Miguel Williams v. Wendy Kelley ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-1362
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Miguel Williams
lllllllllllllllllllllPetitioner - Appellant
v.
Wendy Kelley, Director, Arkansas Department of Correction
lllllllllllllllllllllRespondent - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
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Submitted: June 15, 2016
Filed: July 28, 2016
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Before SMITH and GRUENDER, Circuit Judges, and KETCHMARK,1 District
Judge.
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SMITH, Circuit Judge.
1
The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri, sitting by designation.
Miguel J. Williams appeals the district court's2 dismissal of his habeas petition
as time-barred. He argues that the one-year statute of limitations provided by
28 U.S.C. § 2244(d) should be equitably tolled because of the outrageous conduct of
his attorney, John Stratford. Because Williams did not diligently pursue his federal
habeas rights, we affirm.
I. Background
On February 29, 2012, a Pulaski County, Arkansas jury convicted Williams of
aggravated residential burglary and aggravated robbery. The jury then sentenced
Williams to 300 months' imprisonment. Williams's trial counsel, Darrell Brown, told
Williams that he had a right to appeal the conviction. But Brown also made clear to
Williams that he would not represent him on appeal. On March 16, 2012, the court
entered the judgment and commitment order in Williams's case. That same day,
Brown mailed two blank forms to Williams: a notice of appeal and an affidavit of
indigence. On March 20, 2012, Williams's mother asked Brown to handle the appeal.
Brown declined and filed a motion to withdraw as Williams's attorney. On March 22,
2012, Brown met with Williams's mother and reiterated that he was withdrawing from
the case and would not represent Williams on appeal. The next day, Brown followed
up with Williams's mother by e-mail, repeating his intent to withdraw from the case
and providing her with a notice of appeal and an affidavit of indigence. On March 27,
2012, the court entered an amended judgment and commitment order; this final order
started Williams's 30-day window for appeal, which expired on April 26, 2012. On
April 9, 2012, the court granted Brown's request to withdraw.
While in jail, Williams found attorney Stratford's telephone number on a wall.
Williams gave the number to his mother, who contacted Stratford. She met with
Stratford before the amended judgment and commitment order had been filed.
2
The Honorable Joe J. Volpe, United States Magistrate Judge for the Eastern
District of Arkansas, sitting by consent of the parties.
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Stratford asked attorney Craig Lambert to attend the meeting and consult on
Williams's case. At that time, Williams's mother gave Stratford $1,500 and agreed to
continue making monthly payments toward a $4,000 retainer. Having researched
Williams's case before the meeting, Lambert told Stratford and Williams's mother that
the time to file a notice of appeal in Williams's case had not yet expired and that it
would cost approximately $2,000 to prepare the trial-court transcript for appeal.
Stratford undertook Williams's representation but never filed a notice of appeal in
Williams's state case.
From March 2012 until December 2012, Williams's mother met with Stratford
and made monthly $400 payments toward Stratford's retainer. In December 2012,
Stratford told her to stop. Stratford had allowed Williams's case to languish for nine
months without any progress. On January 10, 2013, Stratford called Williams to
schedule a meeting to discuss the situation. Lambert and Stratford agreed to
ghostwrite an application for belated appeal that Williams would file pro se in the
Arkansas Supreme Court. The one-year statute of limitations for a federal habeas
petition and the 18-month statute of limitations for an application for belated state
appeal were approaching. On January 30, 2013, the Arkansas Supreme Court rejected
Williams's pro se application because it was procedurally deficient—it lacked a
verified signature and a certified copy of the amended judgment and commitment
order.
On May 6, 2013, the Arkansas Supreme Court acknowledged receipt of
Williams's resubmitted application for belated appeal. Williams took no other action
on his case. He did not file a pro se habeas petition in the federal court. He did not
contact Stratford or Lambert regarding federal habeas relief. Stratford and Lambert
failed to seek federal habeas relief or advise Williams that the one-year statute of
limitations would bar a claim for relief.
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On June 6, 2013, the Arkansas Supreme Court denied Williams's resubmitted
application for belated appeal. The application that Stratford and Lambert wrote
argued for relief by alleging that Brown had provided ineffective assistance. The claim
was without merit and rejected.
No one did anything on Williams's case until November 2013. At that time,
Stratford—not Williams—initiated contact and discussed filing a federal habeas
petition. Williams filed the instant pro se petition for habeas relief—again
ghostwritten by Stratford and Lambert—in December 2013.
After an evidentiary hearing, the district court dismissed Williams's habeas
petition as time-barred, reasoning that Williams did not diligently pursue his federal
habeas rights. Williams appeals. We have jurisdiction to review this final judgment
of the district court pursuant to 28 U.S.C. § 1291.
II. Discussion
The district court concluded that Williams's habeas petition is time-barred
because he did not pursue his rights diligently. Williams argues that he acted with
sufficient diligence by hiring an attorney. We affirm.
We review de novo the district court's denial of equitable tolling. Muhammad
v. United States, 735 F.3d 812, 815 (8th Cir. 2013). The statute of limitations for
habeas relief provided by 28 U.S.C. § 2244(d) may be tolled on the basis of equity if
the petitioner establishes "(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way and prevented timely filing."
Holland v. Florida, 560 U.S. 631, 649 (2010) (quotation and citation omitted). A
petitioner acts with diligence when, for example, he writes letters to his attorney
asking her to file a habeas petition, contacts the court to learn about the status of his
case, seeks to have his attorney removed for failure to pursue his case, and files a pro
se petition the very day that he learns it is late. Id. at 653. In contrast, a petitioner does
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not act diligently when he simply assumes that his attorney is working on his case
even though she does not respond to his communication and hangs up on him when
he calls. Muhammad, 735 F.3d at 817.
In this case, Williams failed to take any action to pursue his federal habeas
rights even though it became clear that his hired attorney was not effectively pursuing
the available remedies. By the end of January 2013, Stratford's failings were apparent.
Stratford had told Williams's mother to stop making payments toward the cost of
Williams's appeal because he had not completed any work on it; Stratford had visited
Williams to discuss filing a pro se application for belated appeal; Williams had filed
the application for belated appeal on his own; and he had received a deficiency notice
for that application from the Arkansas Supreme Court, presumably because he was
getting no help from Stratford. In short, by the end of January 2013, Williams could
no longer reasonably rely on Stratford for legal assistance. At that time, Williams had
almost three months—until April 26, 2013—in which to file a timely habeas petition,
either through new counsel or by filing a petition pro se. Instead, Williams took no
action. Indeed, it was not until Stratford visited Williams in November 2013 to discuss
a habeas petition that Williams took any action to pursue this right. Stratford provided
poor to no representation to be sure,3 but Williams, for his part, did not pursue his
rights diligently.4 Accordingly, the district court correctly concluded that Williams's
petition is time-barred by 28 U.S.C. § 2244(d).
3
The Arkansas Supreme Court Committee on Professional Conduct has
cautioned Stratford for his actions in this case. John Chapman Stratford, CPC Docket
No. 2015-063 (Ark. Supreme Court Comm. on Prof'l Conduct Sept. 18, 2015),
https://courts.arkansas.gov/sites/default/files/opc_opinions/2015-063.pdf.
4
We therefore need not decide whether Stratford's poor representation
constitutes an extraordinary circumstance that stood in Williams's way and prevented
the timely filing of a habeas petition.
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III. Conclusion
For this reason, we affirm the dismissal of Williams's petition for habeas relief.
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