specific review to the respect judg- facts circumstances of as to this case as well the decisions deadline required were guidance. similar cases for file either Hutchinson’s federal pe- habeas tition file his state collateral agree parties problem statutorily time to toll the federal limita- attorneys this case because the who arose period. They they tions that believed petition filed state Hutchinson’s collateral until October of Septem- instead the limi- misunderstood date on which the 2005, 30, ber actual was the dead- period began tations to run at end of the they line.1 Because filed Hutchinson’s and, result, appeal process the direct aas petition 20, state collateral on October they the Be- miscalculated deadline. 2244(d)(2) 2005, § provision tolling the did for petition cause no writ of certiorari was not kick finally when Hutchinson Supreme filed in the States United federal July 24, habeas part appeal, of direct time for the 2009, three-and-three-quarters it was petition started the federal habeas years late. “the too running upon expiration of the time seeking for review.” U.S.C. such 2244(d)(1)(A). A petitioner

§ attorneys has the burden Hutchinson’s that, establishing understood but is “right” misunderstood not too —if seeking when the re- strong time certiorari a word of equity area —to judgment expired. of a court’s equitable view state tolling. He plead profi must or They thought doing that the time for so that, fer enough true, facts if justify would expired days after ninety the Florida Su- evidentiary an hearing on the issue. Cha preme July Court issued its mandate Sec’y, Corr., Dep’t vez v. Fla. 647 F.3d ¶2. Instead, App. A See (11th Cir.2011). And the alle expired actually ninety days time after the gations supporting equitable tolling must Supreme issuance of the Florida Court’s specific conclusory. and not Id. at (the opinion judgment judgment), was the 1061. The say Court did in Hol twenty-one days which had earli- happened although land that equitable relief is flexi er on July Sup.Ct. R. 13.3 all ble and the facts and circumstances (“The a petition time to file for a writ of considered, must be we should “draw upon entry certiorari runs the date of made in decisions other similar cases for judgment sought order be re- Holland, guidance.” at 2563. viewed, and from the date issuance We take statement to mean this is not (or equivalent the mandate its local under law, governed an area free of rules of practice).”). foot, entirely but chancellor’s we As a of that misunderstanding, result are instead bound precedent attorneys Hutchinson’s miscalculated the extent there precedent.2 calculations, By good our thing prece- actual deadline 2. And it is a that rules of Blackstone, September apply dent here. Even should have be- who was been something equity, of a fan of warned that: year September one cause that is after liberty considering [T]he all cases in judgment the date on which the of the an light, equitable indulged must not be too state court became under final far; law, thereby destroy we all lest reason, 2244(d)(1)(A). § For some the dis- every entirely question leave the decision of parties say trict court said and the that the law, judge. breast And with- September deadline was 2005. Because equity, though disagreeable, out hard and no difference will use difference makes we public good, more much desirable for the date, too. equity than without law: which would every judge legislator, make and intro- Holland, Binding precedent has laid down two deadline.” See omitted). requirements peti- that a federal (quotation habeas marks attorneys grant tioner must meet before a court can who filed the state collateral 2244(d) § him equitable tolling of the stat- Hutchinson misunderstood what 2244(d)(1)(A)’s ute of limitations. In the Supreme Court’s “expiration of the time words: petitioner equita- is entitled to “[A] seeking such review” meant when read (1) only if tolling ble he shows that he has against Supreme Court Rule 13.3. The pursuing rights diligently, been fact they ought to have known better extraordinary some circumstance does not justify equitable tolling.3 The Holland, way.” stood in his 130 S.Ct. at attorneys who miscalculated the deadline omitted); (quotation 2562 marks Lawrence filing in the Lawrence case did so Florida, v. they because were not aware of well-set (2007); 166 924 L.Ed.2d see tled law that prevented any should have Chavez, 1066, also 647 F.3d at 1068. The Lawrence, confusion on part. See Supreme Court has also instructed us that 336-37, 127 Yet, 549 U.S. at at S.Ct. variety “a garden claim of excusable ne- Supreme equitable Court still held that glect simple such as a miscalculation that tolling justified was not in that case be lawyer leads a a filing miss deadline “[attorney cause simply miscalculation is equitable does not warrant tolling.” Hol- not sufficient equitable tolling.” to warrant (citation land, 130 S.Ct. at 2564 quota- 336, Id. at attorney S.Ct. at 1085. If omitted); Lawrence, tion marks 549 U.S. miscalculation, error, negligence were 336-37, at at (“Attorney 2244(d) enough equitable § tolling, the miscalculation simply not sufficient to statute of limitations would be tolled to the equitable warrant tolling, particularly in brink of extinction practically because in postconviction prisoners context where every case where there is a failure to meet counsel.”); have no constitutional right to filing deadline an attorney is at fault. Chavez, see also 647 F.3d at 1066. Chavez, (“In virtually F.3d involves, every

This case Holland’s lan- case where the equitable issue of guage, “a garden variety tolling claim of up excusa- comes one or more attorneys neglect,” ble arising simple from “a miscal- should have acted with more dispatch, but lawyer culation that leads a to miss a more than required.”). that is confusion; duce most infinite as there attorneys opinion before those two did. The many would then be almost as different Secretary Department Diaz courts, rules of action laid down in our Corrections, (11th Cir.2004), 362 F.3d 698 there capacity are differences of and senti- 90-day period states that “[t]he in which Diaz ment in the human mind. could have filed a in the United Blackstone, *62; 1 William Commentaries see expired States on June Joseph Story, also 1 Equity Commentaries on began at which time the clock to run on (13th (“If Jurisprudence 1886) § at 16 ed. one-year limitation for the of habeas indeed, Equity England a Court of did petitions.” opinion Id. at 699. The in that possess jurisdiction the unbounded which has shows, however, case that June 1997 was generally been thus ascribed to it ... it would days appellate after the state court's man- gigantic sway, be the most in its and the most date had days issued and not 90 after its arbitrary power, formidable instrument issued, opinion days which was 16 earli- devised.”). that could well be er. See id. We do not know if the Diaz Any opinion implicit by confused criticism us Hutchinson's counsel or if of Hutchinson's attorneys tempered for their were even mistake is aware of it. What we do panel awareness that a perfect; of this Court made know is that no one is we all make exactly year-and-a-half the same mistake a mistakes. argues that more is involved knew that only way Hutchinson was “the [he] could simple attorney here than error or miscal- prevent one-year period “more” that he contends is culation. The expiring petition.” [his] Id. involved is set out in the affidavit attorneys “guaranteed” him that they response court in filed in district would file the state court motion “no later peti- motion to dismiss his federal habeas September 28, than 2005.” Id. But they (That untimely. repro- tion as affidavit is Instead, did not do that. they filed the Appendix opin- in full as A to this duced state court motion October 2005.4 ion.) affidavit, In his Hutchinson states repeatedly expressed that he to the two alleges Hutchinson that but for his at- attorneys representing who were him his torneys’ promise to file September limitations, concern about the statute of 2005 he “would discharged them and and on 2005 he them told filed a pro se rule 3.851 motion prevent “point blank and no uncertain terms to 2255(d)(l)’s 28 U.S.C. one-year limi- [sic] my ‘either file rule 3.851 motion immedi- tations from expiring.” App. A I ately discharge you or will and file it ¶ 16. He attached to his affidavit “facsimi- ” ¶ myself.’ occasion, AApp. 15. On that les of the Notice of Pro Se Status and Rule recounts, attorneys Hutchinson both prom- 3.851 Motion that would have [he] filed on they ised him that “would file the motion 23, 2005, September but for attor- [the 28, 2005, September though on or before neys’] promise.” Id. Those two facsimiles say days went on to that we had 90 23, are each dated September 2005 and by after the mandate was issued the Flori- Hutchinson, signed by indicating that he Court, Supreme da so the rule 3.851 mo- ready, was willing, and able to file his actually tion was not due until ‘October ” proceed pro motion to se and his Rule Hutchinson, According 20th.’ Id. he 3.851 motion on or soon after that date and again attorneys told his two that if they would attorneys’ have done so but for did not file the Rule 3.851 motion “imme- diately” promises, he would file it himself he kept.5 because which were not In up his affidavit Hutchinson states that be- to handle the case to the time he prevented fore the statute of limitations ran he met with withdrew or that it had him from ¶¶ times, 7, 10, attorney Brody App. filing three A the motion for state re- 12, ¶¶ times, 6, sooner”). attorney alleged with Hazen four id. lief Nor has Hutchinson Hazen, 8, 11, 13, attorney signed that actually and with both of them on two other who occasions, 14, ¶¶ filed the Rule 3.851 motion in state during id. 15. He states that court on 20, 2005, alone, impaired meetings Brody one October was ever of his more way. period than five months before the limitations ran, Brody “visibly was disoriented alcohol,” ¶ 12, strongly smelled id. 5. Hutchinson’s affidavit also states that on occasions, during 14, meeting another July two-and-a-half three the last of which was months before attorneys the limitations ran Bro- he asked his to file a "shell- dy "sweating profusely was and smelled prevent brief” in state court in order to the alcohol,” ¶ says id. running they investigated 14. Hutchinson also that time from while on that later prepared occasion Hazen told him that case and the real motion for state 11, 13, ¶¶ Brody “just having personal was a lot App. collateral relief. A 14. But problems.” allegation attorney Id. But there is no Hazen told him then that a state Brody's impairment, any, that provide protec- if caused the court "shell brief didn't the ¶ miscalculating error the due appears date. See tion that it used to.” Id. 11. It that Chavez, (holding equita- 647 F.3d at 1071 respon- Hazen was correct about that. The “[tjhere tolling appropriate ble was not where dent’s brief in this case informs us that allegations ... post- no at all that [state 2001 Florida’s Rule 3.851 was amended to motions, prohibit filing counsel’s] conviction health had affected his of shell see Fla. filed, knew, to be him- petition October was Hutchinson

Hutchinson at least 19, 2005, had not filed attorneys that his have his federal habeas self could by the Septem- 20, 2005, Rule 3.851 motion his state petition or soon after October (or September 2005 deadline ber days just twenty would been it). deadline, had calculated he one-year limita- expiration after the knew that be- that Hutchinson know We period.7 tions Hutch- 2005 is the date cause October nothing of Yet Hutchinson did the sort penalty perjury, under signed, inson years. did not file his nearly four He motion on the Rule 3.851 verification until petition se habeas in federal court (which attorneys filed in state one of long July which was after the twenty-seven day).6 next Just court state court his Rule 3.851 trial had denied attorneys two days earlier he had told his January motion also Rule motion in state filing 3.851 af- after the Florida Court had 2005 was neces- court July firmed that denial on 2009. More deadline sary prevent federal waited to file his point, Hutchinson ¶A 15. And expiring. App. years, nine federal three drafted, dated, already Hutchinson had 1,374 days five total months and file ready complete and had —a days he learned on October setting all of the claims that wanted out —after ¶¶ attorneys missed the deadline By simply chang- 15-16. to raise. Id. in which that for a state court would have ing the name of court State, 3.851(e)(1)(D); petition abeyance in until his efforts to secure P. v. R.Crim. Gonzalez (Fla.2008), completed. were See 1034 & 9 state collateral relief So.2d n. Weber, 269, 278-79, v. that motions are the Florida Rhines shell stricken (2005). longer S.Ct. 161 L.Ed.2d 440 courts no can be used to meet brief, colleague's that suggestion Our a district reply deadlines. In his Hutchin- might petition without any court dismiss such take issue son does not that infor- abusing by the its discretion is contradicted mation. only authority proposition, that she cites for Concurring Rhines See which is the decision. Although Hutchinson's affidavit and the Op. at 1108-09 n. 21. The signature date federal of his on the habeas Rhines stated in that: beyond dispute petition knew establish he attorneys his had missed the deadline for fil- likely would be an abuse of discretion [I]t writing ing petition, separately his state our deny stay a district and to for court to colleague that Hutchinson had rea- asserts no petition petitioner the a mixed if dismiss petition to son file his federal habeas until exhaust, good cause his failure to had nearly years he four later because relied on potentially mer- his unexhausted claims attorneys’ doing his were assurances itorious, and there is no indication that the necessary protect what was his federal petitioner engaged dilatory intentionally in Concurring Op. rights. habeas at 1108— circumstances, litigation such tactics. In That assertion belied Hutchinson’s stay, district court rather than should statements, own which establish that sworn dismiss, petition. the mixed See Rose attorneys he knew his had missed the dead- Lundy, 455 U.S. at line, yet years realizing that after he still (the ex- 71 L.Ed.2d 379 total attempt made federal no file in court requirement was not intended to haustion petition already he collateral had drafted. “unreasonably impair prisoner's right judges may appli- However feel about the law case, relief”). petitioner’s In such a area, any cable we no to this other obtaining federal review of his interest license a case. to rewrite facts of outweighs competing interests in claims pe- finality speedy resolution federal so, 7. Had dis- titions. Hutchinson done federal Rhines, U.S. at 125 S.Ct. at 1535. trict court could have held his federal habeas period. tolled the federal limitations learned that “his AEDPA clock had ex- pired attorney’s] due to nothing failings” may [his in Hutchinson’s affidavit There is diligence,” id., be “maximum feasible explain delay or in his briefs to his required. which is not But Hutchinson’s nearly years. Nothing. four failure anything get his federal to.do not decide whether Hutchinson We need habeas nearly years filed four extraordinary that an cir- has established after he learned the AEDPA clock way meeting cumstance stood of his run attorneys’ out due to his miscalcu- 2244(d) deadline, § because he lation is not even diligence,” “reasonable showing has not carried his burden of required, which is id. rights diligently. See Hol- pursued The district court did not err in conclud- land, 2562; Lawrence, 130 S.Ct. at ing that Hutchinson was not entitled to 1085; at see U.S. also 1,393 equitable tolling days. Chavez, F.3d at Although AFFIRMED. may Hutchinson’s show that he affidavit diligently attempted to have his state col- BARKETT, Judge, Circuit concurring in give motion filed in time to him the lateral only: the result 2244(d) statutory tolling, benefit Initially, I disagree with the majority’s opportunity does not show that once that holding that Hutchinson was not reason- pursued missed he rights federal ably diligent in pursuing his claims. He Instead, diligently. his affidavit and the did everything reasonable client would other materials he has submitted show lawyers do to assure that his protected his a petition that he had hand that he interests, including imploring lawyers pro could have re-labeled se to file his pleadings in a federal court within three weeks after the timely majority’s manner. The suggestion ran, one-year but he that Hutchinson place- should have filed a years three-and-three-quarter waited be- pro holder simply se habeas fore he filed a se federal habeas peti- logical represented when Hutchinson was diligence. tion. That is not reasonable by lawyers assuring who were him that his lengthy delay

Hutchinson’s his being pursued. claims were pro petition se federal habeas stands in However, no diligent matter how Hutch- stark contrast to petitioner’s diligence the been, inson was or could have as the law in the Holland case. The Supreme Court today, stands this Court still could not very day stressed that “the that Holland grant Hutchinson the relief of equitable discovered that his AEDPA clock had ex- tolling because the Court has pired attorney’s] failings, due to [his Hol- that, notwithstanding held diligence, his a prepared land his pro own habeas responsible defendant is for and must bear promptly se and filed it with the District consequences lawyer’s of negli- his Holland, (em- Court.” 130 S.Ct. at 2565 Lawrence, gence.1 336-37, 549 U.S. at phasis original). filing of 1079; Holland’s his 127 Thompson, S.Ct. Coleman v. 722, 753-54, day federal habeas after he U.S. 111 S.Ct. (internal equitable omitted). tolling; peti quotation In order to a merit marks A law- "(1) yer's negligence tioner must establish that he has been does not constitute an "ex- (2) pursuing rights diligently, traordinary his and circumstance.” See id. at 2564 Florida, extraordinary (citing some stood in circumstance Lawrence v. 549 U.S. Florida, U.S. -, way.” (2007)). Holland v. 127 S.Ct. 166 L.Ed.2d 924 Here, (2010) S.Ct. lawyers negligently L.Ed.2d 130 where Hutchinson’s (1991); Generally an to principal agent chooses also Martinez L.Ed.2d 640 see 7); (2012) U.S. -, (slip at op., Ryan, 566 specific purpose,4 act on his behalf Holland, at lawyer-client and in a traditional relation- ship, lawyer represent a client to and hires holdings

The of Lawrence Coleman application on the continued premised legal legiti- in a matter. him discrete theory agency inmates of the to death row macy transferring responsibility of See, relationship. e.g., lawyer-client of lawyer from the lawyer’s negligence Thomas, -, Maples v. assumptions that on several client based 181 L.Ed.2d 807 S.Ct. First, it underpin agency relationship. holding that Coleman’s (explaining voluntarily client is assumed agency principles on “well-settled based lawyer competence, dili- chooses his the risk principal law” that “the bears Second, loyalty.5 and it is assumed gence, part of his negligent conduct on the that the client has the direct the below, However, amplified agent”). or, least, lawyer6 very actions of the at the key assumptions underlying none adequate opportunities that constant and relationship to application agency of an client lawyer exist for communication between the a death-sentenced client post-conviction context.2 are valid his lawyer.7 already recognizes equitable When the law assumptions But not apply these do exceptions responsible a client holding row, all of inmates on death almost whom lawyer’s under circum- for his actions their lawyers. do not choose Instead less an consequences, stances with drastic depend appointed made for death must bono exception should also be lawyer’s negli- row inmates so that their who too often lack ex- volunteer counsel preclude gence does not federal review pertise penalty death constitutional claims. See, Maples, representation. e.g., Consequently, the represen- Agency Principles I. provided post- tation in state and federal Death Inmates Row proceedings conviction is too often inade- relationship permit

An exists to agency person one to act on behalf of another.3 act, post-conviction petition performance late what- filed his state too lawful do, person may statutorily lawfully acting ever a if toll the federal habeas behalf, deadline, may negligence does constitute own and in his own lawfully delegate "extraordinary agent."). to an an circumstance." (Second) Foreword, Agency of 4. See Restatement Liptak, Agency

2. See Adam and (1958) fiduciary ("Agency is the relation Equity: Why do we blame clients for mistakes?, con- which results from manifestation of lawyers’ 110 Mich. L.R. person sent one to another the other (2012) (stating lawyers and fit that "clients subject act his behalf and to his shall agency imperfectly. Agency model law is control, act.”). other so consent, and consent choice, concepts built on the of free loyalty, it find is not unusual 1.1, See Rules of Conduct R. lawyer-client relationships 5. Model Prof'l some or (2009). missing."). 1.3 all of these elements are 1.2(a). id. 6. See R. Floyd 3. See R. Mechem Treatise on the Law (2d ("It 1914) gener- Agency § 80 ed. is the of agency may al rule an be created for the 7.See id. R. 1.4. Maples, For former Florida Su-

quate.8 example, S.Ct. at is “[n]early Raul Cantero preme Court Justice stated alone” in not “guaranteeing] representa- [appointed] that “some of the counsel have indigent tion to capital defendants in post- experience penalty- little or no death conviction proceedings,” id. at 918. In- They right cases. have not raised the stead, Alabama primarily relies on the ef- ... issues raise too [and] [s]ometimes forts of out-of-state volunteer lawyers to many haven’t issues and still raised the post-conviction representation. handle Id. Supreme ones.”9 Florida Court Jus- agency analogy The also breaks down tice Barbara has also Pariente stated that because death row inmates have a limited counsel, for [appointed] “[a]s we have ob- ability to communicate with their law- deficiencies we would definitely served yers.11 often Prisons are located in far- endorse the need for increased standards flung places that are difficult for lawyers counsel, [appointed] for as well as a con- to reach lawyers and often the are not tinuing system screening and monitor- even located within same state as their ing to ensure minimum levels of compe- death row Additionally, clients. inmates Likewise, tence.”10 Alabama’s death row to phones, restricted access the inter- representation prob- suffers the same net, and law libraries. In Lawrence and lems. The Court noted that not Holland, it was the lack of only does “low access to eligibility Alabama set re- word lawyers appointed processing systems and a quirements repre- library law indigent trial,” capital hampered sent defendants at the petitioners’ ability to com- Steiker, Improving Represen- 8.See Jordan M. where safeguard this critical constitutional Establishing ineffective.”); Capital Right tation in so Cases: undermined as to Ameri- Association, Evaluating can Bar Baselines Federal Habeas to Promote Struc- Fairness and States, Accuracy Penalty Systems: tural Within 34 Am. in State Death J.Crim. L. The Reform (2007) Penalty (discussing Florida Report 297-300 Death "crisis” Assessment iv 2006) ("Florida’s (September quality representation statutory quali- in both the requirements fication stages capital capital trial and collateral cases); registry attorneys short require- fall see also Jon B. Gold & Lisa Green- man, ments of the ABA Guidelines ... Update and are Quality on the Cost De- qualified insufficient to ensure counsel Representation Penalty Federal Death fense inmate.”). every death-sentenced (discussing repercussions Cases 87-88 inadequate representation in federal habe- context); Association, Caputo, See Marc Justice Lawyers American Bar Eval- Blasts Herald, uating Accuracy Appeals, Over Death Fairness and in State Row Miami Death Jan. Penalty Systems: at 1B. Penalty Alabama Death (June 2006) Report Assessment ("Although inadequate long anecdotes about Gary Blakenship, defenses Registry Lawyers De- lore, part compre- have been of trial court News, Meeting, at Committee Fla. Bar fended study definitively hensive 2000 April shows at 5. poor representation major been a has cause capital of serious errors in cases as well as a petitioner’s "[A] habeas limited major wrongful factor in the conviction and communicate with the outside world is a bar- defendants.”); sentencing to death of innocent ability diligently request rier to his infor- Association, Evaluating American Bar from, of, Fair- mation the conduct monitor Accuracy Penalty Sys- ness and Death in State defaulting attorney.” Wilpert, See Marni von Georgia Penalty Comment, tems: The Death Assessment Holland v. Florida: A Prisoner’s 2006) ("The Report (January Chance, Error, iii State of Geor- Attorney Last and the Antiter- gia virtually providing indigent Penalty alone in not rorism and Death Act’s One- Effective defendants sentenced to death with counsel Year Statute Limitations Period Federal of Review, proceedings. for state habeas The Corpus lack of Habeas 79 Fordham L.Rev. 1429, (2010). counsel on ... state habeas creates a situation 1469 1106 attorneys. super-maximum security Brief ceration at [a

municate with their 25, Lawrence, n. for Petitioners at 11 549 prison] synonymous with extreme iso- (No. 05-8820); 327, 127 1079 Austin, U.S. S.Ct. lation.” v. Wilkinson 545 U.S. 1., 2 Brief on the Merits at n. Petitioner’s 2384, 125 S.Ct. 162 L.Ed.2d 174 (No. 09-5327). Holland, In 130 S.Ct. 2549 (2005). Finally, psychological effects Alabama, phone death row inmates’ calls spending periods solitary of extended minutes, twenty-five are limited to commonly known as SHU confinement— prison determining officials the schedule syndrome may impair an inmate’s mental — frequency phone and of conversations.12 capabilities to the extent that his active According Georgia’s inmate orientation participation litigation impossi- becomes handbook, phone Georgia prisons calls ble.15 are limited to fifteen minutes.13 Finally, even if death row inmates were Moreover, if a death row inmate is held given attorneys to access their security in a super-maximum prison or a obstacles, without these formidable most (“SHU”), segregation housing unit death row inmates lack the skills and intel- are, may most these barriers be even more supervise, police lect to direct or the activi- First, difficult to overcome. access to ba- lawyers way ties of their that the reading writing may sic and materials be agency paradigm “Capital assumes. in- entirely restricted, depending on how mates uniformly indigent, almost security much of a threat the inmate is often illiterate and uneducated.”16 The See, Banks, e.g., deemed to be. Beard v. dangers of shortcomings these are all the 165 L.Ed.2d pronounced more in the context of federal (2006) (upholding prison regulation habeas proceedings, unique “the and com- that denies access to written material to plex nature” of which the inmates). Second, violent communication long has recognized. See McFarland with the outside world becomes even more Scott, U.S. challenging more “In restricted. vir- (1994). 129 L.Ed.2d 666 complexity “[T]he state, tually every death-row inmates are of our jurisprudence this area makes ‘locked down’ in their cell for most unlikely that capital defendants will day, have little or no access to educational able to file prison petitions or other successful for collater- programs, experience great isolation and loss of al relief without relationships.”14 persons the assistance of Kennedy observed, As Justice has 855-56, “incar- learned in the law.” Id. at Corrections, (2003) Department (describing Alabama In- syndrome the SHU Telephone System Reg. mate Admin. long-term solitary and the effects of confine- V(K) (2005). inmates); Grassian, prison ment on Stuart Psychiatric Solitary Confinement, 22 Effects of Corrections, Georgia Department Pol’y U. Wash J.L. & 333-45 Orien- (same); tation Handbook see also Miller ex. rel. available at Jones v. Stew- for Offenders art, (9th Cir.2000) (“[I]t http://www.dcor.state.ga.us/pdf/GDC_Inmate_ 231 F.3d Handbook.pdf. accepted is well that conditions such as those present psychologi- in SMU II ... can cause Blume, decompensation point cal Killing Willing: 14. John that individu- H. "Vol- unteers,” may incompetent.”). als become Competency, Suicide and 103 Mich. (2004). L.Rev. Jr., Howard, Defunding 16.Roscoe C. generally Craig Organizations Haney, 15. See Post Conviction Mental Health Defense Counsel, Long-term Solitary ''Supermax” Right Issues in Denial 98 W. Va. 124, 863, Confinement, (1996). Delinq. 49 Crime & 130- L.Rev. 902

H07 (internal omitted); (7th Cir.1998). alterations S.Ct. 2568 F.3d 787 Courts rou- Giarratano, quoting Murray v. 492 tinely U.S. pro decline to consider se pleadings 109 S.Ct. 106 L.Ed.2d when an inmate represented by counsel. J., O’Connor, J., (Kennedy, joined by con- McNeil, See Downs 520 F.3d id., curring judgment); in see also at (11th Cir.2008) (“[E]ven a savvy petitioner, (Stevens, J., by joined 109 S.Ct. 2765 may who see the running clock out his Marshall, Brennan, Blackmun, JJ., time, only cajole habeas can plead [or] with (“[T]his penalty dissenting) Court’s death to his counsel file the petition timely.”) jurisprudence unquestionably is difficult (citations omitted); see also 11th Cir. R. master.”). lawyer even for a trained to (“When party represented 25-1 a by acknowledgment its Given the chal- counsel, may the clerk not accept filings lenges proceedings present habeas to law- from party.”).18 yers, surprising Supreme it is not that the many These princi- obstacles render the Martinez, recently swpra, Court noted in pal-agent relationship inapplicable in the 9), at-(slip op., prisoner, that “[t]he post-conviction context. An inmate’s ina- law, comply unlearned in the not may with bility supervise to and control the actions procedural may the State’s rules or misap- lawyer makes this relationship far prehend the substantive details of federal more akin to paradigm of an indepen- Although constitutional law.” Martinez dent contractor than a agency traditional specifically dealt with the of a pris- relationship.19 negligent The acts of an pursue post-conviction oner to a in independent contractor, unlike those of an court, state there can be no doubt that the agent, imputed are not the employer to present same the federal very reason that employer lacks post-conviction context as well.17 power meaningfully supervise the Moreover, a habeas petitioner per is not contractor. mitted to interfere with lawyer’s deter reality quality of post-convic- regarding minations claims raise. penalty representation tion death Barnes, available 745, 751, 103 See Jones v. indigent (1983). 3308, 77 inmates death row does L.Ed.2d Even if meet the a recognition client wanted to correct Court’s lawyer’s mistakes, Congress he would not intended these be entitled to do inmates to so. prisoner A does not “quality legal representation” have a to file access to represented se pleadings by while counsel. when mandated the statutory right Gwiazdzinski, See United States v. counsel. McFarland U.S. at Michigan, See Halbert v. present U.S. the form of a letter or (2005) (“Six- any L.Ed.2d 552 application the like requesting relief in ty-eight percent prison form, population authorities, of the state citing or presenting ar- school, complete high (b) many did not guments: lack shall not furnish the Court literacy the most basic copies skills.... Seven correspondence out between or counsel, of ten among inmates fall in the lowest out any party two of five represented or literacy-marked by inability attorney."); 7.1(F) levels of an (same); to do an R. N.D. Fla. 2.03(d) such basic a tasks write brief ("Any party letter to M.D. Fla. R. for whom bill, explain general an error on credit card appearance use a of counsel has been made schedule, writing argument bus or state an any step shall not thereafter take heard article.”) (inter- lengthy newspaper made in a proper person, prior case absent omitted). Court.”). nal alterations and citations leave of al., (“Any party S.D. Fla. R. repre- Page also 7.7 19.See W. Keeton et Prosser and (a) attorney (5th ed.1984). sented an shall not: address or Keeton on Torts (“[F]ederal motion so to corpus post-conviction his state as habeas 114 S.Ct. filing the for Ms federal habe- in toll deadline important play role to particularly has a majority recog- petition.20 Even the in the im- fairness promoting fundamental reasonably that Hutchinson was dili- also nizes penalty.”); the see position of death (d) (2006) (recodifi- up lawyers that his filed 3599(a)(2), gent to the time § 18 U.S.C. (1988)). relief. 848(q)(4)-(10) § his motion state cation of 21 U.S.C. Hutchinson rea- statutory steps could for a to other provided What Congress sonably not have pro- have taken? Should he in habeas qualified counsel federal him lawyers his when assured trusted ceedings light in of the “seriousness comply with they were aware and would unique ... and the possible penalty certainly is no deadlines? There litigation.” filing 18 all nature of the complex 3599(d). Indeed, a expectation civil client will shadow the U.S.C. every to ensure that all Court, lawyer’s his move recognizing complexity of feder- the in filings are met and all held that the statu- deadlines proceedings, al habeas contrary, a represented order. On the begin prior must even tory right to counsel to his every right client has assume that petition. of a habeas federal McFarland, competently discharge his lawyer will at 114 S.Ct. U.S. duties. Nonetheless, majority the concludes that surrounding Hutchin-

The circumstances reasonably diligent Hutchinson was be- lawyers’ negligent filing of his state son’s in should have filed a se federal post-conviction motion this case illus- cause he and asked to have held the faced a death row habeas trate difficulties abeyance efforts to secure state attempts diligently to until his inmate who work row, completed. relief were This lawyers. his death collateral While on required surely action cannot be maintained communication—to course of Hutchinson lawyers legal representa- his of a client when he has ability best of his —with timely prisoner them to file tion.21 A reasonable would repeatedly asked Rhines, opinion judgment signed curring with the 20. The that Hutchinson the Rule fact Stevens, Ginsburg Justice with whom Justices 2005 does not 3.851 motion on October joined, conditioning Breyer dispute observed that beyond knew that his establish stay-and-abeyance procedure “good attorneys the deadline for missed simply on a of “inten- cause” instead lack Although kept petition. state Hutchinson tionally dilatory litigation open tactics” left asking petition, lawyers file his state "[t]he the door for trickiness some exhaus- nothing he knew the there indicate that requirements good to infect tion issues precise equally It deadline. consistent with cause....” Id. at 125 S.Ct. 1528. simply that he wanted his the facts to believe Moreover, concerned an issue distinct accepted Rhines and later his at- state from the case hand which some habeas torneys’ advice that the deadline was October corpus had been exhausted in state claims stay-and-abey- not. court and others had Indeed, cir- guarantee procedure ance was endorsed in limited there is no that such accepted by preserve petition- placeholder petition in order to cumstances would Weber, obtaining of his er’s interest in review claims. federal district court. See Rhines v. contrast, In Id. at 125 S.Ct. 1528. abeyance inquiry ("[S]tay good cause in this case would have L.Ed.2d 440 negligence. In attorney only limited involved issues should be available circum- addition, attempt to only appropriate when Hutchinson's stances ... and is n good upon stay-and-abeyance procedure prevail district court determines there was petitioner’s his access to information present turned on both cause for failure courts.”). procedure, presumption that and a to the state In con- about claims first

1109 comply own for which pleadings no to file his the failure to with a cause that it reason that it is assumed is simple deadline is to negligence.” attributable here, job to so. lawyer’s Especially his do 1316, v. Davenport, United States 668 F.3d lawyers repeatedly (11th Cir.2012). Hutchinson’s as- 55(c) where 1324 Similarly, Rule time, on they him that would file sured applied has been to a give client relief an pursue Hutchinson had no reason to entry from the of a default was caused Reasonably alternative avenue of relief. by the negligence attorney of an under the relying lawyers’ his assurances “good Shepard cause standard.” Claims doing necessary were what was to Serv., Assocs., Inc. v. William Darrah & protect rights, his federal habeas Hutchin- (6th Cir.1986). 190, Excep- F.2d not se son did file a federal habeas tions such as those available under Rules until it was too late. 55(c) 60(b) because, pure exist unlike a principal-agent relationship, most clients Exceptions II. Responsibility to Client are perfect not to able exercise control Lawyer’s Conduct lawyers. over their pre row Death inmates should not Likewise, 11, under agency Rule their having cluded federal claims principle aside in put order for courts to negli their lawyer’s reviewed because of direct lawyers sanctions toward not —and gence. Exceptions principle that all their impli- clients—when clients are not responsible negligence for the clients cated in or offending attorney aware lawyers their exist elsewhere law. error, faith, negligence bad or that fall example, more coun important For when within a lawyer’s professional con- zone of stake, tervailing values are at various rules trol. Under Rule con- “[s]anctionable procedure provide of civil courts with dis by duct a party’s counsel does not neces- procedural cretion excuse defaults in sarily parlay into sanctionable conduct See, lawyer negligence. e.g., cases of Dove Nezhat, a party.” Byrne v. 261 F.3d (4th CODESCO, 569 F.2d Cir. (11th Cir.2001) (citation omitted). 1978) (“[T]he attorney sanctions for ne if at glect possible by should be borne all And under Rule a district court has attorney rather than himself apportion broad discretion sanctions client.”); Washington Monthly Jackson v. discovery lawyers abuses between Co., (D.C.Cir.1977) F.2d n. 23 Devaney clients. v. Cont’l Am. Ins. (“[A] comprehends hardly discretion sound Co., (11th Cir.1993). 989 F.2d a pointless exaction retribution. Dis example, For Rule 37 construed missals for misconduct attributable law authorize the sanction “be- dismissal clients, yers, [way] in no to their invar petitioner’s noncomplianee cause of awith may iably penalize the innocent and let the pretrial production order when it been has scot-free.”). guilty off comply been established failure to has willfulness, 60(b)(1), inability, example, provides Rule re- due to and not to bad faith, fault judgment petitioner.” lief from final for excusable Societe neglect, “encompass Participations can situations Internationale Pour In- attorneys' granted stay-and-abeyance by he did not believe his advice that been a district application for state deadline for applying good court cause standard and preserve relief order to unlikely panel of this Court would corpus federal habeas 20, October reversed a district court denial thereof on an circumstances, 2005. Under these is far abuse of discretion review. from certain that Hutchinson would have Holland, 130 S.Ct. at Commerciales, corpus.” Rog- habeas S.A. v. et dustrielles omitted) (holding 1087, 2 marks ers, (quotation (1958). statutory filing held deadline one-year This Court has that the L.Ed.2d subject or other simple negligence petitions is party’s for federal habeas that “[a] Holland, misunderstanding of Thus, in in a grounded equitable tolling). action dismissal.” not warrant question court order does as is a the same presented which Comm’n Opportunity Employment Equal here, Supreme Court the presented F.2d University, 693 Troy v. State equity one of how inquiry as framed Cir.1982). (11th Malautea v. See also the feder acknowledging applies while still Co., Ltd., F.2d Motor Suzuki at filing deadline. See id. statutory al Cir.1993) (11th (stating that “Viola- that the counter The Court noted 2563. discovery by simple caused a order tion of weighs more vailing value of federalism inability misunderstanding, or negligence, failing comply heavily in the case of justify Rule 37 default comply not a will rules than it does procedural a state’s dismissal.”). judgment or fil tolling of the habeas equitable federal only concerned “with wholly ing re- deadline which is row inmates Making death Id. these lawyer’s negligence timing a does rules.” With sponsible federal mind, lawyers timely rejected will assert in ensure that considerations not row clients previously unqual clients’ claims. Death approach their a se to the per lawyers little to hold “a must bear the petitioner ified rule that And a negligence. for their accountable attorney error” in the context of risk of row inmates for punishing death policy case. Id.22 Holland’s improve not the timeli- such mistakes does recently Maples, in 132 S.Ct. More liti- lawyers’ actions. While civil ness of lawyer’s conduct held that a the Court lawyer’s for a mis- gants can seek relief of his death that constitutes abandonment lawsuit, there through malpractice take provide inmate client will also row remedy row inmate. is no death equitable tolling of the necessary basis for forecloses con- lawyer’s negligence aWhen The Court federal habeas deadline. row entirety of the death sideration of conclusion, in part, this because reached claims, result is the inmate’s federal acknowledge an ex- agency principles even penalty of the death without imposition that a client assumption ception federal review. the risk of the acts or omissions must bear examples cases and illustrate These of abandonment. lawyer of his in the case in forge exceptions values countervailing Id. here is countervailing value the law. However, equitable tolling only to grant to federal re- protection complete lawyer in abandonment cases of of a row inmate’s federal habe- view death does something gross negligence akin to premised, part, on petition, which is Holland, enough. far 130 S.Ct. go not principles have tradi- “equitable [which] (Alito, J., judg- concurring law of at 2567 tionally governed the substantive granted him petition, the court importance eral habeas broader The crucial equitable tolling highlighted California, availability habeas relief on his Faretta subsequent developments in Holland's L.Ed.2d 562 U.S. Upon to the district Tucker, case. court, eventual remand 06-civ- claim. Holland v. No. granted equitable toll- Holland (order 2012) (S.D.Fla. March ing merits of the and then considered the corpus). granting part petition for habeas in Holland’s fed- constitutional claims raised ment) equitable tolling in (“Allowing cases

involving gross ordinary rather than attor- I make this in support affidavit ney only fail negligence would to make my claim that I am equitable entitled to cases; light prior of our it would sense tolling. impractical also be extreme.... July On the Florida Su- aptly gross negli- has been said that [I]t preme Court affirmed convictions and gence ordinary negligence with a vitu- sentences, July and on the man- added.”). perative epithet Where is the date was issued. equity denying the same relief to one 3. In August Harry Brody and just inmate the acts or because omissions Hazen, Jeff lawyers, registry were ap- lawyer slightly of his less egregious were pointed to my postconvic- assist me with Instead, lawyer? than another inmate’s tion remedies. reality is that death row inmates’ ac- 10, 2004, August 4. On I my received competent, post-conviction to legal cess first Brody letter from Mr. and Mr. Haz- representation is at best inconsistent and en, and the next I very day, sent them a their at worst non-existent and thanking letter them taking my case. freely actively partici- communicate and pate litigation seriously compro- 18, 2004, August On I received con- reality, mised. I question Under this Harry Brody firmation that and Jeff Haz- whether strict adherence to the principle appointed en my lawyers, were as new I a death row inmate must bear was excited to hear from them and wrote consequences lawyer’s back negligence very day, thanking next them for just. my fair or acknowledging letters; my previ- since

ous lawyers had not answered or acknowl- APPENDIX A edged any my letters. On my I had THE IN UNITED STATES DISTRICT Hazen, first meeting with Mr. and during THE COURT FOR NORTHERN meeting explained the postconvic- DISTRICT OF FLORIDA PENSA- tion process and how he and Mr. Brody COLA DIVISION planned get and, me a new trial through HUTCHINSON, JEFFREY GLENN Pe- that, prison. released from titioner, 7. On I my October had first meeting Harry Brody, with and during McNEIL, A.

WALTER Secretary meeting, Brody me, “Look, as Mr. told Corrections, you’re we Department Florida know innocent we’re going (His McCOLLUM, to get you and IRA out Attorney W. as the of here.” words Ias them.) Florida, recall Respondents. General of This made me so happy that I began cry. It was the first time that I Case No. 5:09-cv-261-RS lawyer had thought that I would stand up truly for me. I believed Mr. Brody

Capital Case help would to exonerate me. AFFIDAVIT JEFFREY OF GLENN 8. On October I had another HUTCHINSON Hazen, meeting during Mr. Hutchinson, I,Jeffrey Glenn am the Pe- I meeting, him asked if he or Mr. Brody cause, titioner above-styled and had contacted of the witnesses that hereby affirm that present would need to be at the evidentia- and smelled “No,” visibly disoriented me, not to seemed but He told hearing.

ry alcohol, fact that he strongly despite plen- have “we’ll worry about that because mints. I “Altoids” breath eating (His words later on.” for that ty of time partying if him he been asked them.) I recall subject changed the and he night before I talked to November 9. On it; we still worry about saying, “Don’t phone during prearranged Brody Mr. (His time to file the 3.850.” plenty I ex- that conversation call, during them.) Ias recall words run- regarding the concerns my pressed 12, 2005, I had another May On 2244(d)(l)’s one-year ning of 28 U.S.C. Hazen, I during which meeting with Mr. fact that and the nothing my concerns again voiced about any of the witnesses contacted had not witnesses, being regarding done at the evi- present need to be that would filing a “shell-brief’ I asked about again Brady response, dentiary hearing. In Mr. one-year period limitations prevent time, me, we have worry the told “Don’t my petition, since expiring from on (His year to file the 3.850.” almost a ready not motion was still the rule 3.851 them.) I recall words as me that there Hazen assured file. Mr. rule I an- time” to file the “plenty had still of December was 10. On motion, it “was not due and that Brody, during 3.851 Mr. meeting with other (His I words as recall months.” several my concerns again expressed I them.) one-year period running of the about they fact that still limitations and the meeting July I had 14. On the witnesses contacted Hazen, had not dur- Brady Mr. and Mr. with both present at the evi- directly need to be that would I asked them about ing which (which dentiary hearing. motion was still fifing the rule 3.851 finished) not why they had still not and I another March 11. On only to not allow a “shell-brief’ Hazen, I during which meeting with Mr. all of the evi- investigate time to enough to ensure him to file a “shell-brief’ asked the witnesses to contact all of dence and period limitations one-year testify at the evidentia- that would need to expire, not filing my would one- prevent but also to ry hearing, any they had not contacted since still expiring from on year period limitations pres- that would need be the witnesses Brody, who was petition. Mr. my 2254 At that evidentiary hearing. ent at the alcohol, smelted of sweating profusely and claimed that “a shell-brief Mr. Hazen point suddenly got up very angry and became that it used protection provide doesn’t I asked Mr. meeting left the room. and to”, me that “we still have but he assured about?”, Hazen, was that all “What get everything done.” plenty of time to just having a lot replied, Hazen “He’s Mr. them.) (His Ias recall words (His words as 1 personal problems.” them.) recall 14, 2005, I had another April 12. On I Harry Brody, during which meeting with an- I had September On him about whether or not pointedly asked Brody Mr. meeting with both other Hazen) (Mr. could file they Brody and Mr. Hazen, point I told them during which Mr. in time to my prevent rule 3.651 motion terms to “either in no uncertain blank and immediately or expir- from motion one-year period my limitations file rule 3.851 myself.” file It discharge you and Brody I will my petition. Mr. ing on Brody Mr. Mr. point remaining making my At that Hazen initial 2254 peti- — promised—guaranteed timely. me tion both assured — they file the motion or be would Wherefore, I ask that request- the relief 28, 2005, though September they fore went ed in granted, or for such days say on to that we had 90 after the other relief may just deem mandate issued the Florida was Su and proper. Court, preme so the rule motion 3.851 due until actually “October 20th.” VERIFICATION OF DOCUMENT (Their them.) as I words recall Once I hereby declare under penalty perju- again I them that if did they told not file ry that I have read this Affidavit and that immediately, the rule motion I 3.651 the facts matters stated in it are true myself, would file it because was the and correct. only way prevent one-year I could Executed on: expiring my petition. again And Mr. Brody both June “guaranteed” and Mr. me Hazen submitted, Respectfully rule would file the 3.851 motion no later Jeffrey Glenn Hutchinson than # 124849-P2214S that premise 16. Had it been for Union Correctional Institution Brody Hazen, from Mr. I Mr. would th 7819 NW 228 Street have discharged them and filed a se rule 3.851 to prevent motion 26 U.S.C. Raiford, FL 32026-4420 2255(d)(l)’s one-year period limitations expiring. exhibits re- spectively, facsimiles of the Notice of Pro

Se Status and Rule 3.851 Motion that I

would have filed on September but for promise.1 MILLER, Plaintiff-Appellant, Jason A. promise, Mr. Despite Brody my end Mr. did not Hazen file rule 3.851 FINANCE, LLC, CHASE HOME days motion until October after Defendant-Appellee. they promised me that would do so 21 days my one-year period after No. 11-15166 expired. limitations had Non-Argument Calendar. sum, In if Brody Mr. Mr. Haz- Appeals, United States Court of en had not lied to me I would have dis- Eleventh Circuit. charged them and personally my ini- April tial rule 3.851 motion on 2005, a data which would have tolled the

one-year six days convenience,

1. For the I inspect Court’s have word- copy Court wish to processed pleadings however, the handwritten and let- original copies, handwritten I will why ters that are attached as That exhibits. gladly make them available. they are described as "facsimiles”. Should

Case Details

Case Name: Hutchinson v. Florida

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Apr 19, 2012

Citation: 677 F.3d 1097

Docket Number: 10-14978

Court Abbreviation: 11th Cir.