Daniel Lugo v. Secretary, Florida Department of Corrections ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________________
Nos. 11-13439 & 12-13737
_______________________
D.C. Docket No. 1:10-cv-20098-JAL
DANIEL LUGO,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA
DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
______________________
Appeal from the United States District Court
for the Southern District of Florida
______________________
(April 24, 2014)
Before CARNES, Chief Judge, MARTIN and DUBINA, Circuit Judges.
CARNES, Chief Judge:
Daniel Lugo, a Florida death-row inmate, appeals the district court’s
decision dismissing as time-barred his 28 U.S.C. § 2254 petition for a writ of
habeas corpus. He also appeals the denial of his Federal Rule of Civil Procedure
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60(b) motion, which asked the district court to vacate its judgment dismissing his
§ 2254 petition as time-barred. Lugo contended in the district court, as he does
here, that he is entitled to equitable tolling of the one-year statute of limitations for
filing a federal habeas petition under Holland v. Florida, 560 U.S. 631, 130 S.Ct.
2549 (2010). We granted Lugo separate certificates of appealability to appeal each
of the district court’s decisions and consolidated the two appeals. We affirm in
both appeals.
I. BACKGROUND
Lugo was sentenced to death after he was convicted by a jury of thirty-nine
felonies, including kidnapping, attempted extortion, and first-degree murder. See
Lugo v. State (Lugo I), 845 So. 2d 74, 84–92 (Fla. 2003). 1 The facts of the crime,
trial, and sentencing proceedings are detailed at length in the Florida Supreme
Court’s opinion affirming Lugo’s convictions and death sentences on direct appeal.
See id. at 84–119.
1
In total, Lugo was convicted on all of the thirty-nine counts charged against him, which
were:
[F]irst-degree murder (two counts), conspiracy to commit racketeering,
racketeering, kidnaping (two counts), armed kidnaping, attempted extortion,
grand theft (three counts), attempted first-degree murder, armed robbery, burglary
of a dwelling, first degree arson, armed extortion, money laundering (nine
counts), forgery (six counts), uttering a forged instrument (six counts), possession
of a removed identification plate, and conspiracy to commit a first degree felony.
Lugo I, 845 So. 2d at 91 n.30.
2
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The Florida Supreme Court affirmed Lugo’s convictions and death sentences
on direct appeal on February 20, 2003, and denied rehearing on May 2, 2003. Id.
at 74, 119. The judgment became final when the United States Supreme Court
denied Lugo’s petition for a writ of certiorari on October 6, 2003. Lugo v. Florida,
540 U.S. 920, 124 S.Ct. 320 (2003); see also Clay v. United States, 537 U.S. 522,
527, 123 S.Ct. 1072, 1076 (2003) (“Finality attaches when this Court affirms a
conviction on the merits on direct review or denies a petition for a writ of
certiorari, or when the time for filing a certiorari petition expires.”); Bond v.
Moore, 309 F.3d 770, 772–73 (11th Cir. 2002). Lugo had until October 6, 2004, to
file his federal petition for a writ of habeas corpus or to properly file an application
for postconviction relief in state court to toll the time for filing his federal petition.
See 28 U.S.C. § 2244(d)(1)(A), (d)(2); Downs v. McNeil, 520 F.3d 1311, 1318
(11th Cir. 2008) (noting that “the limitations period expires on the anniversary of
the date it began to run”).
Over the course of the collateral review process, and at various times, Lugo
had five different appointed counsel.
A. CCRC-Southern Region
On May 2, 2003, the Florida Supreme Court appointed Florida’s Office of
Capital Collateral Regional Counsel (CCRC)-Southern Region to handle Lugo’s
3
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postconviction proceedings.2 See Fla. Stat. § 27.7001, et seq. (creating and
structuring Florida’s system for providing representation to indigent capital
defendants in collateral proceedings). However, CCRC-Southern Region
withdrew from its representation before Lugo’s judgment even became final on
direct review because it was representing his codefendant.
B. CCRC-Middle Region
On June 9, 2003, CCRC-Middle Region entered a notice of appearance in
state postconviction court, replacing the Southern Region office as counsel for
Lugo. Almost four months later, and three days before Lugo’s convictions became
final on direct review, CCRC-Middle Region filed a motion to withdraw based on
a conflict of interest. That October 3, 2003 motion stated that the CCRC-Middle
Region’s lead investigator had a personal conflict of interest because she feared
2
Under Florida Rule of Criminal Procedure 3.851(b)(1), the Florida Supreme Court,
upon issuance of its mandate affirming a sentence of death, issues “an order appointing the
appropriate office of the Capital Collateral Regional Counsel or directing the trial court to
immediately appoint counsel from the Registry of Attorneys maintained by the Justice
Administrative Commission.” Since 1997, there have been three CCRC regional offices —
Northern, Middle and Southern. See Am. Bar Ass’n, Evaluating Fairness and Accuracy in State
Death Penalty Systems: The Florida Death Penalty Assessment Report 235 (2006) (2006 ABA
Report), available at http://www.americanbar.org/groups/individual_rights/projects/death_
penalty_due_process_review_project/death_penalty_assessments/florida.html; see also Fla. Stat.
§ 27.701. Each CCRC office is responsible for representing persons convicted and sentenced to
death by state courts, within their respective regions, in collateral proceedings in state and federal
court. See Fla. Stat. § 27.702(1)–(2). On July 1, 2003, however, CCRC-Northern was closed by
the Florida legislature as part of a pilot program, and its responsibilities were transferred to a
panel of registry attorneys, compiled and maintained by the Florida Commission on Capital
Cases. Am. Bar Ass’n, supra, at 235. More recently, the Florida legislature enacted the Timely
Justice Act of 2013, effective July 1, 2013, which, among other things, reopened the CCRC-
Northern office. See 2013 Fla. Sess. Law Serv. Ch. 2013–216 (West) (codified in scattered
sections of the Fla. Code).
4
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that conducting an investigation in Lugo’s case could endanger members of her
family in Colombia. For that reason, and pursuant to Fla. Stat. § 27.703(1),
CCRC-Middle Region asked to be permitted to withdraw and for the court to
appoint in its place conflict-free registry counsel qualified under Fla. Stat.
§§ 27.710 and 27.711.
On October 22, 2003, the state postconviction court denied CCRC-Middle
Region’s motion to withdraw. But later, on December 18, 2003, at a court
proceeding where Lugo was not present, that court allowed CCRC-Middle Region
to withdraw. 3 Although the record of that proceeding indicates that CCRC-Middle
Region’s investigator met with Lugo at least twice and that the agency began
collecting records about his case, there is nothing else in it about the extent of
CCRC-Middle Region’s efforts on Lugo’s behalf before it withdrew.
C. Roy D. Wasson
The state court appointed registry attorney Roy D. Wasson on January 16,
2004. Wasson did not file a state postconviction motion on Lugo’s behalf under
Rule 3.851 of the Florida Rules of Criminal Procedure until October 18, 2004.
3
Lugo argued in the district court that he was not given timely notice of CCRC-Middle
Region’s motion to withdraw and was not present at the proceedings removing CCRC-Middle
Region as counsel. He does acknowledge that CCRC-Middle Region advised him that a conflict
existed related to the investigation. Lugo says that had he been timely served with notice of
CCRC-Middle Region’s motion to withdraw, he would have objected and waived any alleged
conflict.
5
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There is more to say about Wasson’s conduct, as well as Lugo’s diligence,
between the time of Wasson’s appointment and his filing of Lugo’s Rule 3.851
motion. While these facts are relevant to an equitable tolling analysis, many of
them were not before the district court when it initially dismissed Lugo’s § 2254
petition. Sorting out when Lugo brought facts to the district court’s attention is
important in our review of the two different district court orders, each with its own
analytical framework and standard of review. 4 At the time it dismissed the § 2254
petition, the district court had before it only the procedural history of the case and
some conclusory allegations by Lugo concerning Wasson. It was not until after
that dismissal and when the Rule 60(b) motion was filed that the most egregious
facts regarding Lugo’s representation were presented to the district court. Because
we consider each appeal in light of what was before the district court when it
issued the relevant decision, we limit our background discussion here to those facts
which were brought to the district court’s attention by Lugo or the State before the
court dismissed the § 2254 petition.
The Rule 3.851 motion filed by Wasson raised various substantive claims on
Lugo’s behalf and alleged that he was not competent to participate in
postconviction proceedings. After Lugo was evaluated and determined to be
4
The district court’s decision on equitable tolling is reviewed de novo, San Martin v.
McNeil, 633 F.3d 1257, 1265 (11th Cir. 2011), but its decision denying the Rule 60(b) motion is
reviewed only for an abuse of discretion, Howell v. Sec’y, Fla. Dep’t of Corr., 730 F.3d 1257,
1260 (11th Cir. 2013).
6
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competent by two state doctors, Lugo filed pro se motions objecting to a
competency hearing and requesting the removal of Wasson as counsel. The parties
later stipulated that Lugo was competent to proceed and he withdrew his motion to
discharge Wasson.
After holding an evidentiary hearing in 2006, the state postconviction court
denied Lugo’s Rule 3.851 motion. On behalf of Lugo, Wasson appealed that
denial to the Florida Supreme Court but did not file a state habeas petition in that
court because he did not find any meritorious issues to raise. 5 Lugo attempted to
file a pro se amended notice of appeal and state habeas petition. He also filed a
motion to remove Wasson as counsel as well as a supplement to that motion. On
February 1, 2008, the Florida Supreme Court denied Lugo’s motion to remove
Wasson as counsel and struck all of Lugo’s pro se pleadings as unauthorized.
On October 8, 2008, the Florida Supreme Court affirmed the denial of
postconviction relief. Lugo v. State (Lugo II), 2 So. 3d 1, 21 (Fla. 2008). Fourteen
days later Lugo filed pro se motions for rehearing and to hold the rehearing in
abeyance pending resolution of bar complaints he had filed against both Wasson
5
Under Florida law, a capital habeas petitioner may file a petition for a writ of habeas
corpus in the Florida Supreme Court, but such a petition must be filed at the same time as the
initial brief is filed in an appeal of a state circuit court’s order on a Rule 3.851 motion. See Fla.
R. Crim. P. 3.851(d)(3). In Florida, a state habeas petition is the proper procedural vehicle for
bringing claims of ineffective assistance of appellate counsel, for example, but not for raising
claims that should have been brought on direct appeal or in a postconviction motion. See
Rutherford v. Moore, 774 So. 2d 637, 643 (Fla. 2000).
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and the United States Attorney for the Southern District of Florida. The Florida
Supreme Court denied Lugo’s abeyance motion on November 4, 2008.
On November 10, 2008, Wasson moved to withdraw from his obligation to
represent Lugo in state and federal postconviction proceedings pursuant to Fla.
Stat. § 27.711. In support of that motion, Wasson stated that he had previously
advised Lugo that he was “unwilling” to represent him beyond challenging the
denial of postconviction relief in state court, and so the Florida Supreme Court’s
affirmance of the trial court’s denial of the Rule 3.851 motion marked the
completion of “all of the work that [he was] willing and able to do on behalf of
[Lugo].” Beyond that, Wasson alleged that an actual conflict of interest between
himself and Lugo existed because Lugo had filed a bar grievance against him
accusing him of misconduct. The State opposed Wasson’s motion to withdraw and
argued that under Fla. Stat. § 27.711 Wasson’s appointment required him to
represent Lugo “throughout all postconviction capital collateral proceedings,
including federal habeas corpus proceedings until the capital defendant’s sentence
is reversed, reduced, or carried out, and the attorney is permitted to withdraw from
such representation by a court of competent jurisdiction.” See Fla. Stat.
§ 27.711(2), (8). On January 22, 2009, the Florida Supreme Court denied
Wasson’s motion to withdraw and denied Lugo’s pro se motion for rehearing.
8
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The Florida Supreme Court issued its mandate on February 10, 2009. The
issuance of the mandate ended any statutory tolling period. See Nyland v. Moore,
216 F.3d 1264, 1267 (11th Cir. 2000) (per curiam) (holding that a state
postconviction motion remains pending until the mandate issues in the appeal).
On March 9, 2009, in the Florida Supreme Court, Wasson renewed his
motion to withdraw, stating that no federal habeas petition had been filed because
the relationship between Lugo and Wasson was “so bad” that Lugo refused to
cooperate. Wasson re-alleged the existence of an actual conflict based on Lugo’s
pending bar grievance against him. The Florida Supreme Court denied Wasson’s
renewed motion to withdraw on April 17, 2009.
On June 20, 2009, Lugo filed a pro se petition for a writ of certiorari in the
United States Supreme Court seeking review of the Florida Supreme Court’s denial
of his motion for postconviction relief. On October 5, 2009, the Supreme Court
denied that petition. Lugo v. Florida, 558 U.S. 867, 130 S.Ct. 182 (2009).
On January 5, 2010, Lugo filed a pro se § 2254 petition in the United States
District Court for the Southern District of Florida, raising four grounds for relief.
He also filed an appendix in support of his petition and a motion to hold the
proceedings in abeyance. The petition asserted it was timely filed because it was
filed within one year of February 10, 2009, the date the Florida Supreme Court’s
mandate had issued in the decision affirming the denial of postconviction relief.
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Lugo’s abeyance motion specifically relied on Holland v. Florida, 560 U.S. 631,
130 S.Ct. 2549, as one of the reasons his petition should be held in abeyance. It
argued:
[T]he U.S. Supreme Court’s certiorari review of Holland v. State of
Florida is likely to impact this case as to the failure of postconviction
counsel to present issues and make filings within the time periods
provided by law so as to preserve a capital defendant’s right to federal
review of habeas corpus claims. There is a high likelihood that Mr.
Lugo must have a viable federal petition pending to avail himself of
any benefit from Holland.
The matter was referred to a magistrate judge who issued an order on January 19,
2010, informing Lugo that his “petition may be barred from consideration” unless
he demonstrated that it was filed within one year from one of the four triggering
events identified in 28 U.S.C. § 2244(d)(1). On the same date, the magistrate
judge issued an order for the State to show cause why the petition should not be
granted, specifically directing the State to address, among other things, “the issue
of whether the limitations period established by 28 U.S.C. § 2244(d) has expired.”
Lugo’s pro se response to the magistrate judge’s order argued that his
petition was timely filed for the reason he gave in his § 2254 petition, namely, that
it was filed within one year of the issuance of the Florida Supreme Court’s
mandate in Lugo II. Alternatively, Lugo asserted that “‘U.S.-State impediments’
prevent[ed] [him] from timely filing a federal habeas corpus petition,” justifying
consideration of his petition in light of § 2244(d)(1)(B). As an example of “U.S.-
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State impediments,” Lugo’s response identified, without meaningful explanation,
“Federalized Anarchy in, so near, and thereafter Mr. Lugo’s direct appeal.”
On March 5, 2010, the State filed a 78-page response to the order to show
cause which included a detailed procedural history of the case. 6 The State’s
response contained several arguments why Lugo’s petition should be dismissed,
including that it was time-barred by the statute of limitations. Specifically, the
State argued that because Lugo did not file his Rule 3.851 motion until October 18,
2004, after the one-year statute of limitations had already expired, his state
postconviction proceedings did not toll the federal statute of limitations. Asserting
that more than one year of untolled time had passed before Lugo filed his § 2254
petition, the State argued that Lugo’s petition be dismissed. The State countered
Lugo’s argument that he had one year from February 10, 2009 — the date the
Florida Supreme Court issued its mandate in Lugo II — by pointing out the United
States Supreme Court’s holding that the judgment mentioned in 28 U.S.C.
§ 2244(d)(1)(A) refers to a state court conviction and sentence. See Burton v.
Stewart, 549 U.S. 147, 156–57, 127 S.Ct. 793, 798–99 (2007).
Lugo, again acting pro se, filed a reply on April 5, 2010, to the State’s
response to the order to show cause. In a section labeled “Statute of Limitations,”
6
On March 8, 2010, the State filed a notice of conventional filing of the state court
record, which consisted of 167 volumes of state court records and pleadings. The State also filed
the record electronically in 474 separate appendices.
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Lugo requested an evidentiary hearing to prove “U.S.-State impediments”
justifying consideration of his petition despite the filing delay. Lugo also alleged
that Wasson had retaliated against him for failing to give Wasson large sums of
money. The retaliation, according to Lugo, consisted of alleged perjury and fraud
in the reasons Wasson gave for not filing a state habeas petition on Lugo’s behalf.
D. Jeffrey E. Felier
After the pleadings were filed, the magistrate judge denied Lugo’s abeyance
motion and sua sponte appointed attorney Jeffrey E. Felier to represent Lugo on
April 20, 2010.7 The order appointing Felier specifically directed him to file a
status report addressing, among other things, “[w]hether this Petition is barred by
the statute of limitations.” Felier filed a status report on June 16, 2010, but it did
not address the statute of limitations issue. On December 20, 2010, Felier filed an
amended § 2254 petition. Citing Holland, the petition itself alleged that
“professional negligence and egregious conduct by Court-Appointed Registry
Counsel, Roy D. Wasson supports the need for equitable intervention by this
Court.” Specifically, the amended petition said that Wasson “failed to present and
argue mutually agreed upon causes during the course of his representation of
[Lugo].” The amended petition also alleged in a conclusory fashion that Lugo was
7
Wasson never filed a notice of appearance or any pleadings in federal court on Lugo’s
behalf, despite his statutory, contractual, and ethical obligations to continue his representation
into federal court. We were advised during oral argument that the Florida Supreme Court has yet
to allow Wasson to withdraw from representing Lugo.
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entitled to equitable tolling because he was acting diligently and extraordinary
circumstances prevented him from filing his petition on time. See Holland, 560
U.S. at 649, 130 S.Ct. at 2562.
After further briefing and without an evidentiary hearing, the district court
dismissed the amended petition as untimely.
E. Orlando do Campo
On July 27, 2011, Felier filed a timely notice of appeal from the dismissal of
the amended federal habeas petition and a motion for the district court to appoint
counsel for the appeal. 8 The court appointed attorney Orlando do Campo to
represent Lugo and terminated Felier’s representation. On February 3, 2012,
attorney do Campo filed a Rule 60(b) motion. The Rule 60(b) motion and its
supporting documents brought to the district court’s attention, for the first time,
specific and detailed information about Wasson’s conduct and Lugo’s troubled
relationship with him. After briefing and without an evidentiary hearing, the
district court denied the Rule 60(b) motion on June 12, 2012.
8
On August 8, 2011, Lugo filed a pro se motion to alter or amend the judgment pursuant
to Federal Rule of Civil Procedure 59(e), which the district court denied as untimely. We do not
review the district court’s denial of the Rule 59(e) motion because it is beyond the scope of the
COA in this case. See Murray v. United States, 145 F.3d 1249, 1250–51 (11th Cir. 1998) (per
curiam) (explaining that our appellate review is limited to the issues specified in the COA).
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II. STANDARDS OF REVIEW
A. Dismissal of the § 2254 Petition
We review de novo a district court’s decision to dismiss a § 2254 petition
and its decision to deny equitable tolling. San Martin, 633 F.3d at 1265. But we
review the district court’s determination of the relevant facts, such as the
petitioner’s diligence, only for clear error. Id. “Under this standard, we must
affirm a district court’s findings of fact unless the record lacks substantial evidence
to support them.” Id. (quotation marks omitted). We review the denial of an
evidentiary hearing on equitable tolling only for an abuse of discretion. Chavez v.
Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). Thus, if we
agree with the district court that the facts alleged in the habeas petition and other
pleadings properly before the court are not enough to make Lugo’s petition timely
under 28 U.S.C. § 2244(d), “then it was not an abuse of discretion for the district
court to deny him an evidentiary hearing, and the court did not err by dismissing
his petition.” Id.B. Denial of the Rule 60(b) Motion
We review the denial of a Rule 60(b) motion only for an abuse of discretion.
See Howell, 730 F.3d at 1260. Under this standard, we affirm unless we determine
that the district court applied an incorrect legal standard, failed to follow proper
procedures in making the relevant determination, or made findings of fact that are
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clearly erroneous. Mincey v. Head, 206 F.3d 1106, 1137 n.69 (11th Cir. 2000). A
district court’s decision to grant or deny an evidentiary hearing in a Rule 60(b)
proceeding is also reviewed only for an abuse of discretion. See Cano v. Baker,
435 F.3d 1337, 1342 (11th Cir. 2006) (per curiam); see also Schriro v. Landrigan,
550 U.S. 465, 473–75, 127 S.Ct. 1933, 1939–40 (2007).
III. DISCUSSION
A. Dismissal of the Petition as Untimely
AEDPA imposes a one-year statute of limitations on the filing of § 2254
petitions. 28 U.S.C. § 2244(d)(1). The limitations period begins to run from the
latest of four different events, only one of which is relevant to Lugo’s case: “the
date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.” Id. § 2244(d)(1)(A).9
AEDPA’s one-year limitations period is subject to statutory tolling for “[t]he
time during which a properly filed application for State post-conviction or other
9
We recognize that Lugo’s pleadings in the district court alleged that “U.S.-State
impediments prevent[ed] Lugo from timely filing a federal habeas corpus petition.” If proven,
an allegation like that could provide a different triggering date for the application of AEDPA’s
one-year deadline. See 28 U.S.C. § 2244(d)(1)(B) (providing an alternative limitations trigger
running from “the date on which the impediment to filing an application created by State action
in violation of the Constitution or laws of the United States is removed, if the applicant was
prevented from filing by such State action”). Lugo never developed the factual or legal basis for
this ground in the district court. We also consider the issue abandoned because he did not argue
it in his brief to this Court. See Isaacs v. Head, 300 F.3d 1232, 1238 (11th Cir. 2002); Hartsfield
v. Lemacks, 50 F.3d 950, 953 (11th Cir. 1995). In any event, controlling precedent forecloses
Lugo’s position. See Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir. 2005), aff’d, 549 U.S.
327, 127 S.Ct. 1079 (2007) (holding that providing an incompetent postconviction attorney “is
not the type of State impediment envisioned by § 2244(d)(1)(B)”).
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collateral review with respect to the pertinent judgment or claim is pending.” Id.
§ 2244(d)(2). Because AEDPA’s limitations period is not jurisdictional, it “is
subject to equitable tolling in appropriate cases.” Holland, 560 U.S. at 645, 130
S.Ct. at 2560. A habeas petitioner “is entitled to equitable tolling only 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.” Id. at 649, 130 S.Ct. at
2562 (quotation marks omitted). “The diligence required for equitable tolling
purposes is reasonable diligence, not maximum feasible diligence.” Id. at 653, 130
S.Ct. at 2565 (internal citation and quotation marks omitted).
The district court correctly determined that the state court judgment became
final when the Supreme Court denied Lugo’s petition for a writ of certiorari on
October 6, 2003. See Bond, 309 F.3d at 772–73. Lugo had until October 6, 2004,
to file his § 2254 petition, absent statutory or equitable tolling. See Downs, 520
F.3d at 1318.
After “reviewing the arguments put forth in [Lugo’s] Reply and after
considering all the pleadings and applicable law,” the district court concluded that
it had “no alternative but to find the petition time barred.” As the district court
correctly noted, “[t]he statutory tolling provision does not encompass a period of
time in which a state prisoner does not have a ‘properly filed’ post-conviction
application actually pending in state court.” Moore v. Crosby, 321 F.3d 1377,
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1381 (11th Cir. 2003). Lugo’s Rule 3.851 motion was not “actually pending” in
state court until October 18, 2004 — twelve days after the one-year limitations
period expired. The filing of Lugo’s Rule 3.851 motion did not operate to toll the
limitations period under § 2244(d)(2) because no period remained to be tolled. See
Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir. 2001).
Nor was Lugo entitled to equitable tolling. When the district court initially
dismissed the federal habeas petition as time-barred on July 13, 2011, it expressly
considered Lugo’s counseled reply to the State’s arguments that the petition was
untimely. The court explained why Lugo had not shown the existence of
extraordinary circumstances that prevented him from timely filing his § 2254
petition:
Mr. Lugo does not show a causal connection between the
alleged extraordinary circumstances and the late filing of the petition.
Indeed, the closest he ever comes to even making this argument is
when he argues that “equitable intervention is warranted as a result of
the professional negligence and egregious conduct of Court-
Appointed Registry Counsel, Roy D. Wasson, with regard to his
failure to raise an agreed upon good cause of United States and State
of Florida collusion so as to alerted [sic] the Court that the misconduct
of the Government and State Attorneys hindered his ability to timely
recognize and raise all viable and fundamental errors in his Original
Motion for Post-Conviction Relief under Florida Rule of Criminal
Procedure 3.851 before the expiration of the one year time limit.”
([D.E. 59] at 16).
Mr. Lugo has not shown how “some extraordinary
circumstance stood in his way and prevented timely filing.” Holland,
130 S. Ct. at 2562 (internal quotation marks omitted). Most
importantly, Mr. Lugo has not begun to explain how the “Federalized
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Anarchy” or his counsel’s failure to raise “an agreed upon good
cause” ultimately caused the late filing of his federal habeas petition.
Mr. Lugo also fails to explain why he did not have ample time to
perfect the filing of his state post-conviction motion, leaving himself
no time to ultimately file his federal petition[,] [n]or has he given any
coherent explanation for his delay in filing in state court. Based on
his assertions, it would appear that Mr. Lugo’s argument should have
been made as one of an impediment by State action pursuant to 28
U.S.C. §2244(d)(1)(B). However, the Court finds that any claim of
State impediment is similarly vacant.
....
. . . Assuming that the Court found that such an impediment existed,
Mr. Lugo has offered no cogent explanation as to how the
“Federalized Anarchy” impeded his ability to timely file his petition.
The district court also quoted Lugo’s pro se definition of “Federalized Anarchy”:
Federalized Anarchy: this refers to the United States and State
continuing anarchy of U.S.-State Collusion and its incorporation of
Brady Evidence of June 22, 1995 from state criminal trial and into and
thru actions taken by the United States and State thereafter
termination of criminal proceedings of motion for new trial on
January 11, 1999. As these actions involved federal courts of 99-
0418, 99-2419, and 99-1638, it federalized the collective anarchy of
U.S.-State Collusion; . . .
We agree with the district court’s assessment that this definition “does not assist
the Court in understanding why Lugo failed to timely file his federal petition, nor
does it explain why Lugo would be entitled to equitable tolling.”
The district court correctly concluded that Lugo failed to establish “that
some extraordinary circumstance stood in his way and prevented timely filing.”
Holland, 560 U.S. at 649, 130 S. Ct. at 2562 (quotation marks omitted). It is well
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settled that “[t]he burden of proving circumstances that justify the application of
the equitable tolling doctrine rests squarely on the petitioner.” San Martin, 633
F.3d at 1268. A petitioner “must plead or proffer enough facts that, if true, would
justify an evidentiary hearing on the issue.” Hutchinson v. Florida, 677 F.3d 1097,
1099 (11th Cir. 2012). “And the allegations supporting equitable tolling must be
specific and not conclusory.” Id. In light of the petitioner’s burden, district courts
are not “required to mine the record, prospecting for facts that the habeas petitioner
overlooked and could have, but did not, bring to the surface.” Chavez, 647 F.3d at
1061. That is especially true in a case, like this one, with a massive record.
Nearly all of Lugo’s allegations and arguments in the district court that
extraordinary circumstances existed were conclusory, tangential, irrelevant, or
some combination of the three. It is not enough for a habeas petitioner, who had
the benefit of appointed counsel in federal court, to allege in general and
conclusory terms that the appointed lawyers who represented him in earlier
proceedings acted negligently or engaged in misconduct. And vague allegations
about the existence of impediments, without more, or an argument that fails to
explain how such impediments prevented the timely filing of the petition, does not
establish extraordinary circumstances. Nor are they sufficient to warrant an
evidentiary hearing. Id. at 1060. On this record, we cannot say the district court
erred in concluding that Lugo failed to establish extraordinary circumstances
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sufficient to support equitable tolling, or that the court abused its discretion in not
granting him an evidentiary hearing.
Even if we concluded that Lugo had shown extraordinary circumstances that
prevented him from filing his petition on time, we must defer to the district court’s
finding of fact that Lugo did not act with due diligence in pursuing his rights,
unless it is clearly erroneous. See San Martin, 633 F.3d at 1265. The district court
found that Lugo had failed to articulate how he acted with diligence, and instead
had simply cited to “several of the documents attached in the Appendix. (See
Appendix C-R, dd-kk).” After reviewing the appendix items cited by Lugo, the
court “found that all of the documents purporting to show diligence that could
entitle Mr. Lugo to equitable tolling of the statute of limitations were filed well
after the statute of limitations had already expired and were not documents
regarding a federal habeas petition or the filing thereof.”
We have independently reviewed the documents Lugo cited to the district
court. With the exception of an email dated October 31, 1996 (which does not
remotely have anything to do with Lugo’s diligence or lack of it), all of the
documents he cited appear to involve matters from various state and federal court
proceedings that were filed after the one-year limitations period expired on
October 6, 2004. They are not probative of Lugo’s diligence during the relevant
time period before the limitations period expired. Thus, we cannot say the district
20
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court’s finding with respect to diligence “lacks substantial evidence to support
[it].” Id. (quotation marks omitted). It is not clearly erroneous.10
B. Denial of the Rule 60(b) Motion
Rule 60(b)(6), the catchall provision of Rule 60(b), authorizes relief for “any
other reason that justifies relief” from the operation of a judgment. Fed. R. Civ. P.
60(b)(6). In Gonzalez v. Crosby, the Supreme Court recognized that “Rule 60(b)
has an unquestionably valid role to play in habeas cases.” 545 U.S. 524, 534, 125
S.Ct. 2641, 2649 (2005). Where a Rule 60(b) motion challenges only a district
court’s prior ruling that a habeas petition was time-barred, it “is not the equivalent
of a successive habeas petition.” Id. at 535–36, 125 S.Ct. at 2650. However, “a
movant seeking relief under Rule 60(b)(6) [must] show extraordinary
circumstances justifying the reopening of a final judgment.” Id. at 535, 125 S.Ct.
at 2649 (quotation marks omitted); see also Cano, 435 F.3d at 1342. And “[s]uch
circumstances will rarely occur in the habeas context.” Gonzalez, 545 U.S. at 535,
125 S.Ct. at 2649. Even where the Rule 60(b) motion demonstrates sufficiently
extraordinary circumstances, “whether to grant the requested relief is . . . a matter
10
In Cadet v. Florida Department of Corrections, 742 F.3d 473, 481 (11th Cir. 2014),
which was decided during the pendency of this appeal, we held that the proper standard for
gauging whether attorney misconduct qualifies as an extraordinary circumstance for equitable
tolling purposes is whether it amounts to abandonment of the attorney-client relationship, not
whether it is negligence or even gross negligence. Because Lugo has failed to demonstrate due
diligence in pursuing his rights or a causal connection between counsel’s alleged misconduct and
the untimely filing of his § 2254 petition, we need not address Cadet’s application to this case or
decide whether counsel’s alleged errors rose to the level of abandonment.
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for the district court’s sound discretion.” Toole v. Baxter Healthcare Corp., 235
F.3d 1307, 1317 (11th Cir. 2000) (quotation marks and alteration omitted).
As a threshold matter, the district court indicated that to satisfy Rule 60(b)’s
extraordinary circumstances requirement, Lugo would have to satisfy the criteria
for granting a Rule 60(b) motion and demonstrate that he is entitled to equitable
tolling under Holland. 11 In doing so, the court took into consideration specific
facts and legal arguments based on those facts put forward by do Campo, the
attorney who had been appointed to represent Lugo after the district court
dismissed the habeas petition. Some of those facts were already in the voluminous
record before the district court at the time it dismissed the federal petition. Others
were not. For example, there was certain correspondence between Lugo and
Wasson before and after the expiration of Lugo’s statute of limitations on October
6, 2013, that had not been before the court when it dismissed the petition.
Lugo’s Rule 60(b) motion and supporting documentation led the district
court to find that Wasson’s conduct was “nothing short of egregious,” “beyond the
11
For the purposes of this appeal, we assume, without deciding, that Lugo’s Rule 60(b)
motion was a true 60(b) motion within the meaning of Gonzalez — that is to say, it attacked “not
the substance of the federal court’s resolution of a claim on the merits, but some defect in the
integrity of the federal habeas proceedings.” 545 U.S. at 532 & n.4, 125 S.Ct. at 2648 & n.4
(explaining that a habeas petitioner who “asserts that a previous ruling which precluded a merits
determination was in error — for example, a denial for such reasons as . . . [a] statute-of-
limitations bar” is not “making a habeas claim”). But see id. at 532 n.5, 125 S.Ct. at 2648 n.5
(“We note that an attack based on the movant’s own conduct, or his habeas counsel’s omissions,
ordinarily does not go to the integrity of the proceedings, but in effect asks for a second chance
to have the merits determined favorably.”) (internal citation omitted).
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pale,” “exceptional,” “extraordinary,” and “serious and disturbing.” The court
summarized Wasson’s conduct, as alleged by Lugo, as follows:
It appears that while Mr. Wasson was representing Mr. Lugo,
pursuant to a court-appointment, Mr. Wasson also prepared and
executed a Trust Agreement wherein Mr. Lugo would deposit $1.5
million into an interest bearing account for the benefit of his children.
Mr. Wasson was designated as the trustee. For his services as trustee,
Mr. Wasson was to be paid a $100,000 administration fee and he was
to be reimbursed for “reasonable out-of-pocket expenses incurred in
carrying out the purposes of this Trust.” Further, also during his court
appointment, Mr. Wasson drafted and executed a Conditional Retainer
Agreement with Mr. Lugo. Under the terms of the Agreement, Mr.
Wasson acknowledged that he was “legally and ethically prohibited
from seeking or accepting additional compensation for services
performed in that 3.851 proceeding” but that Mr. Lugo “wishes to
retain the Attorney now to represent him in the future in other
matters.” For Mr. Wasson’s future services, he was to be
compensated by either: 1) a lump sum payment in the amount of
$500,000 or 2) by an interest-free signature loan in the principal
amount of $1 million to a corporate entity designated by the Attorney.
Over the years that follow, it becomes obvious that Mr. Lugo
may not have made good on his promises to Mr. Wasson. Mr.
Wasson’s subsequent letters remind Mr. Lugo that he remains able to
reliably perform trustee duties and inquires where things stand
“regarding helping [Lugo’s] children.” Despite non-compliance with
the Trust Agreement and Conditional Retainer Agreement, Mr.
Wasson, still court-appointed counsel, approached Mr. Lugo with
certain new “investment opportunities.” In particular, Mr. Wasson
suggested that Mr. Lugo should invest $100,000 in a company owned
and operated by Mr. Wasson. Mr. Wasson provided Mr. Lugo with
the Articles of Incorporation and instructed him that payment should
not be delayed by such minor issues like the proper payee because Mr.
Lugo could just send the check made to Mr. Wasson’s trust account at
Wasson & Associates.
By September 7, 2006, the relationship seems to have soured.
On that day, Mr. Wasson wrote Mr. Lugo a letter advising him that “I
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could begin to prepare now for the briefing and argument of these
issues which require a new case filing at the federal level.
Unfortunately, given my work load in other matters (including matters
pertaining to the well being of your children), I am unable to spend all
the time I would like to on your case because of lack of compensation
provided to me for such services.”
Doc. 101 at 8–10 (internal citations omitted). Despite finding that Wasson’s
conduct was “certainly exceptional,” “extraordinary,” and “beyond the pale,” the
district court concluded that “it did not change the result here” because all of that
conduct “occurred during the time period in which the AEDPA statute of
limitations was already tolled,” between October 6, 2004, and February 10, 2010.
In reaching its conclusion on equitable tolling, the district court considered
three distinct periods of legal representation of Lugo: (1) October 6, 2003, to
January 15, 2004 (representation by CCRC-Middle Region); 12 (2) January 16,
2004, to October 18, 2004 (representation by Wasson pre-Rule 3.851 filing); and
(3) February 10, 2009, to January 5, 2010 (representation by Wasson after issuance
of the Florida Supreme Court’s mandate). The only period for which the court
12
We note that the district court’s order indicated that Lugo was represented by CCRC-
Southern Region on October 6, 2003, and that CCRC-Middle Region was appointed to represent
Lugo after CCRC-Southern Region moved to withdraw because of a conflict. While it is true
that CCRC-Middle Region was appointed to represent Lugo after CCRC-Southern Region
withdrew, our review of the record indicates that CCRC-Middle Region filed its notice of
appearance in state court on June 9, 2003. In other words, CCRC-Middle Region represented
Lugo on October 6, 2003, not CCRC-Southern Region. In any event, this discrepancy is not
material and does not otherwise undermine the district court’s finding that “Mr. Lugo has not
established diligence or an extraordinary circumstance during his representation by CCRC.”
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found Lugo had demonstrated both extraordinary circumstances and diligence was
October 6 to 18, 2004.
The district court justified equitable tolling during that twelve-day period on
two facts: (1) Lugo had written Wasson several times about his AEDPA one-year
deadline expiring on October 6, 2004, asking him to file his Rule 3.851 motion no
later than that date; and (2) on October 6, 2004, Wasson filed a motion for
clarification of hurricane tolling orders and a motion for a ten-day enlargement of
the time to file Lugo’s Rule 3.851 motion, which was granted by the Florida
Supreme Court. While the district court acknowledged that normally requests for
extensions in state court, and even state court orders granting them, do not toll
AEDPA’s statutory limitations period, see Howell v. Crosby, 415 F.3d 1250, 1251
(11th Cir. 2005), it concluded some equitable tolling was warranted in light of
Lugo’s “multiple written requests for his Rule 3.851 motion to be filed on October
6, 2004, in combination with the hurricanes in South Florida in 2004.”
As to all other relevant time periods, the district court found that Lugo had
failed to demonstrate that extraordinary circumstances prevented him from timely
filing his federal petition or that he had diligently pursued his rights. Based upon
our review of all the facts and circumstances that were brought to the district
court’s attention in the Rule 60(b) proceeding, we affirm these district court
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findings because we cannot fairly say “the record lacks substantial evidence to
support them.” San Martin, 633 F.3d at 1265 (quotation marks omitted).
Beyond that, we stress that we review the district court’s decision denying a
Rule 60(b) only for an abuse of discretion. “It is not an abuse of discretion for the
district court to deny a motion under Rule 60(b) when that motion is premised
upon an argument that the movant could have, but did not, advance before the
district court entered judgment.” Maradiaga v. United States, 679 F.3d 1286, 1294
(11th Cir. 2012).
Our decision that Lugo is not entitled to equitable tolling of AEDPA’s one-
year statutory deadline for seeking federal habeas relief disposes of this appeal.
We write more here in response to our colleague’s concurring opinion regarding
the problem in Florida of state death-row inmates missing the AEDPA filing
deadline despite the provision of state collateral counsel in every case. As the data
our colleague has assembled shows, at least 34 death-row inmates in Florida, of
which there are currently 397, have failed to meet the federal filing deadline in the
eighteen years since AEDPA became effective in 1996. We agree with her that
this number, which accounts for roughly 8% of Florida’s current death-row
population, is cause for concern about the quality of capital collateral
representation in some Florida cases. The problem, for reasons largely unknown,
appears to be of relatively recent vintage. As the appendix to the concurring
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opinion shows, the earliest decision finding a missed statute-of-limitations deadline
in a Florida capital case is 2004, which is eight years after AEDPA’s enactment.13
An even more striking fact is that the problem largely is a Florida one. Our own
research indicates, for example, that during the eighteen-year period since
AEDPA’s enactment only one death-row inmate in Georgia has missed the statute-
of-limitations deadline. 14 Georgia currently has 85 death-row inmates, so that is
roughly 1%. 15
We also agree with the concurring opinion that indigent state capital inmates
are entitled to the appointment of federally funded counsel to assist them in the
preparation and filing of a § 2254 federal habeas petition, perhaps even before they
have sought state collateral relief. See 18 U.S.C. § 3599(a)(2); McFarland v. Scott,
512 U.S. 849, 855–56, 114 S.Ct. 2568, 2572 (1994) (holding that the right to
13
In Wilcox v. Florida Department of Corrections, 158 F.3d 1209, 1211 (11th Cir. 1998),
we held that for all of those prisoners who had completed the direct appeal process before
AEDPA, the one-year limitations period began running on the statute’s effective date, which was
April 24, 1996.
14
This number was derived from a Westlaw search for Georgia capital cases since
AEDPA’s 1996 enactment where a § 2254 petition was deemed untimely. Although the cases in
Westlaw may not reflect all of the death-row inmates who have missed AEDPA’s one-year
deadline, there is no reason to believe that there are any more overlooked cases in Georgia than
in Florida.
15
We realize, of course, that the inmates on any given death row are at various stages of
the long appeal and postconviction processes. As a result, taking the number of death-row
inmates in a state who have missed the filing deadline over the years and dividing that number
by the current population on death row in that state does not yield the actual percentage of cases
that reach the federal habeas stage in which the filing deadline has been missed. It is only a way
of compensating for the fact that the number of inmates on Florida’s death row is about four
times the number of Georgia’s.
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appointed counsel in federal habeas proceedings “adheres prior to the filing of a
formal, legally sufficient habeas corpus petition” because it “includes a right to
legal assistance in the preparation of a habeas corpus application”). We
emphasize, however, that a state prisoner is not entitled, as a matter of statutory
right, to have federally paid counsel assist him in the pursuit and exhaustion of his
state postconviction remedies, including the filings of motions for state collateral
relief that would toll the one-year federal filing period. See Harbison v. Bell, 556
U.S. 180, 189, 129 S.Ct. 1481, 1488 (2009) (emphasizing that § 3599 does not
“require federally funded counsel to represent her client in any state habeas
proceeding occurring after her appointment”); Gary v. Warden, Ga. Diagnostic
Prison, 686 F.3d 1261, 1274 (11th Cir. 2012) (“[A]n indigent prisoner . . . may
receive § 3599 funding only for those proceedings that ordinarily occur subsequent
to [the filing of a § 2254 petition].”); King v. Moore, 312 F.3d 1365, 1368 (11th
Cir. 2002) (holding, post-McFarland, that a state prisoner is not entitled to
federally paid counsel for the purpose of pursuing state postconviction remedies);
In re Lindsey, 875 F.2d 1502, 1506 (11th Cir. 1989) (holding, pre-McFarland, that
the right to federally appointed counsel does not encompass “any proceedings
convened under the authority of a State”).
And while a district court is not wholly bereft of discretion in this area, we
believe that it would be an abuse of that discretion for a district court to appoint
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federal habeas counsel to assist a state prisoner in exhausting his state
postconviction remedies before a formal § 2254 petition has been filed and, even
then, only where the petitioner is unable to obtain adequate legal representation in
state court. See Harbison, 556 U.S. at 189–90 & n.7, 129 S.Ct. at 1488–89 & n.7
(explaining that “a district court may determine on a case-by-case basis that it is
appropriate for federal counsel to exhaust a claim in the course of her federal
habeas representation,” yet emphasizing that § 3599 “provides for counsel only
when a state petitioner is unable to obtain adequate representation,” meaning that
the provision of “state-furnished representation renders him ineligible for § 3599
counsel until the commencement of [] § 2254 proceedings”) (emphasis added);
Gore v. Crews, 720 F.3d 811, 814 n.1 (11th Cir. 2013) (stating in dicta that if a
petitioner’s “state court counsel is not providing representation adequate to exhaust
his state court remedies, . . . a district court could determine, in its discretion, that it
is necessary for court-appointed counsel to exhaust a claim in state court in the
course of her federal habeas representation . . . .”) (quotation marks omitted); see
also Irick v. Bell, 636 F.3d 289, 292 (6th Cir. 2011) (“[E]ven if § 3599 would
otherwise apply to Irick’s state post-conviction proceedings, he would not be
eligible for federal funding because state law affords him ‘adequate
representation.’”) (quoting Harbison, 556 U.S. at 189, 129 S.Ct. at 1488).
29
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This all makes good sense. To mandate the provision of federally funded
counsel to assist a state prisoner in his pursuit of state postconviction remedies not
only “would increase the cost of implementing [§ 3599] enormously,” Sterling v.
Scott, 57 F.3d 451, 457 (5th Cir. 1995), but also “would have the practical effect of
supplanting state-court systems for the appointment of counsel in collateral review
cases,” In re Lindsey, 875 F.2d at 1506. It is unlikely that Congress intended either
of these results when it authorized the appointment of federal counsel to aid state
capital prisoners in seeking federal habeas relief in federal court. See King, 312
F.3d at 1368 (noting that it is “unlikely” that Congress intended “to provide
counsel, at federal expense, to state prisoners engaged in state proceedings”).
We are also skeptical that filings of anticipatory, shell, or placeholder § 2254
petitions while state prisoners exhaust their state collateral remedies will
significantly mitigate the problem of missed AEDPA deadlines among Florida
inmates. District courts are not required to accept such filings and stay the federal
habeas proceedings, possibly for years, while a state prisoner completes his state
collateral proceedings. To the contrary, the Supreme Court has held that, except in
limited circumstances, district courts must dismiss § 2254 petitions without
prejudice until the petitioner has fully exhausted his state postconviction remedies
with respect to each of his asserted claims for relief. See Rose v. Lundy, 455 U.S.
509, 519–20, 102 S.Ct. 1198, 1204 (1983) (holding that district courts ordinarily
30
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must dismiss a § 2254 petition without prejudice if the petitioner has not exhausted
his state postconviction remedies); Rhine v. Weber, 544 U.S. 269, 275–79, 125
S.Ct. 1528, 1534–36 (2005) (holding that district courts may employ a “stay-and-
abeyance” procedure in “limited circumstances” where there is good cause for the
petitioner’s failure to first exhaust all of his claims in state court, the unexhausted
claims are not plainly meritless, and there is no indication that the petitioner
engaged in deliberately dilatory tactics).
Perhaps a better method for combating the problem of missed AEDPA
deadlines among Florida death-row inmates is to establish a capital habeas unit
(CHU) in one or more of Florida’s three federal districts, which could track capital
cases in that state to ensure that the claims of death-row inmates are timely
presented in both state and federal court. Currently, seventeen federal defender
organizations across the country, operating in twelve states, have CHUs focused
exclusively on capital habeas litigation in their respective jurisdictions and staffed
by knowledgeable people trained in the complexities of such litigation. There are
two CHUs now operating in this Circuit — one in the Middle District of Alabama,
which helps to provide capital habeas representation in all three of Alabama’s
federal districts, and one in the Northern District of Georgia, which helps handle
the capital case federal habeas litigation in that district. Although causation can be
tricky phenomenon to pinpoint, we believe that it is no coincidence that the
31
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number of untimely § 2254 petitions in Georgia, which has had a CHU since
AEDPA’s statute of limitations was enacted in 1996, is dramatically lower than it
is Florida, which has never had a CHU in any of its three federal districts. Among
other things, the CHU in the Northern District of Georgia, working in conjunction
with the Georgia Resource Center and others, tracks capital cases in that state and
helps ensure that there are no missed filing deadlines.
The same could be done in Florida. Establishing a CHU in one of that
state’s three federal districts would have several benefits. Not only could it
provide direct representation to capital inmates in some federal habeas
proceedings, thus minimizing the need for court-appointed counsel, but it could
also provide critical assistance and training to private registry counsel who handle
state capital cases in Florida’s collateral proceedings. A CHU could also monitor
and track capital cases in Florida to help prevent AEDPA’s one-year limitations
period from lapsing before a formal federal habeas petition has been filed. This
Court is currently considering the administrative question of whether to authorize
the creation of a CHU in the Northern District of Florida, like the one in the State
of Georgia that has operated so effectively in tracking capital cases in that state to
ensure that the claims of death-row inmates are timely presented and not barred by
the federal statute of limitations.
32
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IV. CONCLUSION
For the reasons outlined in this opinion, we conclude the district court
properly dismissed Lugo’s federal habeas corpus petition as time-barred, even
without holding an evidentiary hearing. We also conclude the district court did not
abuse its discretion when it denied Lugo’s Rule 60(b) motion. We therefore affirm
each of the district court’s judgments in this consolidated appeal.
AFFIRMED.
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MARTIN, Circuit Judge, concurring in judgment:
I agree with the Majority’s holdings that: (1) Mr. Lugo failed to demonstrate
that he is entitled to equitable tolling under Holland v. Florida, 560 U.S. 631, 130
S. Ct. 2549 (2010); and (2) the District Court did not abuse its discretion when it
denied Mr. Lugo’s Rule 60(b) motion. I write separately, however, because Mr.
Lugo’s case highlights a problem that we have seen before in our Court. The
problem is the failure of state court-appointed collateral counsel to timely file a
defendant’s first federal habeas petition, with the result that federal courts are
being barred from reviewing the merits of the claims of death row inmates. As I
have looked into this problem, I have been struck by how widespread it is, so I
devote some of my discussion to examining the scope of the problem. I also hope
to contribute to the Majority’s discussion about the rights of state capital habeas
petitioners under federal law and the systems that are available to improve the
ability of state capital habeas petitioners to get federal review of their cases. 1
1
To begin, I recognize that what I say here is not necessary to decide the equitable tolling issues
presented by Mr. Lugo’s case. The same is true of the opinions expressed by the Majority
beyond its analysis of the statute of limitations and equitable tolling issues. See, e.g., Maj. Op. at
28 (“Our decision that Lugo is not entitled to equitable tolling of AEDPA’s one-year statutory
deadline for seeking federal habeas relief disposes of this appeal.”); see also United States v.
Kaley, 579 F.3d 1246, 1253 n.10 (11th Cir. 2009) (explaining that dicta includes “those portions
of an opinion that are not necessary to deciding the case then before us,” while the holding of a
case is “comprised both of the result of the case and those portions of the opinion necessary to
that result” (quotation marks omitted)).
Case: 11-13439 Date Filed: 04/24/2014 Page: 35 of 53
I.
Mr. Lugo is only one of a number of death row prisoners in Florida who
have failed to file their federal habeas petitions within the one-year statute of
limitations for state prisoners. See 28 U.S.C. § 2244(d)(1). There are currently
397 men and women on Florida’s death row. See Death Row Roster, Fla. Dep’t of
Corr., http://www.dc.state.fl.us/activeinmates/deathrowroster.asp (last visited Apr.
23, 2014). By my count, at least thirty-four of those inmates have missed their
one-year filing deadline since AEDPA’s effective date.2 Two of these thirty-four
were recently executed: Juan Chavez on February 12, 2014, and Paul Howell on
February 26, 2014. In addition to the significant percentage of capital defendants
affected,3 this problem seems worthy of mention for several reasons.
2
The appendix attached to the end of my concurrence identifies, as best I can tell, the Florida
capital prisoners who have missed AEDPA’s one-year deadline. While the large majority of
these petitioners will likely never have the merits of their habeas claims reviewed in federal court
because of the statute of limitations bar, we also know that a few have received alternative merits
rulings, and a few have also successfully argued they are entitled to equitable tolling. For
example, upon remand from the Supreme Court, the petitioner in Holland demonstrated he was
entitled to equitable tolling. Holland v. Florida, No. 1:06-cv-20182 (S.D. Fla. Nov. 23, 2010),
ECF No. 112 at 6. Once Mr. Holland’s habeas claims were reviewed on the merits, the District
Court granted him a new trial based on his Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525(1975), claim. Holland v. Tucker, 854 F. Supp. 2d 1229, 1240–72, 1300 (S.D. Fla. 2012) (order
granting in part petition for habeas corpus). Of course, I express no opinion about the equitable
tolling issues that may or may not exist in any case other than those we consider here in Mr.
Lugo’s case. I also acknowledge that, despite my best research efforts, my identification of
thirty-four capital prisoners may underrepresent the actual number who face AEDPA statute of
limitation problems. For example, I did not research now pending state postconviction cases.
3
The Majority opinion says “roughly 8%” of the current death row population failed to meet
AEDPA’s one-year filing deadline. See Maj. Op. at 28. This 8% figure is derived by dividing
35
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First, the Supreme Court has told us that the “[d]ismissal of a first federal
habeas petition is a particularly serious matter, for that dismissal denies the
petitioner the protections of the Great Writ entirely, risking injury to an important
interest in human liberty.” Lonchar v. Thomas, 517 U.S. 314, 324, 116 S. Ct.
1293, 1299 (1996). This is still true after AEDPA. Although “state courts are the
principal forum for asserting constitutional challenges to state convictions,”
the number of inmates in the appendix (34) by the total number of prisoners currently on death
row (397). See Death Row Roster, Fla. Dep’t of Corr., http://www.dc.state.fl.us/activeinmates/
deathrowroster.asp (last visited Apr. 23, 2014). I agree that 8% is more than enough to give
“cause for concern about the quality of capital collateral representation in some Florida cases.”
See Maj. Op. at 28. However, the 8% number minimizes the scope of the problem for several
reasons. First, for the reason I noted, my identification of thirty-four inmates is probably a low
number. Second, taking the percentage of the 34 against all 397 inmates currently on death row
is problematic. As the Majority forthrightly acknowledges, “the inmates on any given death row
are at various stages of” litigation. Maj. Op. at 29 n.15. My information is that dozens of
inmates on Florida’s death row were sentenced only in the last two or three years, so their cases
are not yet final on direct review. See Death Row Roster. Since those inmates’ one-year
deadline has not yet started to run, they should not be included in the estimate of Florida death
row inmates with federal statute of limitation problems. A fairer percentage would include only
those capital inmates who did file a first § 2254 habeas petition since AEDPA became law, as
well as those who could have filed a federal petition but did not. While I do not know what that
precise number is, it is probably significantly less than the total number of inmates currently on
Florida’s death row. For example, the number would be closer to 12%, assuming 273 first
§ 2254 capital petitions were filed since AEDPA and 34 inmates untimely filed petitions.
Also, I would characterize the problem slightly differently than the Majority to the extent
that it identifies this issue as unique to Florida. See Maj. Op. at 28. Certainly Florida is an
outlier in missed one-year deadlines by capital defendants in states within the Eleventh Circuit.
Florida may well be a stand out even among all states with the death penalty. But it is also true
that several Alabama death row inmates have filed untimely habeas petitions. See, e.g., Melson
v. Comm’r, Ala. Dep’t of Corr., 713 F.3d 1086 (11th Cir. 2013), cert. denied sub nom. Melson v.
Thomas, ___ U.S. ___, 134 S. Ct. 905 (2014); Smith v. Comm’r, Ala. Dep’t of Corr., 703 F.3d
1266 (11th Cir. 2012), cert. denied sub nom. Smith v. Thomas, ___ U.S. ___, 134 S. Ct. 513(2013); Myers v. Allen, 420 F. App’x 924 (11th Cir. 2011); Arthur v. Allen, 452 F.3d 1234 (11th
Cir. 2006); Sibley v. Culliver, 377 F.3d 1196 (11th Cir. 2004). I understand Alabama to
currently have 197 inmates on death row. See Alabama Inmates Currently on Death Row, Ala.
Dep’t of Corr., http://www.doc.alabama.gov/DeathRow.aspx (last visited Apr. 23, 2014).
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Harrington v. Richter, ___ U.S. ___, ___, 131 S. Ct. 770, 787 (2011), the Supreme
Court recently reaffirmed the “importance of federal habeas corpus proceedings as
a method for preventing individuals from being held in custody in violation of
federal law,” Trevino v. Thaler, ___ U.S. ___, ___, 133 S. Ct. 1911, 1916–17
(2013) (citing Martinez v. Ryan, ___ U.S. ___, ___, 132 S. Ct. 1309, 1315–16
(2012)). Thus, state prisoners on death row have a right to federal habeas review,
and this right should not depend upon whether their court-appointed counsel is
competent enough to comply with AEDPA’s statute of limitations. See generally
Hutchinson v. Florida, 677 F.3d 1097, 1103–11 (11th Cir. 2012) (Barkett, J.,
concurring in result).
Second, without federal review under AEDPA, we can offer no “guard
against extreme malfunctions in the state criminal justice systems.” See
Harrington, 131 S. Ct. at 786 (quotation marks omitted). I would not expect
“extreme malfunctions” in state criminal justice systems to happen very often, but
they do happen. Both the United States Supreme Court and this Court have found
reason to grant habeas relief to Florida capital habeas petitioners under AEDPA.
See, e.g., Porter v. McCollum, 558 U.S. 30, 130 S. Ct. 447 (2009); Farina v. Sec’y,
Fla. Dep’t. of Corr., 536 F. App’x 966 (11th Cir. 2013); Cooper v. Sec’y, Dep’t of
Corr., 646 F.3d 1328 (11th Cir. 2011); Guzman v. Sec’y, Dep’t of Corr., 663 F.3d
1336 (11th Cir. 2011); Johnson v. Sec’y, DOC, 643 F.3d 907 (11th Cir. 2011). If
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any of these habeas petitioners had missed their AEDPA limitations deadline, they
likely would have been put to death without ever having received a look by the
federal courts into the merits of their claims. It is hard to see how they would have
gotten the relief they did.
Third, it is simply arbitrary for our collateral review process to allow some
capital defendants to get federal habeas review (because their court-appointed
attorneys appreciate the significance of AEDPA’s statute of limitations), while
others do not. Cf. Furman v. Georgia, 408 U.S. 238, 294–95, 92 S. Ct. 2726,
2754–55 (1972) (Brennan, J., concurring). As the thirty-four prisoners identified
in the appendix demonstrate, whether a Florida death row inmate gets federal
habeas review may be decided without regard to the facts of their crime or the
character of the defendant.
Sadly, Mr. Lugo’s case illustrates how a prisoner’s statute of limitations for
filing a federal habeas petition can expire even before his counsel filed his state
postconviction motion. Mr. Lugo had until October 6, 2004, to file his federal
petition for writ of habeas corpus or properly file an application for postconviction
relief or other collateral review in state court to toll the time for filing his federal
petition. See 28 U.S.C. § 2244(d)(1)(A), (d)(2). But neither he nor his state court-
appointed counsel filed either. By the time Mr. Lugo’s attorney filed his state
habeas petition on October 18, 2004, the federal statute of limitations had already
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lapsed by 12 days. See Maj. Op. at 5–6, 18. Therefore, even if Mr. Lugo had filed
a federal habeas petition on the day that his state collateral proceedings ended, it
would have already been too late. See Tinker v. Moore, 255 F.3d 1331, 1333 (11th
Cir. 2001).
II.
This alarming number of cases in which state-appointed attorneys have
allowed their clients’ federal statutes of limitations to expire naturally causes us
who see these cases to question how prisoners can preserve their right to federal
habeas review. Certainly one of the things that prisoners can do is to seek
appointed counsel in federal court close in time to when their cases become final
on direct review. The Supreme Court has held that under 18 U.S.C. § 3599(a)(2),
state “[h]abeas petitioners facing execution now receive counsel as a matter of
[statutory] right, not an exercise of the court’s discretion.” Martel v. Clair, ___
U.S. ___, ___, 132 S. Ct. 1276, 1285 (2012); see also 18 U.S.C. § 3599(a)(2).
Beyond that, the Supreme Court has held that an indigent capital habeas
petitioner’s statutory “right to appointed counsel includes a right to legal assistance
in the preparation of a habeas corpus application.” McFarland v. Scott, 512 U.S.
849, 856, 114 S. Ct. 2568, 2572 (1994). “An attorney’s assistance prior to the
filing of a capital defendant’s habeas corpus petition is crucial, because the
complexity of our jurisprudence in this area . . . makes it unlikely that capital
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defendants will be able to file successful petitions for collateral relief without the
assistance of persons learned in the law.” Id. at 855–56, 114 S. Ct. at 2572(quotation marks omitted). Thus, federal courts have the authority to appoint
counsel under § 3599 before a federal petition is filed and, in fact, even before a
state petition is filed.
Applying this law to the facts of Mr. Lugo’s case, Mr. Lugo or his state
court-appointed counsel could have filed a request for counsel in federal court as
soon as his case became final on direct review. Alternatively, Mr. Lugo could
have filed a pro se request for the appointment of federal counsel once he had
cause to believe his state court-appointed counsel was not going to timely file his
federal petition. Had he done either of those things, I understand the District Court
would have been obligated to appoint counsel for him, provided he otherwise met
the financial eligibility requirements. See id. Also, Mr. Lugo’s request would
have had the benefit of initiating his federal habeas corpus proceedings, see id. at
856–57, 114 S. Ct. at 2572–73, thereby entitling him “to a variety of expert and
investigative services upon a showing of necessity,” id. at 855, 114 S. Ct. at 2572.
See also 18 U.S.C. § 3599(f) (authorizing “investigative, expert, or other services
[where] reasonably necessary for the representation of the defendant”).
With the early appointment of federal habeas counsel, Mr. Lugo would have
gained these benefits regardless of whether he was represented by state post-
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conviction counsel and regardless of whether he had filed a state postconviction
petition. I am not aware of any law or precedent which would require Mr. Lugo to
wait until the conclusion of his state habeas proceeding before seeking counsel for
his federal habeas proceedings. Certainly, it cannot be the case that Mr. Lugo was
required to wait until his limitations period expired before he could request and be
afforded competent and qualified federal habeas counsel to help him prepare and
file his federal petition. Otherwise the statutory right to the assistance of counsel
under § 3599 and McFarland would be meaningless.
My understanding is supported by the Defender Services Committee of the
United States Judicial Conference, which has explained why appointment of
counsel at the earliest possible time is important in federal habeas proceedings:
Federal counsel need adequate time to investigate, research, and
prepare proper capital habeas corpus petitions. Prior to even
beginning work on the petition, federal counsel must collect and read
the record, establish a relationship with the client, assemble a team
that includes mitigation experts and fact investigators, and make
preliminary evaluations regarding such matters as client competency,
mental retardation, and mental health issues, as well as comply with
the ABA Guidelines for the Appointment and Performance of Defense
Counsel in Death Penalty Cases. Because extra-record claims can not
be raised as part of direct appeals, they must be fully investigated and
litigated in habeas corpus petitions.
Statutes of limitations place strict limits on the time counsel has
to file such a petition. Under the Anti-Terrorism and Effective Death
Penalty Act of 1996 (AEDPA), the statute of limitations for filing a
petition is one year. Experience has shown that one year is barely
sufficient time to file a federal capital habeas corpus petition even
when the petitioner is represented by experienced, institutionally-
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funded, full-time, federal defender staff well versed in capital habeas
litigation. In practice, waiting to appoint federal counsel until the
state post-conviction proceeding is completed results in less than one
year in which to file the federal habeas petition. The limitation period
begins to run, subject to “tolling,” from the latest of four triggering
events, including “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking
such review” (i.e., a petition for writ of certiorari in the United States
Supreme Court). 28 U.S.C. § 2244(d)(1). Although “[t]he time during
which a properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of limitation” under
the AEDPA (28 U.S.C. § 2244(d)(2)), all or any portion of the federal
statute of limitations could expire before the state post-conviction
petition is filed. State post-conviction counsel often expend nearly all
of the federal limitations period before filing a state postconviction
pleading. This is especially true in states that have longer filing
deadlines than those provided by the AEDPA.
Timely Appointment Strategy, U.S. Jud. Conf. Defender Servs. Comm., Goal 1
(Timeliness), Strategy 12 (Capital Habeas Corpus) & Goal 2 (Quality of
Representation), Strategy 18 (Capital Habeas Corpus) cmt. (emphasis added).
Thus, state court prisoners on death row can and should take advantage of their
statutory right to counsel in federal habeas proceedings at the time their case
becomes final on direct review. Doing so will protect a prisoner’s right to federal
habeas review, regardless of how long it takes for state postconviction counsel to
file a state habeas petition. See n.5, infra.
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III.
Of course, complications can arise when a prisoner petitions a federal court
to appoint counsel during the pendency of his state collateral review proceedings.
None of these complications, however, should be serious enough to dissuade a
federal court from appointing counsel to prisoners. The Majority, for example, is
concerned that federally-appointed counsel will use federal funds to litigate a
prisoner’s habeas claims in state court. I have no quarrel with that concern. In
fact, I generally agree with the Majority “that a state prisoner is not entitled, as a
matter of statutory right, to have federally paid counsel assist him in the . . .
exhaustion of his state postconviction remedies.” Maj. Op. at 29.
On the other hand, district courts plainly have discretion to authorize
federally-appointed counsel to exhaust claims on a “case-by-case” basis. Harbison
v. Bell, 556 U.S. 180, 190 n.7, 129 S. Ct. 1481, 1489 n.7 (2009) (“Pursuant to
§ 3599(e)’s provision that counsel may represent her client in ‘other appropriate
motions and procedures,’ a district court may determine on a case-by-case basis
that it is appropriate for federal counsel to exhaust a claim in the course of her
federal habeas representation.” (emphasis added)). The Judicial Conference
Committee on Defender Services has issued a memorandum to provide guidance to
courts when they are asked to appropriate federal funds for CJA attorneys or
federal defender organizations who wish to exhaust state court claims. See
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Memorandum from Judge Claire V. Eagan, Chair, Judicial Conference Comm. on
Defender Servs., to Judges, U.S. Dist. Courts, et. al. 1 (Dec. 9, 2010) (addressing
“Use of Defender Services Appropriated Funds by Federal Appointed Counsel for
State Court Appearances in Capital Habeas Cases). When a district court is
presented with such a request, the Committee recommends that the presiding judge
make a case-by-case determination, considering an extensive laundry list of things,
including the following:
• the availability of the petitioner’s original state postconviction counsel or
other qualified state counsel;
• the availability of state funds for investigative and expert services;
• the willingness of the state court to appoint and compensate the
petitioner’s federal counsel;
• the number and nature of the claims to be exhausted;
• state court rules governing the appearance of counsel;
• any unwarranted delay that would be caused by the lack of continuity
in not having federal counsel handle the exhaustion in state court;
• the need to avoid disruption of the proceedings;
• the need to avoid disruption of the attorney/client relationship;
• whether the investigation and research as to the unexhausted claim has
already been done by the federal counsel;
Id. at 3–4; see also Federal Judicial Center, Capital § 2254 Habeas Cases: A Pocket
Guide for Judges 10 (2012), available at http://www.fjc.gov/public/pdf.nsf/lookup
/cap2254hab.pdf/$file/cap2254hab.pdf. Having federal district judges consider
these factors should protect against the Majority’s concern that federal funds will
be spent on litigating a prisoner’s habeas claims in state court.
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It is not my goal to propose a solution to the problem of ensuring the timely
filing of state postconviction motions. While the problem of timely filed state
habeas petitions may be related to the problem of blown federal deadlines, the two
issues are distinct.4 And this distinct state problem should not interfere with the
separate obligation of federal courts to timely appoint federal habeas counsel upon
request. Indeed, the reality that state court-appointed counsel too often fail to
properly file a postconviction motion in state court before the state and federal
statutes of limitation expire supports the need to appoint independent federal
counsel early enough that they can investigate, prepare, and timely file a federal
habeas corpus petition. 5
4
Of course when a petitioner’s “application for State post-conviction or other collateral review”
is filed is important because it tolls the federal statute of limitations period if it is filed before the
federal limitations period expires. See 28 U.S.C. § 2244(d)(2); Tinker v. Moore, 255 F.3d 1331,
1333 (11th Cir. 2001).
5
In any event, potential federal habeas claims are not limited to issues raised in state court
postconviction proceedings. Federally-appointed counsel could, for example, timely file a
federal petition raising only claims that were raised on direct appeal and/or file a mixed petition
and request that his federal petition be held in abeyance. See Rhines v. Weber, 544 U.S. 269,
278, 125 S. Ct. 1528, 1535 (2005) (“[I]t likely would be an abuse of discretion for a district court
to deny a stay and to dismiss a mixed petition if the petitioner had good cause for his failure to
exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics. In such circumstances, the district
court should stay, rather than dismiss, the mixed petition.”); see also Hutchinson, 677 F.3d at1102 & n.7 (recognizing that a capital habeas petitioner could file a federal place-holder petition
that could be held in abeyance until efforts to obtain state collateral review were completed).
Furthermore, federal counsel appointed under § 3599 cannot simply assume that a
constitutional claim that was not exhausted in state court will be precluded from merits review in
federal court, especially without first investigating the cause for the default and whether the
petitioner was prejudiced, or whether some other possibility exists to excuse the procedural
default. See, e.g., Martinez, 132 S. Ct. at 1320 (“Where, under state law, claims of ineffective
assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural
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Finally, I enthusiastically agree with the Majority that one or more Florida
Capital Habeas Units (CHUs) would be helpful in “combating the problem of
missed AEDPA deadlines among Florida death-row inmates,” Maj. Op. at 34, at
least for those inmates who are lucky enough to be represented by CHU attorneys. 6
I emphasize, however, that creating a CHU or CHUs will not by itself ensure that
all Florida death row inmates will get highly qualified federal counsel or that
federal counsel is appointed in a timely manner or that more AEDPA deadlines
will not be missed in the future. All indigent death row inmates, whether
represented by CHU, CCRC, or Criminal Justice Act panel attorneys, are entitled
to the timely appointment or qualified counsel for the purpose of investigating,
preparing, and timely filing a federal habeas corpus petition. See 18 U.S.C. §3599.
Even after counsel is appointed in federal court, there can be circumstances in
which the “interests of justice” require district courts to replace appointed counsel,
default will not bar a federal habeas court from hearing a substantial claim of ineffective
assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel
in that proceeding was ineffective.”).
6
The American Bar Association issued a report in 2006 that gives historical context and
addresses some of the broader issues concerning the quality of state court-appointed capital
collateral counsel in Florida. See Am. Bar Ass’n, Evaluating Fairness and Accuracy in State
Death Penalty Systems: The Florida Death Penalty Assessment Report 236–37 (2006)
(discussing and criticizing the qualifications and performance of some of the registry attorneys
appointed under Florida’s system for the appointment of post-conviction counsel, including that
“registry attorneys in at least twelve separate cases filed their clients’ state post-conviction
motions or federal habeas corpus petitions between two months to three years after the applicable
filing deadline”).
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see Martel, 132 S. Ct. at 1285–86, or appoint conflict-free co-counsel to fully
develop and argue equitable tolling issues that implicate appointed counsel’s own
conduct, see id. at 1286 (“Even in the absence of [18 U.S.C 3559(e)’s substitution
of counsel] provision, a court would have to ensure that the defendant’s statutory
right to counsel was satisfied throughout the litigation; for example, the court
would have to appoint new counsel if the first lawyer developed a conflict with or
abandoned the client.”). See also Thomas v. McDonough, No. 3:03-cv-237 (M.D.
Fla. Feb. 27, 2006), ECF No. 31 at 5 (consolidated order appointing conflict-free
co-counsel in three capital § 2254 cases where state contended the federal petitions
were time barred and the District Court determined that “at least some of the
grounds upon which an equitable tolling argument might be based implicated
appointed counsel’s own conduct”).
Alas, none of these ideas about the implementation of 18 U.S.C. § 3599 are
of any help to Mr. Lugo. Given the facts of his case, we are barred from
considering the merits of his claims. Although this panel has surely exceeded the
specifics of Mr. Lugo’s case, this seemed to be a proper place to talk about the
systems in place to ensure meaningful federal habeas review for inmates sentenced
to death in this Circuit.
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APPENDIX 7
Florida capital defendants who filed § 2254 habeas petitions which were
untimely and did not qualify for equitable tolling:
1. Chadwick Banks, Jr. v. Sec’y, Fla. Dep’t of Corr., 491 F. App’x 966 (11th Cir.
2012), cert. denied sub nom. Banks v. Crews, ___ U.S. ___, 134 S. Ct. 118 (2013).
2. Michael Bell v. Fla. Att’y Gen., 461 F. App’x 843 (11th Cir. 2012) (per curiam),
petition for cert. filed, No. 13-8415 (Nov. 14, 2013).
3. Oscar Ray Bolin v. Sec’y, Fla. Dep’t of Corr., No. 8:10-cv-1571 (M.D. Fla. July 1,
2013), ECF No. 31 (order finding petition time barred and alternatively denied on
the merits), certificate of appealability denied, No. 13-13539 (11th Cir. Sept. 20,
2013), cert. denied sub nom., Bolin v. Florida, ___ U.S. ___, 134 S. Ct. 695(2013).
4. Donald Lee Bradley v. Sec’y, Fla. Dep’t of Corr., No. 3:10-cv-1078 (M.D. Fla.
Mar. 12, 2014), ECF No. 15 at 2 n.4, 55 (order finding that petition was untimely
and did not qualify for equitable tolling and denying the petition on the merits).
5. George Brown v. Sec’y, Fla. Dep’t of Corr., No. 8:06-cv-142 (M.D. Fla. Feb.13,
2006), ECF No. 5 (order to show cause why petition should not be dismissed as
time barred where AEDPA limitations period expired on March 19, 2005 and
federal habeas petition was not filed until January 25, 2006). 8
6. Harry Lee Butler v. Sec’y, Fla. Dep’t of Corr., No. 8:12-cv-02859 (M.D. Fla. Jan.
24, 2014), ECF No. 20 (order denying petition as time-barred and denying
7
Cases are listed alphabetically by the defendant’s last name and included without regard for the
merits of the underlying claims for relief. These cases are offered as representative, not
exhaustive, examples of cases in which the statutory deadline for filing a habeas petition appears
to have been missed.
8
Mr. Brown’s federal habeas case was dismissed by the District Court because Mr. Brown died
while the case was still pending and before the Court had an opportunity to finally rule on his
request for equitable tolling. See Brown, No. 8:06-cv-142 (M.D. Fla. Mar. 12, 2007), ECF No.
14 (order dismissing petition because of petitioner’s death).
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equitable tolling), certificate of appealability granted, No. 14-10797 (11th Cir. Apr.
11, 2014).
7. Juan Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057 (11th Cir. 2011), cert.
denied sub nom. Chavez v. Tucker, ___ U.S. ___, 132 S. Ct. 1018 (2012).9
8. Loran Cole v. Crosby, No. 5:05-cv-222, 2006 WL 1169536 (M.D. Fla. May 3,
2006) (order dismissing petition as time barred without discussing equitable tolling
and, alternatively, denying the petition on the merits), certificate of appealability
denied, No. 06-13090 (11th Cir. Jul. 31, 2007).
9. Floyd Damren v. Sec’y, Fla. Dep’t of Corr., No. 3:03-cv-397-J-32, 2013 WL
5353246 (M.D. Fla. Sept. 24, 2013), appeal docketed, No. 13-15017 (11th Cir.
Oct. 29, 2013).
10. James Ford v. Sec’y, Dept. of Corr., No. 2:07-cv-333, 2012 WL 113523 (M.D.
Fla. Jan. 13, 2012), certificate of appealability denied, No. 09-14820 (11th Cir.
Mar. 14, 2012).
11. Charles Foster v. Crosby, No. 5:03-cv-108 (N.D. Fla. Dec. 13, 2004), ECF No. 28,
certificate of appealability denied, No. 05-10344 (11th Cir. Sept. 30, 2005), cert.
denied sub nom. Foster v. McDonough, 549 U.S. 1251, 127 S. Ct. 1369 (2007).
12. Ricardo Gonzalez v. Sec’y, Fla. Dep’t of Corr., No. 1:08-cv-22909 (S.D. Fla. Sept.
28, 2009), ECF No. 15 (order finding petition time barred and alternatively
denying claims on the merits), aff’d on other grounds, 629 F.3d 1219 (11th Cir.
2011) (per curiam), cert. denied sub nom. Gonzalez v. Tucker, ___ U.S. ___, 132
S. Ct. 543 (2011).
13. Olen Gorby v. McNeil, 530 F.3d 1363 (11th Cir. 2008) (per curiam) (affirming
District Court’s dismissal of federal petition as time barred but not addressing
equitable tolling), cert. denied, 556 U.S. 1109, 129 S. Ct. 1592 (2009). 10
9
Mr. Chavez was executed on February 12, 2014.
10
I understand that Mr. Gorby died of natural causes while in custody in May 2013.
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14. Robert Gordon v. Crosby, No. 8:04-cv-355, 2006 WL 2474068 (M.D. Fla. Aug.
25, 2006), certificate of appealability denied sub nom. Gordon v. Sec’y, Dep’t of
Corr., 479 F.3d 1299 (11th Cir. 2007) (per curiam).
15. Richard Hamilton v. Sec’y, DOC, 410 F. App’x 216 (11th Cir. 2010) (per curiam),
cert. denied sub nom Hamilton v. Tucker, ___ U.S. ___, 132 S. Ct. 226 (2011).
16. Paul Howell v. Crosby, 415 F.3d 1250 (11th Cir. 2005), cert. denied, 546 U.S.
1108, 126 S. Ct. 1059 (2006). 11
17. Jeffrey Hutchinson v. Florida, 677 F.3d 1097 (11th Cir. 2012), cert. denied, ___
U.S. ___, 133 S. Ct. 435 (2012).
18. Ronnie Johnson v. Fla. Dep’t of Corr., 513 F.3d 1328 (11th Cir. 2008), cert. denied
sub nom. Johnson v. McNeil, 555 U.S. 851, 129 S. Ct. 348 (2008).12
19. Gary Lawrence v. Florida, 421 F.3d 1221 (11th Cir. 2005), aff’d, 549 U.S. 327,
127 S. Ct. 1079 (2007).
20. Pablo San Martin v. McNeil, 633 F.3d 1257 (11th Cir. 2011), cert. denied sub nom.
San Martin v. Tucker, ___ U.S. ___, 132 S. Ct. 158 (2011).
21. Kenneth A. Stewart v. Sec’y, Dep’t of Corr., No. 8:11-cv-44 (M.D. Fla. Feb. 27,
2014), ECF No. 29 (order dismissing petition as time barred), certificate of appeal
pending, 14-11238 (11th Cir. Apr. 15, 2014).
22. William Sweet v. Sec’y, Dep’t of Corr., 467 F.3d 1311 (11th Cir. 2006), cert.
denied sub nom. Sweet v. McDonough, 550 U.S. 922, 127 S. Ct. 2139 (2007).
23. Anthony Wainwright v. Sec’y, Dept. of Corr., 537 F.3d 1282 (11th Cir. 2007) (per
curiam).
11
Mr. Howell was executed on February 26, 2014.
12
Mr. Johnson has two death sentences stemming from two separate state court proceedings
involving different victims, but occurring nine days apart. Johnson, 513 F.3d at 1329; see also
Johnson v. State, 696 So. 2d 317 (Fla. 1997); Johnson v. State, 696 So. 2d 326 (Fla. 1997). He
filed a pair of § 2254 federal habeas petitions, one attacking his first death sentence, and the
other attacking his second death sentence. Johnson, 513 F.3d at 1329. Both § 2254 petitions
were dismissed as untimely. Id.
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24. Michael Zack v. Tucker, 704 F.3d 917 (11th Cir. 2013) (en banc) (finding all
claims except one claim to be time barred), cert. denied sub nom. Zack v. Crews,
___ U.S. ___, 134 S. Ct. 156 (2013).
Florida capital defendants who filed § 2254 habeas petitions which were
untimely and qualified for equitable tolling:
25. Mark Asay v. McNeil, No. 3:05-cv-147, 2009 WL 9081403 (M.D. Fla. Feb. 10,
2009), cert. denied, 558 U.S. 1007, 130 S. Ct. 495 (2009).13
26. Ronald Palmer Heath v. Sec’y, Fla. Dep’t of Corr., No. 1:09-cv-148-MCR-CAS
(N.D. Fla. August 16, 2010), ECF No. 66 (order adopting report and
recommendation, ECF No. 62, finding petition untimely but equitable tolling
appropriate making petition timely filed), denial of habeas corpus aff’d, 717 F.3d
1202 (11th Cir. 2013).
27. Albert Holland v. Florida, 560 U.S. 631, 130 S. Ct. 2549 (2010), remanded to 854
F. Supp. 2d 1229 (2012) (vacating conviction and granting request for new trial).
28. Jose Jimenez v. Crosby, No. 1:04-cv-20132 (S.D. Fla. Jan. 30, 2006), ECF No. 73
(finding equitable tolling but denying relief), certificate of appealability denied sub
nom. Jimenez v. Fla. Dep’t of Corr., 481 F.3d 1337 (11th Cir. 2007) (per curiam),
cert. denied sub nom. Jimenez v. McDonough, 552 U.S. 1029, 128 S. Ct. 628(2007).
29. William Thomas v. McNeil, No. 3:03-cv-237, 2009 WL 9081403 (M.D. Fla. Feb.
10, 2009) (finding equitable tolling and denying motion to dismiss for
untimeliness), cert. denied, 558 U.S. 1007, 130 S. Ct. 498 (2009), relief denied sub
nom. Thomas v. Sec’y, Fla. Dep’t of Corr., No. 3:03-cv-237 (M.D. Fla. Sept. 3,
2013), ECF No. 141, appeal docketed, No.13-14635 (11th Cir. Oct. 7, 2013).
30. Ernest Whitfield v. Sec’y, Dep’t of Corr., No. 8:07-cv-1823 (M.D. Fla. May 31,
2012), ECF No. 59 (vacating order granting motion to dismiss petition as time
barred and finding petitioner was entitled to equitable tolling), certificate of
appealability denied, No. 13-13625 (11th Cir. Mar. 24, 2014).
13
The District Court recently denied Mr. Asay’s habeas petition. See Asay v. Sec’y, Fla. Dep’t
of Corr., No. 3:05-cv-147 (M.D. Fla. April 14, 2014), ECF No. 152 at 51 (order denying petition
and granting certificate of appealability).
51
Case: 11-13439 Date Filed: 04/24/2014 Page: 52 of 53
Florida capital defendants identified by the Clerk of the Florida Supreme
Court who have been denied relief in initial state postconviction proceedings
but do not appear to have timely filed a federal habeas petition: 14
31. Marvin Jones v. State, 928 So. 2d 1178 (Fla. 2006).
32. David Miller v. State, 926 So. 2d 1243 (Fla. 2006).
33. James Rose v. State, 985 So. 2d 500 (Fla. 2008).
Other Florida Capital defendants who the Florida Attorney General has
alleged would have had an untimely filed federal habeas petition:
34. Byron Bryant v. McNeil, 9:05-cv-80562 (S.D. Fla. Feb. 23, 2009), ECF No. 23 at 3
(motion to dismiss for lack of prosecution alleging that no federal petition had been
filed and more than three years of untolled time had elapsed since petitioner
Bryant’s case became final in state postconviction).15
14
The Clerk of the Florida Supreme Court is required to certify to the governor those individuals
on the state’s death row who have (1) completed their direct appeal, state postconviction
proceeding, and federal habeas proceeding or (2) “[a]llowed the time permitted for filing a
habeas petition in federal court to expire.” Fla. Stat. § 922.052. The purpose of the certification
is to facilitate the issuance of warrants of execution. Id. The individual cases listed here are
identified in the Clerk’s October 4, 2013 certification letter as having failed to file a federal
habeas petition “within the time frame allowed.” Letter from Thomas D. Hall, Clerk, Supreme
Court of Florida, to Rick Scott, Florida State Governor (Oct. 4, 2013), available at
http://prod-admin1.halifax.atex.cniweb.net:8080/polopoly_fs/1.214714.1381180730%21/
menu/standard/file/8%20appeals.pdf. For each of these defendants, we could find no evidence
of any federal habeas petition filed to date. A habeas petition has recently been filed in another
case included in the Clerk’s letter, Anton Krawczuk v. State, 92 So. 3d 195 (Fla. 2012), but there
has yet to be a determination on timeliness, entitlement to equitable tolling, or the merits.
Petition for Writ of Habeas Corpus by a Person in State Custody, Krawczuk v. Crews, No. 2:13-
cv-00559 (M.D. Fla. July 18, 2013), ECF No. 1.
15
I understand Mr. Bryant died of natural causes on September 19, 2009. Since Mr. Bryant
never filed a § 2254 habeas petition, there has not been a determination about whether his
petition would have been considered untimely or qualified for equitable tolling. However, as the
Attorney General’s February 9, 2009 motion to close the case for lack of prosecution alleged, it
appears that more than three years of un-tolled time had passed since Mr. Bryant’s initial round
of state postconviction had become final and no § 2254 federal petition had been filed. Bryant,
9:05-cv-80562 (S.D. Fla. Feb. 23, 2009), ECF No. 23 at 1–3 (noting that Mr. Bryant’s case
became final on November 13, 2001, when the U.S. Supreme Court denied his petition for
certiorari review from his direct appeal, see Bryant v. Florida, 534 U.S. 1025, 122 S. Ct. 55752
Case: 11-13439 Date Filed: 04/24/2014 Page: 53 of 53
(2001), and the Florida Supreme Court issued its mandate on May 19, 2005 following the denial
of state postconviction relief, see Bryant v. State, 901 So. 2d 810 (Fla. 2005)); see also Nyland v.
Moore, 216 F.3d 1264, 1267 (11th Cir. 2000) (per curiam) (concluding that, in Florida, properly
filed state postconviction motions remain pending for purposes of 28 U.S.C. § 2244(d)(2) until
issuance of the state appellate court’s mandate).
53