Lead Opinion
Robert Bryant Melson appeals the district court’s dismissal of his 28 U.S.C. § 2254 federal habeas corpus petition as untimely. The district court rejected Mel-son’s argument that the one-year statute of limitations for filing a federal habeas рetition should be equitably tolled, finding
I. PROCEDURAL AND FACTUAL BACKGROUND
Melson was convicted of three counts of capital murder on April 26, 1996, and was sentenced to death on May 16, 1996. On direct appeal, the Alabama Court of Criminal Appeals and the Alabаma Supreme Court affirmed the conviction and sentence. Melson v. State,
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, a state prisoner must file an application for a writ of habeas corpus in federal court within one year of the date that his state court judgment becomes final. 28 U.S.C. § 2244(d)(1). However, the one-year deadline is statutorily tolled while “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” Id. § 2244(d)(2). Accordingly, Mel-son had to file a petition under Rule 32 of the Alabama Rules of Criminal Procedure (“Rule 32 petition”) by March 6, 2002, in order to toll the federal deadline.
Alabama does not provide counsel to indigent capital defendants in post-conviction proceedings and Melson was left unrepresented after the Supreme Court denied his petition for a writ for certiorari. Melson was assured by his former counsel that the Equal Justice Initiative, a nonprofit organization, would find a volunteer attorney to take his case and file in both state and federal courts for habeas relief. In November 2001, Melson’s former counsel told him that Ingrid DeFranco, an attorney from Colorado, had agreed to represent him. DeFrancо was not licensed to practice law in Alabama, but met with Melson in December 2001 and promised him that she would obtain pro hac vice status through a local attorney. Melson did not hear from DeFranco again and wrote to her in February 2002 to inquirе about his federal habeas petition, saying that he was losing sleep because he did not know whether the federal deadline had passed.
On March 4, 2002, two days before the AEDPA statute of limitations was due to run, DeFranco filed а Rule 32 petition in the Etowah County Circuit Court. However, DeFranco had not yet obtained pro hac vice status in Alabama and, further, had failed to verify the petition as required by the Alabama Rules of Criminal Procedure. See Ala. R.Crim. P. 32.6(a) (“A proceeding under this rule is commenced by filing a petition, verified by the petitioner or the petitioner’s attorney, with the clerk of court.”). Consequently, the circuit court dismissed the petition as not properly filed. Melson points out that, although the circuit court order states that the Rule 32 petition was dismissed “due to lack of verification,” any pleading filed by an out-of-state attorney who has not obtained pro hac vice status is to be stricken as a “nullity” under Alabama law. Black v. Baptist Med. Ctr.,
Because thе amended Rule 32 petition was timely filed under Alabama law, it was considered by the state courts. However, the circuit court denied relief on October 17, 2002, holding that the petition failed to raise a material issue of fact оr law, that it failed to state a claim for which relief could be granted, and that Melson’s claims were insufficiently pled. The clerk forwarded a copy of the dismissal order to Melson and, in December 2002, sent Melson a packet of documents informing him of his right to appeal the dismissal in state court. Mel-son testified at the evidentiary hearing that he did not understand what the dismissal order or documents meant. His lawyers, DeFranco and Collins, never properly filed a notice of appeal from the dismissal of the Rule 32 petition and Mel-son’s appeal was dismissed as untimely on December 16, 2002. Neither DeFranco nor Collins ever informed Melson that his Rule 32 petition had been dismissed or thаt they missed the deadline for filing the notice of appeal, resulting in the dismissal of the appeal as untimely.
On February 11, 2003, the Alabama Attorney General’s office sent a letter to Melson, informing him that his Rule 32 proceedings were сomplete and that the State planned to set an execution date unless Melson filed a federal habeas corpus petition, which, in the State’s view, would be untimely. Melson testified that, until he received this letter, he was unаware that his Rule 32 petition and appeal had been dismissed. A few days after receiving the letter, Melson wrote to De-Franco on February 13, 2003, for an explanation. She responded on March 3, 2003, that Collins had failed to timely file the notice of appeal, that she was in the process of requesting an out-of-time appeal, and that she planned to file the federal habeas corpus petition after the state appeal was resolved. However, neither Mel-son nor his attorneys took any action to file the federal petition until almost two years after Melson received the Attorney General’s letter.
On December 13, 2004, Melson, through different сounsel, filed a habeas corpus petition in federal court pursuant to 28 U.S.C. § 2254. This was more than two years after the federal AEDPA deadline had passed. The district court dismissed the petition as time-barred. This Court affirmed the dismissal. Melson v. Allen,
A petitioner is entitled to equitable tolling of AEDPA’s one-year filing deadline “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.” Holland,
First, although the Supreme Court has made clear that missing a filing deadline due to a miscalculation is a “garden variety claim” of attorney negligence that does not constitute an extraordinary circumstance, id. at 2564, Melson argues that DeFranco’s failure to timely file his state Rule 32 petition was due not to a simplе miscalculation, but to her complete lack of knowledge regarding Alabama’s verification requirements. Melson contends that representing a death row inmate without knowing or bothering to learn the basic procеdural rules for filing in state court is the type of egregious attorney misconduct that justifies a finding of extraordinary circumstances.
In addition, Melson argues, regardless of the quality of DeFranco’s representation, when she unsuccessfully attempted to file Melson’s original Rule 32 petition, thereby causing him to miss tolling the federal filing deadline, she had not yet obtained pro hac vice status and, therefore, was not licensed to practice law in Alabama. Consequently, although De-Franco purported to represent him, she did not have the legal authority to act on Melson’s behalf at the time that the AED-PA statute of limitations expired. See Maples v. Thomas, — U.S. -,
We find that we need not address Melson’s arguments pertaining to whether his attorneys’ conduct constituted an “extraordinary circumstance” because we agree with the district court that Melson did not exercise reasonable diligence in prosecuting his federal habeas case. While a petitioner is only required to exercise “reasonable diligence,” not “maximum feasible diligence,” Holland,
Accordingly, because Melson failed to demonstrate that hе exercised reasonable diligence in pursuing his federal remedies, he is not entitled to equitable tolling of the AEDPA statute of limitations. We affirm the district’s court dismissal of Melson’s federal habeas petition as untimely.
AFFIRMED.
Concurrence Opinion
specially concurring:
I agree that, under our precedent, Mel-son cannot be said to have exercised “reasonable diligence” as required by Holland, v. Florida, — U.S. -,