Ronald Bert Smith v. Commissioner, Alabama Department of Corrections , 703 F.3d 1266 ( 2012 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-13802
________________________
D.C. Docket No. 5:05-cv-01547-LSC-JEO
RONALD BERT SMITH,
Petitioner - Appellant,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(December 28, 2012)
Before TJOFLAT, BARKETT and HULL, Circuit Judges.
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PER CURIAM:
Ronald Bert Smith appeals the dismissal of his federal habeas corpus petition
brought pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996, (“AEDPA”), Pub. L. No. 104-132, 110 Stat.
1214. The district court dismissed the federal petition because it was not filed
within AEDPA’s one-year statute of limitations. The only issues here involve
tolling.
The district court rejected Smith’s argument that his application for state
post-conviction relief statutorily tolled AEDPA’s one-year filing deadline,
concluding that Smith had not “properly filed” his state petition within the one-year
federal deadline. The district court also rejected Smith’s argument that if the filing
deadline was not statutorily tolled, it should be tolled on equitable grounds because
of his attorneys’ conduct, which Smith argues constituted abandonment.1 After
review and oral argument, we affirm.
I. AEDPA’s One-Year Limitations Period
On November 8, 1994, Smith murdered convenience store clerk Casey
Wilson during an armed robbery. After a jury trial, Smith was convicted in
1
The district court denied Smith’s application for a certificate of appealability. Later,
this Court granted Smith a certificate of appealability on whether Smith’s state petition was
“properly filed” and whether the district court erroneously denied Smith’s claim of equitable
tolling or his request for an evidentiary hearing on his equitable tolling claim.
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Alabama of capital murder. Although the jury recommended by a vote of seven to
five that he be sentenced to life imprisonment without the possibility of parole, the
trial court declined to follow the jury’s recommendation and sentenced him to death.
On direct appeal, the Alabama Court of Criminal Appeals and the Alabama Supreme
Court affirmed Smith’s conviction and sentence. Smith v. State, 756 So. 2d 892(Ala. Crim. App. 1998), aff’d, Ex parte Smith, 756 So. 2d 957 (Ala. 2000). The
United States Supreme Court denied Smith’s petition for a writ of certiorari on
October 2, 2000. Smith v. Alabama, 531 U.S. 830 (2000).
AEDPA provides that a state prisoner has one year from the date his state
court judgment becomes final on direct review to file an application for a writ of
habeas corpus in federal court. 28 U.S.C. § 2244(d)(1). There is no dispute here
that Smith’s federal petition, which he filed on July 19, 2005, was filed well more
than one year after October 2, 2000, “the date on which [his state court] judgment
became final by the conclusion of direct review[.]” Id.AEDPA provides that the one-year deadline is statutorily tolled during the
time in which “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) (emphasis added). Smith, therefore, had one year from October 2,
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2000 in which to properly file his state petition pursuant to Rule 32 of the Alabama
Rules of Criminal Procedure, (“Rule 32 Petition”), so as to toll the federal deadline.2
II. Factual Background
After his direct review was concluded, Smith sought new counsel to represent
him in his state and federal post-conviction proceedings. In late 2000, volunteer
lawyers and law students working with the Equal Justice Initiative (“EJI”) prepared
a draft Rule 32 petition for Smith. However, the EJI attorneys’ busy caseload did
not permit them to represent Smith in court. Thus, in early 2001, EJI tried to recruit
an attorney to take Smith’s case pro bono.
On March 8, 2001, an EJI attorney wrote Smith a letter informing him that EJI
was looking for someone to represent him and that they had several months in which
to find someone. The EJI attorney letter to Smith stated:
[T]he students this fall helped prepare a petition for you to file pro se if
a lawyer is not found. That will ensure that you don’t miss any
deadlines. . . . We will continue to look for someone for you in the next
couple of months. . . . In the meantime, as we look for counsel, know
that a petition is being drafted for you so that you will not miss your
deadline.
2
Under Alabama’s rules of criminal procedure in effect at the time of Smith’s state court
proceedings, the state statute of limitation for a Rule 32 Petition was two years from the date when
the state appellate court issued its Certificate of Judgment of his conviction and death sentence.
Thus, the deadline by which Smith had to file his Rule 32 Petition to comply with the state’s filing
limitation rules was later than the date by which Smith had to file that same petition in order to toll
the AEDPA filing deadline.
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In July 2001, Tennessee attorney William Massey agreed to represent Smith
in his Rule 32 proceedings. On July 26, 2001, EJI Executive Director Bryan
Stevenson, a lawyer, sent Massey a letter thanking him for agreeing to represent
Smith. Stevenson told Massey that EJI staff was “putting together the case
materials for [Smith’s] case,” and the letter enclosed “a copy of [EJI’s]
postconviction manual.” Stevenson’s letter stated that he expected to “speak with
you [Massey] by phone before Friday, July 27, about case name and details and
[will] send a record to you.”
Also on July 26, 2001, EJI’s Stevenson wrote Smith a letter, informing him
that Massey had “agreed to take your case” and that Smith would “hear from him
[Massey] very soon.” Stevenson’s letter to Smith further stated: “To make sure that
you can appeal your case in federal court, a preliminary Rule 32 petition may first be
filed, followed later by an amended petition after Mr. Massey learns more about
your case.”
Because Massey was not admitted to practice in Alabama, he needed local
counsel in Smith’s Rule 32 proceedings. C. Wade Johnson, an Alabama attorney,
agreed to act as local counsel. The circumstances of Johnson’s agreeing to
represent Smith are unclear, but Smith states that Massey “recruited” Johnson.
On September 27, 2001, within AEDPA’s one-year period for statutory
tolling, Smith’s attorneys filed the Rule 32 Petition with the state court. However,
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Smith’s attorneys Massey and Johnson failed to include either the filing fee or a
motion to proceed in forma pauperis. It is unclear whether Johnson or Massey filed
the Rule 32 petition, but it is undisputed that Smith’s attorneys sent no filing fee or in
forma pauperis petition.
The record suggests that Massey’s firm (through either Massey or another
attorney) filed the Rule 32 Petition and then sent a copy to Johnson. We say this
because the record contains a copy of a letter, dated September 26, 2001, from C.
Michael Robbins, an attorney at Massey’s firm, to Johnson that states, “Enclosed
please find a copy of the Petition filed September 28, 2001. Please call if you have
any questions or concerns.” The enclosure the letter contained is not in the record.
The Rule 32 Petition has Massey’s name and law firm address as well as Johnson’s
name and law firm address. The only signature on the petition is Johnson’s.
On October 15, 2001—thirteen days after AEDPA’s limitations period had
run—Johnson’s law firm in Alabama informed Massey by letter that the Rule 32
Petition had been returned by the Clerk’s office with a note advising that “a filing fee
of $154.00, or informa [sic] pauperis, is required to file the Petition” and asked
Massey to “please submit the filing fee and the application for pro hac vice to our
office at your earliest convenience, so that we may get this Petition filed.” Smith’s
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filing fee was finally paid on February 6, 2002, at which time the state court
considered Smith’s Rule 32 Petition properly filed under Alabama’s filing rules.3
Smith states in his brief that Massey paid the filing fee, and this assertion has
some record support, too. The filing fee was paid two days after an attorney for the
State informed Johnson (by letter) and Massey (by facsimile) that Smith’s state
limitations period was about to run. And by February 2002, Johnson was on
disability inactive status with the state bar and was not representing his clients any
longer. That leaves Massey.
At some point on or before February 20, 2002, Massey found new local
counsel for Smith’s case. On March 25, 2002, Alabama attorney Brian M. White
entered an appearance for Smith. Attorney White later associated another Alabama
attorney, Charles Pullen. On October 2, 2002, Massey’s firm notified White and
Pullen that, given the two Alabama attorneys’ representation of Smith, Massey and
his firm would withdraw.
White and Pullen represented Smith through the conclusion of the Rule 32
proceedings. After an evidentiary hearing, the state court eventually denied relief
3
The state court’s “Case Action Summary” lists as the first action in the notes section the
handwritten notation of “Petition for relief—check received” with a date of February 6, 2002.
Additionally, the file-stamped copy of Smith’s Rule 32 Petition shows the original September 27,
2001 date crossed out, with a hand-written date and notation below it stating, “February 6, 2002
check received.” The state court’s docket does not identify who paid the fee, just that it was paid
by check.
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on all of Smith’s many claims in May 2003. The Alabama Court of Criminal
Appeals affirmed and the Alabama Supreme Court denied Smith’s petition for a writ
of certiorari on July 15, 2005.
III. Statutory Tolling
Although the February 6, 2002 filing was timely under Alabama’s two year
statute of limitations, it was not within the one year statute of limitations required by
AEDPA. Relying on statutory tolling, Smith argues that we should consider the
Rule 32 Petition as having been “properly filed” on September 27, 2001, when it was
originally submitted to the Clerk, albeit without the filing fee or a motion to proceed
in forma pauperis. However, Alabama law precludes such a construction of
AEDPA’s requirement for a “properly filed” state petition. See Artuz v. Bennett,
531 U.S. 4, 8 (2000) (“[A]n application is ‘properly filed’ when its delivery and
acceptance are in compliance with the applicable laws and rules governing filings.”).
Alabama law requires that a Rule 32 petition “be accompanied by the filing fee
prescribed by law or rule in civil cases in the circuit court unless the petitioner
applies for and is given leave to prosecute the petition in forma pauperis.” Ala. R.
Crim. P. 32.6(a). Alabama courts have unequivocally required that one of these
formalities, either the payment of the filing fee or the filing of an in forma pauperis
motion, be completed in order for a Rule 32 petition to be considered properly filed.
See, e.g., Ex Parte Carter, 807 So. 2d 534, 536–37 (Ala. 2001) (holding that where
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neither a filing fee nor a motion to proceed in forma pauperis were filed with a Rule
32 petition, the Alabama circuit court lacked jurisdiction to consider the petition
precisely because the petitioner had omitted them); Hyde v. Alabama, 950 So. 2d
344, 353 (Ala. Crim. App. 2006) (“A Rule 32 petition is deemed filed for purposes
of the limitations period the date the petition, accompanied by a request to proceed
in forma pauperis, is submitted to the circuit court, not the date the circuit court
grants the request to proceed in forma pauperis.”); Clemons v. State, 55 So. 3d 314,
333-37 (Ala. Crim. App. 2003) (“[I]n this case, the petition that counsel attempted to
file on December 27, 1999, was not accompanied by a filing fee or a request to
proceed in forma pauperis. Therefore, the petition was not properly filed at that
time, as contemplated by Rule 32.6(a), Ala. R. Crim. Pro.”), rev’d on other grounds,
Ex parte Clemons, 55 So. 3d 348 (Ala. 2007), overruled in part by Hyde, 950 So. 2d
at 353. 4 Accordingly, we find no reversible error in the district court’s
determination that Smith’s federal habeas petition was time barred because it was
4
Smith’s reliance on Hyde as support for his position is unpersuasive. In Hyde, the state court
was willing to treat the date of the original submission of the Rule 32 petition as the properly filed
date because the petitioner had fully complied with the state court filing fee rules by filing a
motion to proceed in forma pauperis and it was the court that caused the delay by not ruling on the
motion to proceed in forma pauperis for some time. 950 So. 2d at 353. Hyde’s rationale is
simply inapplicable here, where neither the filing fee nor motion for in forma pauperis was filed.
Nor do we find Garrett v. State, 644 So. 2d 977 (Ala. Crim. App. 1994), overruled by Ex parte
Jenkins, 972 So. 2d 159 (Ala. 2005), applicable to support Smith’s argument that his filing date
should relate back to the date that his petition was originally sent to the Clerk. Garrett addressed
the requisite form for a Rule 32 petition. It is not applicable to the circumstances here, especially
in light of the Alabama law explicitly addressing the failure involved in this case.
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not filed within AEDPA’s one-year statute of limitations, which was not statutorily
tolled because Smith’s Rule 32 Petition had not been “properly filed” during
AEDPA’s one-year limitation period. See 28 U.S.C. § 2244(d)(2).
IV. Equitable Tolling
Turning to Smith’s final argument, we likewise find no error in the district
court’s determination that the circumstances surrounding his attorneys’ failure to
pay the state court filing fee or file an in forma pauperis motion entitle him to
equitable tolling of the federal filing deadline. 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 v. Florida, 130 S. Ct. 2549, 2562
(2010) (internal quotation marks omitted); Lawrence v. Florida, 549 U.S. 327, 336
(2007).
With regard to diligence, the defendant is required to exercise “reasonable
diligence” rather than “maximum feasible diligence.” Holland, 130 S. Ct. at 2565(internal citations and quotation marks omitted). Our Court likewise has noted that
“due diligence . . . does not require a prisoner . . . to exhaust every imaginable option,
but rather to make reasonable efforts.” Aron v. United States, 291 F.3d 708, 712
(11th Cir. 2002). “[T]he due diligence inquiry is an individualized one that must
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take into account the conditions of confinement and the reality of the prison system.”
Id. (internal quotation marks omitted).
In this case, we need not decide whether the facts establish that Smith was
sufficiently diligent in pursuing his rights because, in any event, Smith has not
demonstrated that an “extraordinary circumstance” prevented him from filing his
Rule 32 petition before the AEDPA limitations period expired. As to exceptional
circumstances, the general rule is that “when a petitioner’s postconviction attorney
misses a filing deadline, the petitioner is bound by the oversight and cannot rely on it
to establish cause.” Maples v. Thomas, 132 S. Ct. 912, 922 (2012). However,
there are circumstances where “an attorney’s unprofessional conduct can . . . count
as an ‘extraordinary circumstance’ justifying equitable tolling.” Id. at 923; see id.
at 927 (holding that the particular attorney misconduct in that case rose to the level
of abandonment of a client and constituted an extraordinary circumstance); see also
Holland, 130 S. Ct. at 2563 (rejecting a per se rule that “grossly negligent” attorney
conduct can never amount to a showing of extraordinary circumstances to warrant
equitable tolling).
Smith argues that in Holland, the Court did not limit its consideration of
Holland’s claim to the simple failure to timely file the federal petition, but addressed
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all of the surrounding circumstances 5 when concluding that Holland’s lawyer’s
misconduct may have constituted “far more than ‘garden variety’ or ‘excusable
neglect.’” Id. at 2564. Smith argues that the conduct of Massey and Johnson
likewise constituted abandonment or, at the minimum, such a gross breach of
professional conduct that he has satisfied the extraordinary circumstances element
for equitable tolling under Maples and Holland. Specifically, Smith argues that
Johnson, his Alabama counsel, was unable to competently represent him at the time
he was supposed to properly file his Rule 32 Petition and in post-conviction
proceedings generally, as a result of Johnson’s long and ongoing history of abuse of
prescription drugs and crystal methamphetamine. Smith points out that while
Johnson was supposed to be representing Smith, he was on probation for a public
intoxication conviction and often required assistance from other attorneys in
handling his cases due to his drug addiction. The affidavit of Johnson’s former
legal assistant asserted that Johnson was often intoxicated when he came into the
office and that, upon occasion, his staff had to retrieve Johnson from his home in
5
These circumstances included failing to file Holland’s federal habeas petition on time “despite
Holland’s many letters that repeatedly emphasized the importance of his doing so,” failing to
research the proper filing deadline “despite Holland’s letters that went so far as to identify the
applicable legal rules,” not informing Holland in a timely manner that the Florida Supreme Court
had ruled on his case “despite Holland’s many pleas for that information,” and an ongoing lack of
communication from Holland’s lawyer “despite various pleas from Holland that [the attorney]
respond to his letters.” Holland, 130 S. Ct. at 2564. The Court concluded that these various
violations of “fundamental canons of professional responsibility . . . seriously prejudiced”
Holland. Id. at 2564–65.
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order to prepare him to attend court. Less than a month after Smith’s Rule 32
Petition was submitted to the Alabama state court improperly on September 27,
2001, Johnson was charged with nine counts of possession of a controlled substance,
and shortly thereafter, the Alabama State Bar appointed a supervising attorney to
take over Johnson’s files, transferring him to disability inactive status. During the
same time period, Smith alleges that Johnson experienced personal financial
problems, including a voluntary bankruptcy filing. Finally, in August 2002,
Johnson committed suicide.
Smith points out that the mere failure to pay the filing fee or to submit an in
forma pauperis motion with his Rule 32 Petition is akin to the failure to timely file a
federal petition in Holland. Yet, he argues, the circumstances surrounding
Johnson’s so-called representation of Smith were as, if not more, egregious than the
violations of the “fundamental canons of professional responsibility,” that the Court
in Holland suggested could constitute “extraordinary circumstances.” Holland, 130
S. Ct. at 2564.
However, even if Smith establishes that Johnson’s conduct constitutes an
extraordinary circumstance that contributed to the failure to toll the federal deadline,
he must also show the same for his out-of-state attorney, Massey. Smith alleges
that Massey never obtained pro hac vice status in Alabama, and therefore, if Massey
had tried to file the Rule 32 Petition without Johnson, the Rule 32 Petition would
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have been stricken due to Massey’s failure to obtain pro hac vice admission in
Alabama. See Black v. Baptist Med. Ctr., 575 So. 2d 1087, 1088 (Ala. 1991)
(concluding that a complaint filed by an out-of-state attorney who had no local
counsel at the time and who failed to comply with Alabama’s mandatory pro hac
vice rules “was a nullity”). As a result of his failure to obtain pro hac vice
admission in Alabama, Smith argues Massey was unauthorized to act on Smith’s
behalf in his state court proceedings, thereby constituting abandonment. Smith also
points to Massey’s withdrawal from his representation in October 2002 as further
evidence of Massey’s abandonment.
Here, we cannot say that Massey’s conduct constitutes abandonment of
Smith. Massey undertook to represent Smith in July 2001. Although the record
does not contain evidence of what communications took place between Smith and
Massey—neither Smith himself nor Massey submitted an affidavit in the district
court—we know that EJI informed Smith on July 26, 2001 that Massey had agreed
to represent Smith and would be contacting him. And Massey took steps on
Smith’s behalf, both before and after the AEDPA limitations period ended: Massey
put his name on Smith’s Rule 32 Petition, 6 he apparently filed the Rule 32 Petition
6
It is unclear to what extent, if any, Massey edited the draft Rule 32 Petition prepared for Smith by
EJI. Massey may have edited the petition heavily or he may have barely changed it at all, but at a
minimum he added his name to it or authorized that it be added.
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and certainly sent a copy to Johnson in September 2001, and he paid the filing fee in
February 2002. And as to the pro hac vice issue, Massey did not file the Rule 32
Petition without having local counsel and thus his not seeking pro hac vice status did
not cause the petition to be stricken. Massey’s pro hac vice status is of no moment
because local counsel was listed on the petition and local counsel’s signature was on
it, too. Also, in February 2002, Massey found new local counsel to replace Johnson
after learning that Johnson had been placed on disability inactive status. Massey
did not withdraw from representing Smith until October 2002, after Alabama
attorneys White and Pullen agreed to take Smith’s case and a full year after Smith’s
AEDPA statute of limitations had run.
Furthermore, none of the circumstances that the Supreme Court found
constituted attorney abandonment in Maples apply to Massey. Massey did not
leave his firm and take a new job that disqualified him from representing Smith, as
Maples’ out-of-state attorneys both did. See Maples, 132 S. Ct. at 924. Nor did
Massey make clear at the outset of his representing Smith that he was not
undertaking any substantive or meaningful responsibility for the case, as Maples’
local counsel did. See id. at 926. In short, this is not a case, like Maples, where the
petitioner’s attorneys were “not operating as his agent[s] in any meaningful sense of
that word.” Id. at 923 (quotation marks and citation omitted). EJI recruited
Massey and sent him a draft Rule 32 Petition; Massey voluntarily took on the case,
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recruited local counsel, and saw that Smith’s Rule 32 Petition was submitted to the
Alabama state court. Massey simply did not include the required fee or in forma
pauperis motion to make the Rule 32 Petition’s filing proper.
Although Massey did neglect to move for pro hac vice status, this fact alone
does not constitute abandonment of Smith under the particular facts of this case. 7
Massey was not admitted to practice in Alabama, but he recruited Johnson, who was.
Massey was in a co-counseling arrangement in which he understood that Johnson
would act as local counsel and was aware that Johnson’s name and signature line
were on the Rule 32 Petition. After Massey learned that Johnson was on disability
inactive status with the Alabama bar, he obtained new local counsel. Smith points
7
The facts here are materially different from Maples. There, Maples’ two out-of-state attorneys
of record did not file a notice of appeal timely and abandoned him by leaving their firm and
stopping work on his case without seeking court permission to withdraw from the case or telling
Maples they were leaving. 132 S. Ct. at 919, 924–25. Although there was some evidence that
other lawyers at that same firm had worked on Maples’ case, that did not matter because the other
attorneys “had not been admitted to practice law in Alabama, had not entered their appearances on
Maples’ behalf, and had done nothing to inform the Alabama court that they wished to substitute
for” the departed attorneys, and thus “none of these attorneys had the legal authority to act on
Maples’ behalf before his time to appeal expired.” Id. at 925–26. The other attorneys’ failure to
inform the court that they were working for Maples and obtain the court’s authorization to act for
him loomed large because this failure—combined with Maples’ abandonment by his attorneys of
record—meant that no one representing Maples obtained a copy of the court’s order denying his
Rule 32 petition in time to file an appeal, causing his claims to be procedurally barred. Id. at 916–
17, 924–26.
Here, by contrast, Massey timely filed a Rule 32 Petition but was negligent in not sending the
filing fee or in forma pauperis application. Massey also (1) put his name on Smith’s Rule 32
petition, thus informing the court of his intention to represent Smith, (2) properly retained an
Alabama attorney to act as local counsel and to sign and serve the Petition, and (3) replaced the
local counsel after learning he could not serve and found new local counsel who entered an
appearance in the case. Moreover, the error here was not abandonment but failure to timely pay a
filing fee, which Massey could have paid (and ultimately did pay) on Smith’s behalf.
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out that Massey’s failure to obtain pro hac vice status “mean[t] that if the Rule 32
petition had been filed by Mr. Massey’s firm, the court could have stricken it on that
basis,” but the Rule 32 Petition also bore Johnson’s name and a signature by (or on
behalf of) Johnson. Moreover, Smith has made no allegations that Massey, on or
before October 2, 2002, when Smith’s AEDPA limitations period expired, was
aware of Johnson’s significant personal and professional troubles such that Massey
should have known that Johnson effectively was incompetent to represent Smith and
that Massey was in effect Smith’s only lawyer. And of course, the Rule 32 Petition
was never stricken because of any pro hac vice issue. It was sent back only for lack
of a filing fee or in forma pauperis motion. Further, when Massey paid the filing
fee, the Rule 32 Petition was accepted.
Thus, Smith has not shown that his attorney Massey abandoned him. Nor
has Smith shown that Massey’s failure to include the filing fee or in forma pauperis
motion with Smith’s Rule 32 Petition differs from simply missing a filing deadline
which, by itself, is attorney error that constitutes no more than “garden variety” or
“excusable neglect.” Holland, 130 S. Ct. at 2564.
Accordingly, we cannot say that Smith has alleged facts that, if proven true,
would constitute extraordinary circumstances sufficient for equitable tolling of the
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federal habeas filing deadline, and therefore conclude that the district court did not
err in dismissing Smith’s federal habeas petition as untimely. 8
AFFIRMED.
8
For the reasons stated herein, we also find no error in the district court’s denial of Smith’s request
for an evidentiary hearing on his equitable tolling claim.
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BARKETT, Circuit Judge, dissenting:
For the reasons articulated in my concurring opinion in Hutchinson v. Florida,
677 F.3d 1097 (11th Cir. 2012) (Barkett, J., concurring in result only), I believe that
it is unjust and inequitable to require death row inmates to suffer the consequences
of their attorneys’ negligence by denying them equitable tolling. Here, although I
agree with the majority that Smith is not entitled to statutory tolling of the federal
habeas filing deadline, I believe that Smith has alleged sufficient facts regarding
both Johnson’s and Massey’s conduct that, if true, merit the finding of extraordinary
circumstances for equitable tolling. At the minimum, Smith should be afforded an
evidentiary hearing to determine if his attorneys abandoned him or engaged in
egregious attorney misconduct sufficient to warrant equitable relief.
Although the majority declines to decide whether Smith was diligent in
pursuing his rights, I believe that Smith’s allegations, if proven true, would be
sufficient to establish diligence for purposes of equitable tolling. Smith alleges that
as soon as his direct appeal concluded he persistently attempted to obtain pro bono
counsel through the Equal Justice Initiative for his state and federal post-conviction
proceedings and was reassured that they would find him a lawyer and that his
deadlines would not be missed. He alleges that once he was advised that Massey
had agreed to represent him, he was again reassured that his state and federal
petitions would be timely filed. Smith then alleges that he received a date-stamped
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copy of his Rule 32 Petition with the state court clerk’s date-stamp of September 27,
2001. Smith argues that he reasonably assumed that this cover page was
confirmation that his Rule 32 Petition had been timely filed on September 27,
2001—the date that was stamped by the court on the caption page. He further
alleges that he had no reason to suspect that he was not being represented by
competent counsel or that his counsel had failed to pay the required filing fee or
submit the in forma pauperis motion with his Rule 32 Petition. He alleges that he
did not discover for some time that Massey had never been properly admitted to
represent him in Alabama by failing to move for pro hac vice admission; that
Johnson was struggling with personally and professionally crippling problems due
to his drug addiction; 1 or that Johnson withdrew from his case and had a trustee
appointed to protect the interests of his clients as of November 26, 2001, at which
time he still did not have a properly filed Rule 32 Petition.2 Moreover, once the
filing fee had been paid in a timely manner under the state rules, the state court
proceeded to adjudicate the merits of Smith’s Rule 32 Petition. When Smith’s state
court post-conviction proceedings eventually concluded upon the Alabama Supreme
1
The district court noted that Smith was unaware that Johnson had a severe drug addiction “which
resulted in his suspension by the Alabama Bar within three months of the filing [of the September
27, 2001] Rule 32 petition and [his] eventual suicide.”
2
Smith also alleges that, Patricia Lackey, the court appointed trustee of Johnson’s affairs, was
unaware that Smith was a death penalty client when she began making inquiries to obtain Smith’s
contact information.
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Court’s denial of Smith’s petition for writ of certiorari on July 15, 2005, Smith
immediately, on July 19, 2005, filed his federal habeas petition. Under these
circumstances, in which Smith has alleged that all of the information provided to
him indicated that he had competent legal representation and that his state and
federal filing deadlines had been met, I would find that reasonable diligence did not
require him to make any additional inquiries as to whether his Rule 32 Petition had
been properly filed in order to toll his federal habeas limitation period. 3
Moreover, Smith also demonstrated that extraordinary circumstances
prevented the timely filing of his federal habeas petition, which contrary to the
majority opinion, I believe Smith has adequately alleged. Although Johnson’s and
Massey’s failure to pay the appropriate filing fee by itself would not suffice to
establish an extraordinary circumstance for equitable tolling, see Maples v. Thomas,
132 S. Ct. 912, 922 (2012), I believe that Smith has adequately alleged that all of the
circumstances surrounding both of his attorneys’ conduct constituted “far more than
[a] ‘garden variety’ [claim of attorney negligence] or ‘excusable neglect,’” Holland
v. Florida, 130 S. Ct. 2549, 2564 (2010). Johnson’s substantial professional and
personal problems stemming from his long and ongoing history of drug addiction
3
The district court’s determination to the contrary that Smith’s allegations demonstrate “complete
inaction” and “cannot rise to the level of due diligence” because he “never expressed concern over
the running of the AEDPA statute of limitations to either his counsel or the state court system” is
thus clearly erroneous.
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and Massey’s failure to obtain pro hac vice status in Alabama constituted
abandonment or at a minimum, a gross breach of professional conduct sufficient to
establish extraordinary circumstances for equitable tolling.
From the beginning of his so-called representation of Smith, Johnson was on
probation for a public intoxication conviction and was actively abusing prescription
drugs and crystal methamphetamine. Reportedly, he often came to his office in a
state of intoxication and on occasion had to be retrieved from his home by his office
staff in order to attend court hearings. From time to time, he also had to call on
other attorneys to assist him in handling his cases. A few months after taking on
Smith’s case, Johnson was charged with nine counts of possession for a controlled
substance after prison officials, at a state prison where Johnson was visiting a client,
noticed Johnson’s dog had been left locked in his car and upon opening the car,
discovered a bag filled with prescription drugs and crystal methamphetamine.
Soon thereafter the Alabama State Bar placed Johnson on disability inactive status
and appointed a trustee to take over his cases. In addition to his severe drug
addiction, Johnson had his own personal bankruptcy litigation to contend with
during the time he was supposed to be representing Smith. And about one year
after Johnson took on Smith’s case, he committed suicide.
These allegations are sufficient to show an egregious breach of Johnson’s
professional ethical obligations to Smith, which, I believe, constitute the sort of
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extraordinary circumstances that merit equitable relief under Holland and Maples.
Johnson’s alleged conduct was comparably egregious to the violations of the
“fundamental canons of professional responsibility,” that the Court in Holland
suggested could constitute “extraordinary circumstances. 130 S. Ct. at 2564; see
also Model Rules of Prof’l Conduct R. 1.16(a)(2) (2009) (stating that an attorney
must withdraw from representation if the “lawyer’s physical or mental condition
materially impairs the lawyer’s ability to represent the client.”); Robertson v.
Simpson, 624 F.3d 781, 784 (6th Cir. 2010) (concluding that, under Holland, an
attorney’s misadvice about a deadline due to cocaine use might constitute an
extraordinary circumstance). At the minimum, the district court should have
granted Smith an evidentiary hearing to allow him to develop the full factual basis of
his claim for equitable tolling.
Moreover, I believe that Massey’s failure to obtain pro hac vice status in
Alabama, when considered in conjunction with Johnson’s inability to competently
represent Smith, is sufficient to constitute abandonment under Maples. Although
Massey agreed to represent Smith, he never sought admission under Alabama’s
mandatory pro hac vice rules and therefore was never authorized to represent Smith
in the Alabama state court proceedings. See Black v. Baptist Med. Ctr., 575 So. 2d
1087, 1088 (Ala. 1991) (holding that a pleading filed by an out-of-state attorney who
has failed to comply with Alabama’s mandatory pro hac vice rule, is to be stricken as
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a “nullity”). Indeed, Smith’s allegations indicate that, other than agreeing to
represent Smith and then a year later “withdrawing” from Smith’s case, Massey did
very little else. Smith alleges that neither Massey nor Johnson prepared the Rule 32
Petition that was filed in his case; they merely filed, albeit improperly, the Rule 32
Petition that had been prepared by a group of law student interns for the Equal
Justice Initiative. Not only did Massey fail to seek admission to practice in
Alabama and fail to properly file the already-prepared Rule 32 Petition, but even
when he was advised by Johnson’s office in October 2001 that he needed to
complete the pro hac vice process and to pay the required filing fee, he did nothing.
Indeed, it was not until several months later and only after the assistant attorney
general for the state advised Johnson (who was no longer Smith’s attorney due to his
disability inactive status) that the state two-year statute of limitations would expire
in four days that Massey paid the filing fee. The only other affirmative step that
Massey took on behalf of Smith was to find new local counsel and withdraw from
representing Smith.
I do not see any material difference between the circumstances surrounding
Massey’s inaction and the attorney conduct in Maples, which the Court concluded
constituted abandonment. 132 S. Ct. at 927. In Maples, the Court noted that once
the out-of-state attorneys of record left their law firm, no other attorneys from the
firm had been admitted to practice law in Alabama, entered their notice of
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appearance on Maples’ behalf, or did anything to indicate that they had the legal
authority to act on Maples’ behalf. Id. at 925–26. Under these circumstances, the
Court concluded that no matter what work the attorneys may have done in their law
office, none of them had the legal authority to act on Maples’ behalf. Id. at 926.
The same can be said for Massey’s role in Smith’s case. His failure to obtain pro
hac vice status in Alabama, a qualification required to represent Smith in Alabama
state court proceedings, rendered him without any legal authority to act on behalf of
Smith at the time critical to preserving Smith’s legal rights. And because Johnson
was never competent to represent Smith, see Model Rules of Prof’l Conduct R.
1.16(a)(2) (providing that an attorney must withdraw from representing a client if
“the lawyer’s physical or mental condition materially impairs the lawyer’s ability to
represent the client”), neither Massey nor Johnson ever meaningfully functioned as
Smith’s attorneys.
25