Ronald Bert Smith v. Commissioner, Alabama Department of Corrections

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, (“AED-PA”), 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 AED-*1268PA’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 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, 121 S.Ct. 82, 148 L.Ed.2d 44 (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, 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.

*1269On 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.

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, 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 informa 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 filing fee was finally paid on February 6, 2002, at which time the state court considered *1270Smith’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 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 certio-rari 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, 121 S.Ct. 361, 148 L.Ed.2d 213 (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 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 *1271(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 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 informa 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, — U.S. -, 130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010) (internal quotation marks omitted); Lawrence v. Florida, 549 U.S. 327, 336, 127 S.Ct. 1079, 166 L.Ed.2d 924 (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 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, — U.S. -, 132 S.Ct. 912, 922, 181 L.Ed.2d 807 (2012). However, there are circumstances where “an attorney’s unprofession*1272al 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 all of the surrounding circumstances5 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 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 informa 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 *1273attorney, 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 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 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, 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 informa pauper-is 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 Mas*1274sey 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 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 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.