CHARLENE EDWARDS HONEYWELL, District Judge.
Court-appointed counsel Ryan Thomas Truskoski filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on June 11, 2007 (Doc. #15, Petition), on behalf of Petitioner James D. Ford ("Petitioner" or "Ford"). The Petition challenged Ford's June 3, 1999, state court judgment of conviction for sexual battery with a firearm, aggravated child abuse, and two counts of first degree murder, which was entered in the Twentieth Judicial Circuit, Charlotte County, Florida (case number 97-351-CF) for which Petitioner was sentenced to death. Petition at 1. On September 17, 2009, the Court issued an Opinion and Order that dismissed the Petition as untimely pursuant to 28 U.S.C. § 2244 (Doc. #23, the "September 2009 Order"). On October 30, 2009, the United States Court of Appeals for the Eleventh Circuit denied Petitioner a certificate of appealability in case number 09-14829 (Doc. #29). Petitioner filed a petition for writ of certiorari with the United State Supreme Court. On June 21, 2010, the Supreme Court, in case number 09-7493, vacated the Eleventh Circuit's denial of a certificate of appealability and remanded "for further consideration in light of Holland v. Florida, 560 U.S. ___, 130 S.Ct. 2549 (2010)." See Eleventh Circuit's November 24, 2010 Order (Doc. #38). Accordingly, the Eleventh Circuit remanded this case back to this Court for the "limited purpose of conducting further proceedings and fact-finding — including, if necessary, an evidentiary hearing — consistent with the opinion and judgment of the Supreme Court in Holland. Id. at 2. To address this issue, the Court issued a Show Cause Order to Petitioner pursuant to the limited remand. See December 8, 2010 (Doc. #41). In particular, the Court directed newly appointed counsel, Martin J. McClain, to identify whether "sufficient facts exist which would entitle Petitioner to equitable tolling." Id. Additionally, Petitioner was ordered to submit any evidence in support of his factual allegations that support the doctrine of equitable tolling. Id.
After being granted an extension of time, Petitioner filed a "Response to This Court's Order to Show Cause" on April 11, 2011 (Doc. #44, "Petitioner's Response"). Petitioner did not attach any exhibits in connection with his Response. See generally Id.
Petitioner concedes that Ford's conviction became final on May 28, 2002 and, under the anniversary triggering date, Ford had until May 28, 2003, to file a timely Petition. Petitioner's Response at 2, ¶2. However, contrary to Petitioner's previous recognition that the Petition is untimely,
In the alternative, Petitioner argues that, if the Court finds that the Petition remains untimely, Ford should be entitled to equitable tolling. Petitioner requests an evidentiary hearing to the extent that Respondent disputes "Ford's mental impairments" and "to explore" Truskoski's decision to file a motion for appointment of counsel prior to his filing the instant Petition. Id. at 20, ¶28.
On June 8, 2011, after being granted an extension of time, Respondent filed a "Response to Petitioner's Response to This Court's Order to Show Cause of December 8, 2010" (Doc. #47, "Respondent's Reply"). Initially, Respondent objects to Petitioner's newly raised claim that the Petition is timely filed. Respondent's Reply at 4-7. Respondent also contends that Petitioner is not entitled to an evidentiary hearing regarding Mr. Truskoski's motives for filing a motion for appointment of counsel, because Petitioner's claims are "merely conclusory allegations unsupported by specifics." Id. at 15 (citations omitted). Additionally, Respondent submits that Petitioner has not demonstrated either extraordinary circumstances or reasonable diligence to be entitled to equitable tolling. Id. at 7-14. Consequently, Respondent seeks an order affirming dismissal of the Petition as untimely. Id. at 15.
At the outset the Court must first determine what issues are properly before it. The Eleventh Circuit's November 24, 2010 Order, makes clear that this Court is limited to considering whether Petitioner is entitled to equitable tolling under the standard recently recognized by the United States Supreme Court in Holland v. Florida, 130 S.Ct. 3549. Where the Eleventh Circuit issues a limited remand, "the trial court is restricted in the range of issues it may consider on remand." U.S. v. Davis, 329 F.3d 1250, 1252 (11th Cir. 2003). Indeed, "[a] vacation of judgment for consideration in light of a particular decision is much more limited in nature than a general vacation by an appellate court, and its effect is not to nullify all prior proceedings." Id. (internal quotations and citations omitted). As noted by the Supreme Court, when a district court acts under an appellate court's mandate, the district court
U.S. v. M.C.C. of Florida, Inc., 967 F.2d 1559, 1562 (11th Cir. 1992)(quoting Sanford Fork & Tool Co., 160 U.S. 247, 255 (1895)).
As a result, the Court need not and, indeed, may not address Petitioner's argument that the Petition is timely filed because federal statutory tolling is triggered by the "collateral review process" under Wall v. Kholi, 131 S.Ct. 1278. Instead, the Court's prior rulings that the Petition is untimely and that the filing of a motion for appointment of counsel does not toll the federal limitations period, as well as the Court's factual determinations as to when Petitioner's conviction became final and the date that Petitioner filed his first post-conviction motion to toll the federal limitation period, remain the law of the case; and, these findings will not be revisited by the Court in this Order. Thus, the only issues properly before the Court are: (1) whether Petitioner has demonstrated extraordinary circumstances; and, (2) whether Petitioner has shown reasonable diligence.
The Court has carefully reviewed the parties' respective pleadings, as well as the record, and concludes no evidentiary proceedings are required on the issue of equitable tolling. See Schriro v. Landrigan, 550 U.S. 465, 474-475 (2007). Petitioner, who bears the burden of establishing the need for an evidentiary hearing, has not come forward with any specific facts that would entitle him to equitable tolling. Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011). "An evidentiary hearing may be necessary where the material facts are in dispute, but a petitioner is not entitled to an evidentiary hearing where his claims are merely conclusory allegations unsupported by specifics." San Martin v. McNeil, 633 F.3d 1257, 1271 (11th Cir. 2011).
As more fully explained infra, Petitioner does not proffer any evidence, but rather offers only speculation, about Mr. Truskoski's motive behind his filing of a motion for appointment of counsel in this Court. In order to be entitled to an evidentiary hearing, "[t]he allegations must be factual and specific, not conclusory. Conclusory allegations are not enough to warrant a hearing." Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d at 1061.
Here, Petitioner offers no documentation in support of his Response and does not offer any specific facts that would require an evidentiary hearing. Allen v. Sec'y, Fla. Dep't of Corr., 611 F.3d 740, 763 (11th Cir. 2010). Instead, Petitioner requests an evidentiary hearing "to explore" his conjecture that Mr. Truskoski was self-interested. Because Petitioner offers only speculations as to Mr. Truskoski's alleged motives, the Court finds that an evidentiary hearing is not warranted, and denies Petitioner's request for the same. Schriro, 550 U.S. at 475.
Prior to the United States Supreme Court decision in Holland, the law in the Eleventh Circuit held that absent a showing of bad faith, dishonesty, mental impairment, or divided loyalty, "attorney negligence could never serve as a basis for equitable tolling." Poveromo v. Fla. Dep't of Corr., No. 11-10985, 2011 WL 5965566 (11th Cir. Nov, 29, 2011)(recognizing Holland rejected Eleventh Circuit's standard for finding equitable tolling based upon an attorney's misconduct). For the first time, the United States Supreme Court in Holland conclusively determined that "the timeliness provision in the federal habeas corpus statute is subject to equitable tolling." Id., 130 S. Ct. at 2560. The Holland Court also reaffirmed that a petitioner is "entitled to equitable tolling" only if he can demonstrate "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way" that prevented the timely filing. Id. at 2562-63. However, the Holland Court criticized the Eleventh Circuit's attorney negligence threshold as "too rigid." Id. In particular, the Holland Court opined that the Eleventh Circuit's rule "is difficult to reconcile with more general equitable principles in that it fails to recognize that, at least sometimes, professional misconduct that fails to meet the Eleventh Circuit's standard could nonetheless amount to egregious behavior and create extraordinary circumstances that warrants equitable tolling." Id. at 2563. The Supreme Court offered the following guidance with respect to the "extraordinary circumstances" prong:
Id. at ___, 130 S.Ct. at 2564 (internal citations omitted).
With regard to the diligence prong, the Supreme Court clarified that "[t]he diligence required for equitable tolling purposes is reasonable diligence, not maximum feasible diligence." Id. at 2565. The Holland court in finding petitioner exercised reasonable diligence pointed out that:
Id. (emphasis in original).
Based upon the record as supplemented by Petitioner in his Response, the following facts are relevant to the issues before the Court. On January 11, 2002, the Office of the Collateral Regional Counsel for the Southern Region ("CCRC-South"), who was assigned to represent Ford after mandate on the denial of Ford's direct appeal, filed a "Motion to Withdraw," stating that "CCRC-South cannot provide effective representation to the Defendant at this time due to its current caseload and staff shortages." On February 8, 2002, an order issued granting CCRC's motion and appointing Robert Burr to represent Ford. On May 28, 2002, the United States Supreme Court denied Petitioner certiorari on his direct appeal. Ford v. Florida, 535 U.S. 1103 (2002). Thus, on this date, Petitioner's conviction and sentence became final and the federal limitations period began to run.
On June 17, 2002, a hearing was held in Ford's capital case, and Mr. Burr was removed as Ford's counsel. On June 24, 2002, Mr. Frederick Mercurio was appointed to represent Ford. Mr. Mercurio entered a notice of appearance on July 1, 2002. The circuit court held hearings in connection with Ford's case on the following dates: September 9, 2002, December 9, 2002, March 10, 2003, and May 12, 2003.
On May 28, 2003 — on the one-year anniversary date of the United States Supreme Court denying certiorari — Mr. Mercurio filed a motion for post-conviction relief on behalf of Petitioner with the State court.
On January 5, 2006, the circuit court appointed Mr. Truskoski as registry counsel. Thus, at the time of Mr. Truskoski's appointment, the entirety of the one-year limitations period had already elapsed. Mr. Truskoski filed a notice of appearance in the Florida Supreme Court on January 12, 2006. On March 24, 2006, the Florida Supreme Court entered an order directing Mr. Truskoski to file a reply brief on Ford's behalf by May 29, 2006, and further advised counsel that "the briefs already filed in the above styled case will be considered absent a motion from counsel." Petitioner's Response at 8, n.8. On March 30, 2006, Mr. Truskoski wrote Ford as follows:
Id. at 8-9, ¶11. Ford responded back in a letter dated April 12, 2006, "detailing his thoughts which included his displeasure with the initial brief filed by Mr. Mercurio, his desire for Mr. Truskoski to raise a mental retardation claim, and the errors he saw in both the brief and in his case." Id. at 9, ¶12.
Mr. Truskoski filed a reply brief on behalf of Ford with the Florida Supreme Court on May 18, 2006, prior to his receipt of Petitioner's April 12, 2006 letter. In particular, Mr. Truskoski responded as follows to Ford's April 12, 2006 letter:
Petitioner's Response at 9, ¶12.
Thereafter, Ford sent a pro se pleading, dated June 6, 2006, entitled "Motion to Consider and Seek Mercy for Fairness of an Emergency Nature" to the Florida Supreme Court. Attaching copies of Mr. Truskoski's March 30 and May 19 letters to his pleading, Ford wrote:
Id. at 10, ¶13. On August 22, 2006, after directing Mr. Truskoski to respond, the Florida Supreme Court entered an order stating "Appellant's pro se motion to consider and seek mercy for fairness of an emergency nature is hereby denied." Id.
On October 30, 2006, the Florida Supreme Court heard oral argument on Ford's appeal, and the Court issued an opinion denying Ford relief on April 12, 2007. On April 16, 2007, Truskoski filed a "Motion for Appointment of Counsel for Representation in Federal Habeas Corpus Proceedings in a Capital Case" in the Tampa Division of this Court. See Doc. #1. The Tampa Division transferred the file to this Court, and this matter was docketed as a "miscellaneous case" until Petitioner completed an Affidavit of Indigence, in order for the Court to determine whether Petitioner was entitled to appointment of counsel pursuant to 18 U.S.C. § 3599.
On May 21, 2007, Petitioner filed an affidavit of indigence; and, this matter was assigned the above captioned civil case number. See Docs. ##7, 8. On May 30, 2007, the Court granted Petitioner in forma pauperis status, and granted counsel's motion for appointment in this matter. See Docs. ##11, 12. On June 11, 2007, Petitioner filed the instant Petition in this Court. See Doc. #15.
Based upon these facts, Petitioner alleges that the following two extraordinary circumstances prevented him from timely filing his Petition: (1) Ford's previous counsel, Mr. Truskoski, had an "actual conflict of interest" as evidenced by Mr. Truskoski filing a motion for appointment of counsel before filing a federal petition on behalf of Petitioner; and (2) this Court "failed to promptly rule" on Mr. Truskoski's motion for appointment. Id. at 17-18. As diligence, Petitioner points out that, as demonstrated by the record, Ford is "learning disabled."
Petitioner contends that Mr. Truskoski "had an actual conflict of interest, i.e. divided loyalty which warrants equitable tolling." Petitioner's Response at 19. Petitioner argues that because "Mr. Truskoski was statutorily and contractually obligated to provide Mr. Ford with representation before this Court," id. at 13, ¶16, his motion seeking appointment of counsel "was made to ensure that Mr. Truskoski would be paid by this Court for his work in preparing a federal habeas petition challenging Mr. Ford's conviction and sentence of death." Id. at 11, ¶14. Consequently, Petitioner submits that Mr. Truskoski's filing of a motion to be appointed counsel, prior to counsel filing the Petition on behalf of his client, evidences that Mr. Truskoski "without notifying Mr. Ford, chose to put his own monetary interests first" and constitutes the type of misconduct by counsel that warrants equitable tolling. Id. at 18, ¶25.
Other than Petitioner's own speculation, Petitioner offers no proof that Mr. Truskoski had such an ulterior motive in filing a motion for appointment of counsel in this Court. In fact, the current record demonstrates that Mr. Truskoski previously represented to this Court that he understood that (1) the filing of his motion for appointment of counsel would toll the federal limitations period; and, (2) he was prohibited from filing the Petition in this Court until he was appointed as counsel in this matter. In particular, in response to Respondent's motion to dismiss the Petition as untimely, Mr. Truskoski stated:
Petitioner's Response to Motion to Dismiss (Doc. #17) at 2-3. Mr. Truskoski further averred that it was his understanding that "[i]t was not clear that the undersigned counsel was even going to be appointed to this case." Id. at 3, ¶8. In fact, Mr. Truskoski reiterated his understanding that "[i]n sum, the order granting the appointment of counsel was a mandatory prerequisite to the filing of the instant habeas petition and taking only 12 days to file the petition is due diligence in this regard." Id., ¶10.
Thus, Mr. Truskoski previously stated in a pleading filed in this Court pursuant to Fed. R. Civ. P. 11 that his motives for filing the motion for appointment in this Court were because he understood: (1) that the filing of the motion would toll the federal limitations period; and, (2) that he could not file the Petition prior to being appointed by this Court as Ford's counsel. Mr. Truskoski's understanding on these issues was incorrect, and arguably constituted negligence on Mr. Truskoski's part. However, the Holland decision did not disturb the general principle that simple negligence is insufficient to constitute an extraordinary circumstance to entitle a petitioner to equitable tolling. Holland, 130 S. Ct. at 2564 (recognizing that "`a garden variety claim of excusable neglect,' such as a simple `miscalculation' that leads a lawyer to miss a filing deadline, does not warrant equitable tolling.")(internal quotations and citations omitted). See also, Lawrence v. Florida, 549 U.S. 327, 336 (2007)(finding that counsel's mistaken belief that seeking certiorari from the denial of a state post-conviction motion tolled the federal statute of limitations period did not constitute extraordinary circumstances).
There is simply no evidence that Mr. Truskoski ever misrepresented the status of this case to Ford. At most, Petitioner faults counsel for his alleged shortcomings in failing to include the various substantive issues Ford requested in his reply to the Florida Supreme Court.
Additionally, Petitioner faults Mr. Truskoski for not physically visiting Ford and/or discussing his case with him. Petitioner's Response at 9, n. 9. Again, the Court cannot conceive of how Mr. Truskoski's failure to visit with Ford affected the filing of the instant Petition. See Chavez v. Sec'y, Fla. Dep't of Corr., 647 F.3d 1057, (11th Cir. 2011). Consequently, the Court finds Petitioner has not demonstrated that Mr. Truskoski's filing of a motion for appointment of counsel, or any conduct on behalf of Mr. Truskoski, constituted the type of attorney misconduct to warrant extraordinary circumstances as required By Holland.
Petitioner seeks to assign fault to the Court for its alleged delay in failing to grant Mr. Truskoski's motion for appointment of counsel for 44 days after it was filed, "even though [the] United States Supreme Court is quite clear that Mr. Ford was entitled to the appointment of counsel, McFarland v. Scott, 512 U.S. 849 (1994)." Petitioner's Response at 15, ¶18. Petitioner surmises that had the Court immediately ruled on Mr. Truskoski's motion, and had Mr. Truskoski filed the Petition twelve days after his appointment, then the instant Petition would be timely. Id., n. 16.
Petitioner's argument misstates the record that was before the Court. The record reveals the following. On April 16, 2007, counsel for Petitioner filed a "Motion for Appointment of Counsel for Representation in Federal Habeas Corpus Proceedings in a Capital Case" in the Tampa Division of this Court.
On May 24, 2007, the clerk reassigned this case from the miscellaneous case docket to the civil case docket to Judge Marcia Morales Howard and Magistrate Judge Sheri Polster Chappell. Doc. #8. On May 30, 2007,
Admittedly, a death penalty petitioner is entitled to the appointment of counsel pursuant to 18 U.S.C. § 3599 (a), but only if the Court determines that the petitioner is indigent. McFarland v. Scott, 512 U.S. 849 (1994).
Petitioner identifies correspondence Petitioner wrote to Mr. Truskoski and the Florida Supreme Court during the Rule 3.851 proceedings about his concerns with his case. However, Petitioner indicates that the correspondence addressed Ford's concerns with substantive matters, and does not allege any inactivity on behalf of Truskoski, or any of Ford's prior counsel. Further, Petitioner does not allege that he ever made any inquiries about the federal habeas time-bar issue or attempted to investigate federal habeas law. In fact, Petitioner does not aver that Ford ever expressed a concern about the timeliness issue.
The evidence reveals that Truskoski advised Ford soon after he was appointed to his case, and asked him for his opinions about his prior counsel's filing. Truskoski also responded back to Ford's letter raising various concerns. Thus, unlike counsel's conduct in the Holland case, Mr. Truskoski communicated with his client.
Relying upon Ford's "learning disabled" diagnosis, Petitioner suggests that Ford is absolved of any personal responsibility for ensuring that his rights are protected. Petitioner's Response at 18. Petitioner submits that "a learning disabled Mr. Ford was not and is not equipped to deal with the intricacies of federal habeas law." Id. at 19. The Court acknowledges that Ford is not trained in federal habeas law. However, Petitioner's previous communications with the Florida Supreme Court and with Mr. Truskoski evidence Ford's ability to ensure that his rights are protected. Indeed, Petitioner acknowledges that in his pro se capacity, Ford sought and successfully obtained new post-conviction counsel, which resulted in Mr. Truskoski's appointment. Id. at 7, ¶10. Additionally, Petitioner communicated to Mr. Truskoski his "displeasure" with the initial Rule 3.851 motion, his desire to raise a "mental retardation claim" for the first time, and "errors he saw in both the brief and his case." Id. at 9, ¶12. Petitioner also was not hesitant in submitting another pro se pleading to the Florida Supreme Court to request "a ninety (90) day continuance" so that Mr. Truskoski could "raise the desired meritorious issues" on Ford's behalf. Id. at 10, ¶13. Consequently, the Court finds no evidence in the record to support Petitioner's suggestion that his learning disability rendered him incapable of exercising reasonable diligence.
Here, Petitioner has not shown that he ever expressed any dissatisfaction about the delay in the filing of his State post-conviction motion, or the instant Petition. Nor does Petitioner identify any action Ford undertook to expedite the filing of his federal Petition. Plainly put, Petitioner does not identify any affirmative actions taken by Ford to either inquire or ensure that his rights were being protected. Consequently, the Court finds no evidence that Ford exercised reasonable diligence on his own behalf in this matter.
Based upon the foregoing, the Court finds that Petitioner has neither shown extraordinary circumstances nor reasonable diligence required to toll the statute of limitations. Consequently, the Court finds that Petitioner is not entitled to equitable tolling under the facts presented to the Court.
ACCORDINGLY it is hereby
1. Petitioner's request for an evidentiary hearing, contained within his Response is
2. The Court finds that Petitioner has not demonstrated either extraordinary circumstances or due diligence and thus is not entitled to equitable tolling.
3. The
Ford v. State, 802 So.2d 1121, 1135 (Fla. 2001).
Ford v. State, 955 So.2d 550, 552 n. 4 (Fla. 2007).
