Stewart v. Secretary, Florida Department of Corrections

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10435 ELEVENTH CIRCUIT
DECEMBER 1, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-22002-CV-JLK
KELVIN STEWART,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL OF THE STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 1, 2009)
Before BARKETT, HULL and FAY, Circuit Judges.
PER CURIAM:
Kelvin Stewart, a Florida state prisoner proceeding pro se, appeals the
district court’s denial of his motion for relief from judgment, filed pursuant to
Fed.R.Civ.P. 60(b), in which he sought relief from the district court’s prior order
dismissing his 28 U.S.C. § 2254 petition as time-barred. Stewart does not dispute
that the federal petition was untimely filed. He argues, however, that the one-year
limitations period for filing a § 2254 petition should have been equitably tolled,
because (1) attorney Robyn Blake informed him that his state habeas petition had
been filed on November 4, 2004, when it was actually filed on December 22, 2004,
and (2) attorney Ana Davide failed to return his case file in a timely manner. He
asserts that Blake’s and Davide’s misconduct impeded his efforts to file his federal
§ 2254 petition within the limitation period. For the reasons set forth below, we
affirm.
I.
On August 1, 2007, Stewart signed and mailed this pro se § 2254 habeas
petition, raising several claims.1 Stewart asserted that his petition was filed timely
and listed the dates on which he had filed various state court motions. He asserted
that, on November 4, 2004, he filed a petition for writ of habeas corpus in state
1
Under the “mailbox rule,” the date a prisoner delivers a petition or other filing to prison
authorities for mailing is considered to be the date of filing with the court. Adams v. United
States, 173 F.3d 1339, 1341 (11th Cir. 1999).
2
court. An appendix attached to Stewart’s petition contained a petition for writ of
habeas corpus, signed by Blake, which stated that a copy had been sent to the
Office of the Attorney General and the Office of the State Attorney on November
4, 2004.
The district court ordered Stewart to amend his original § 2254 petition,
noting that the original petition contained at least 75 inserted pages and portions of
transcripts and appellate briefs. Stewart filed an amended petition that again stated
that his state habeas corpus petition had been filed on November 4, 2004. He
attached a number of documents to his amended petition, which showed the
following. The Third District Court of Appeals affirmed Stewart’s convictions and
sentences on direct appeal on December 24, 2003. A state petition for writ of
habeas corpus, which was not signed, was stamped as filed on December 22, 2004.
The state court denied this petition on April 14, 2005. Stewart then filed a pro se
Rule 3.850 motion for post-conviction relief, which was delivered to prison
officials on June 9, 2005. The state court denied the motion on January 3, 2006.
Stewart’s notice of appeal was filed by attorney Davide on February 10, 2006. The
Third District Court of Appeals’s docket sheet for the Rule 3.850 appeal listed
Davide as Stewart’s attorney during the pendency of the appeal. The Florida
appellate court affirmed the denial of Stewart’s Rule 3.850 motion on December 6,
3
2006, Stewart filed a pro se motion for rehearing, which was delivered to prison
officials on December 20, 2006. The Florida appellate court’s docket sheet
indicates that this motion was denied on January 10, 2007. Stewart then filed a
notice to invoke discretionary jurisdiction of the Florida Supreme Court, delivered
to prison officials on January 19, 2007, and the Florida Supreme Court’s denied
review on May 24, 2007.
The state responded that Stewart’s petition for writ of habeas corpus should
be dismissed as untimely because, even after taking into account the time in which
the limitations period was tolled, Stewart’s § 2254 petition was filed more than a
year after his convictions became final.
The magistrate judge filed a report and recommendation (“R&R”), which
recommended dismissing Stewart’s § 2254 petition as untimely. The magistrate
explained the procedural history of Stewart’s case as follows. The Florida
Supreme Court affirmed Stewart’s convictions and sentences on December 24,
2003. On December 22, 2004, Stewart filed a pro se petition for writ of habeas
corpus in the Florida appellate court. The Florida appellate court denied this
petition on April 14, 2005, and the database maintained by the Clerk of the Court
for the Third District Court of Appeal showed that “the case was disposed of
without mandate” on May 6, 2005. On June 9, 2005, Stewart filed a pro se motion
4
for post-conviction relief, pursuant to Rule 3.850. The Florida trial court denied
this motion, the Florida appellate court affirmed the denial, and the Florida
Supreme Court, on May 24, 2007, denied Stewart’s petition for discretionary
review, as well as the writ of mandamus Stewart had filed in the Florida Supreme
Court. The magistrate noted that the present § 2254 petition was filed on August 1,
2007, more than two months after the conclusion of all state court proceedings.
The magistrate explained that the Antiterrorism and Effective Death Penalty
Act, (“AEDPA”), imposes a one-year statute of limitations on habeas petitions,
which begins to run when the judgment becomes final. It noted that the limitation
period is subject to equitable tolling “in ‘rare and exceptional cases.’” The
magistrate determined that Stewart’s convictions and sentences became final, at the
latest, on March 23, 2004, 90 days after the Third District Court of Appeals’ order
affirming his convictions on direct appeal. It found that, “even after giving Stewart
tolling credit for the time all postconviction proceedings remained pending, there
remains more than one-year of untolled time (i.e., a total of 374 days of untolled
time).” Therefore, the magistrate determined that Stewart’s petition was due in
federal court on or before July 23, 2007. The petition, however, was filed nine
days later, on August 1, 2007.
The magistrate noted that there was a discrepancy between the state court
5
record and the timeline set forth in Stewart’s district court pleadings. Specifically,
Stewart indicated that his state habeas petition was filed on November 4, 2004, and
he included in the Appendix accompanying his original habeas petition “a
purported Petition for Writ of Habeas Corpus prepared and executed by attorney
Robyn Blake.” The magistrate noted, however, that the petition prepared by Blake
“indicates no court file-stamp date or any other indication from the state appellate
court that the particular petition was ever filed with the Florida Third District Court
of Appeal.” The magistrate also pointed out that the Third District Court of
Appeals’ docket “clearly indicates that Stewart proceeded pro se in the appellate
court proceeding and he was not represented by attorney Robyn M. Blake or any
other attorney.” Thus, it found that “[a]ny assertion by Stewart that he was
represented by counsel during the proceeding and that his state habeas corpus
petition was filed earlier than December 22, 2004 is unsubstantiated.”
The magistrate found that Stewart’s timely filing for state post-conviction
relief had no bearing on his present federal habeas petition, because “petitioners
who rely upon the timeliness of state post-conviction proceedings to satisfy the
requirements of AEDPA do so at their peril.” It also found that Stewart was not
entitled to equitable tolling based on a showing of actual innocence. Finally, the
magistrate concluded that Stewart failed to show that he “was in any way impeded
6
by any unconstitutional State action in pursuing his direct appeal, state habeas
corpus proceedings, other postconviction proceedings and appeal from the denial
of such relief, or filing this federal petition for writ of habeas corpus.” It noted that
Stewart’s pro se status did not excuse the delay in filing. Because Stewart
“presented no valid justification supported by the record for his failure to timely
file his federal habeas corpus petition,” the magistrate recommended dismissing
the petition.
After noting that Stewart had not filed any objections to the R&R, the
district court affirmed and adopted the R&R, and dismissed as untimely Stewart’s
petition for writ of habeas corpus. The order of dismissal was entered on May 1,
2008. Subsequently, Stewart moved for, and the district court, on May 6, 2008,
granted a 60-day extension to file objections to the R&R. On July 3, 2008, Stewart
filed a request for an additional 10-day extension in which to file his objections.
The district court denied this extension, stating that Stewart’s objections had been
due by April 29, 2008.
On July 11, 2008, Stewart mailed his objections to the R&R, the following
of which are relevant to the instant appeal. Stewart contended that “extraordinary
circumstances” prohibited him from filing his § 2254 petition within the one-year
statute of limitations. First, he objected to the magistrate’s finding that he was not
7
represented by counsel when filing his state habeas petition, asserting that “an
agreement was entered in on November 1, 2004 between attorney Robin Blake and
Crystal Williams, on behalf of Stewart.” Stewart attached to his objections a copy
of the retainer agreement between Blake and Williams. He contended that Blake
promised him that she “would file and enter her notice of appearance immediately
upon receipt of an initial $2,000 cash payment.” Stewart asserted that he believed
Blake was representing him after Blake accepted the $2,000 payment. Stewart
asserted that Blake insisted, during a recent telephone call, that she filed the habeas
petition in state court, although Blake admitted that the date it was filed was “much
later than she originally claimed.” Stewart contended that it was only after the
filing of the R&R that he had any reason to believe Blake had not filed his habeas
petition in November 2004 or that Blake had not been acting as his attorney of
record. He asserted that Blake’s gross misrepresentations to him regarding the
filing of the habeas petition had a detrimental affect on his ability to accurately
calculate the deadline for filing his federal habeas petition.
Stewart also asserted that his ability to file his federal habeas petition
between May 24, 2007, the date of the Florida Supreme Court’s denial of
discretionary relief, and July 23, 2007, the end of the one-year statute of limitations
to file his federal petition, was impeded by Davide, who “maintained possession of
8
his entire case file throughout the duration of this period.” Stewart asserted that he
and his family members contacted Davide on numerous occasions to retrieve the
records, but the records were not returned until July 17, 2007. He asserted that the
records in Davide’s possession included original trial transcripts, the state habeas
petition, the Rule 3.850 motion, and the briefs filed on direct appeal, as well as
during post-conviction appeals. Stewart argued that the actions of both Blake and
Davide were “sufficiently egregious to constitute the sort of rare and ‘extraordinary
circumstances’ that would justify the application of equitable tolling.”
Stewart attached to his objections a copy of the Third District Court of
Appeal docket sheet for the appeal of his Rule 3.850 motion. The docket sheet
indicated that Stewart was represented by Ana M. Davide during this appeal.
Stewart also attached a retainer agreement, “entered into on November 1, 2004
between CRYSTAL WILLIAMS, on behalf of KELVIN STEWART (“CLIENT”),
and ROBYN M. BLAKE, P.A. (“ATTORNEY”).” The agreement indicated that
Stewart retained Blake to represent him in filing a habeas corpus petition. A
certificate of service, signed by Blake, indicated that a copy of the retainer
agreement was mailed to the Office of the Attorney General and the Office of the
State Attorney on November 4, 2004.
On November 17, 2008, Stewart filed a motion for relief from judgment,
9
indicating that the motion was brought pursuant to Fed.R.Civ.P. 60(b), and asking
the court to reverse (1) its order dismissing his § 2254 petition as untimely, and (2)
its order denying his motion for an additional 10-day extension to file objections to
the R&R. He also asked the court to consider the exhibits attached to his
objections to the R&R, and asserted that these exhibits would show why his § 2254
petition was filed late. The district court issued an order denying Stewart’s motion
for relief from judgment, stating that it had reviewed all the pleadings, including
Stewart’s objections to the R&R, and determined that the motion should be denied
“for the same reasons set forth in the Court’s Final Order of Dismissal.”
Stewart filed a motion for certificate of appealability, (“COA”), which the
district court denied. We issued a COA on the following issue only: “Whether the
district court erred in finding that Stewart’s petition for writ of habeas corpus, 28
U.S.C. § 2254, was not entitled to equitable tolling on the basis of attorney
misconduct?”
II.
Procedural Issues
Although the COA focuses on whether the district court properly rejected
Stewart’s equitable tolling claims, we first discuss several procedural issues. See
McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001) (noting that
10
procedural issues that must be resolved before we can address the underlying claim
specified in a COA are presumed to be encompassed within the COA). Stewart
appeals the district court’s order denying his Rule 60(b) motion for relief from
judgment, in which Stewart asked the court to reverse (1) its order dismissing his
§ 2254 petition as untimely and (2) its order denying an additional 10-day
extension in which to file objections to the magistrate’s R&R. In his motion,
Stewart argued that the district court’s order denying the 10-day extension failed to
account for the previous 60-day extension it had granted and erroneously stated
that his objections had been due on April 29, 2008. He also asserted that the
exhibits attached to his objections to the R&R would show why his § 2254 petition
was not filed before the one-year AEDPA deadline.
We have acknowledged that “a Rule 60(b) motion is to be treated as a
successive habeas petition if it: (1) ‘seeks to add a new ground of relief;’ or (2)
‘attacks the federal court’s previous resolution of a claim on the merits.’”
Williams v. Chatman, 510 F.3d 1290, 1293-94 (11th Cir. 2007) (quoting Gonzalez
v. Crosby, 545 U.S. 524, 532, 125 S. Ct. 2641, 2648, 162 L. Ed. 2d 480 (2005)).
However, where “a Rule 60(b) motion ‘attacks, 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,’ the motion is not a successive habeas petition.” Id. at
11
1294 (quoting Gonzalez, 545 at 532, 125 S. Ct. at 2648). A “claim” is “an asserted
federal basis for relief from a state court’s judgment of conviction.” Id. (citing
Gonzalez, 545 U.S. at 530, 125 S. Ct. at 2647).
In this instance, Stewart’s Rule 60(b) motion is not a successive habeas
petition. First, Stewart does not seek to add a new ground of relief. See Williams,
510 F.3d at 1293-94. Instead, he challenges the district court’s refusal to consider
his objections to the R&R and asserts that the exhibits attached to these objections
would bolster his argument that his § 2254 petition was entitled to equitable
tolling. Stewart also does not attack the district court’s prior resolution of a claim
on the merits. See id. at 1293-94. The district court did not address the claims
raised in Stewart’s original § 2254 petition, because it denied the petition as
untimely. See id. at 1294 (defining a “claim” as “an asserted federal basis for relief
from a state court’s judgment of conviction”). Accordingly, we do not consider
Stewart’s Rule 60(b) motion to be a successive habeas petition.
Stewart challenges two judgments in his Rule 60(b) motion: (1) the denial of
a 10-day extension in which to file objections to the R&R, and (2) the district
court’s order dismissing his § 2254 petition as untimely. We consider only the
district court’s dismissal of the § 2254 petition, because the denial of the 10-day
extension is not covered by the COA. See Diaz v. Dept. of Corr., 362 F.3d 698,
12
702 (11th Cir. 2004) (noting that “[a]ppellate review in a § 2254 proceeding is
limited to the issues specified in the [COA]”). We consider Stewart’s arguments
regarding equitable tolling, even though these arguments were first raised in his
objections to the R&R, because the district court specifically stated that it had
considered Stewart’s objections to the R&R in denying his Rule 60(b) motion for
relief from judgment.
It appears that Stewart brings his motion for relief from judgment under
Fed.R.Civ.P. Rule 60(b)(6), which provides that “the court may relieve a party or
its legal representative from a final judgment, order, or proceeding
for . . . any . . . reason that justifies relief.” Fed.R.Civ.P. Rule 60(b)(6). We review
for abuse of discretion a district court’s denial of a Rule 60(b) motion for relief
from judgment. Williard v. Fairfield Southern Co., Inc., 472 F.3d 817, 821 (11th
Cir. 2006).
Equitable Tolling
The AEDPA imposes a one-year statute of limitations for filing a federal
habeas petition. 28 U.S.C. § 2244(d)(1). The limitation period under § 2244(d)
may be equitably tolled where the “movant untimely files because of extraordinary
circumstances that are both beyond his control and unavoidable even with
diligence.” Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). We
13
have noted that ordinary attorney negligence does not warrant equitable tolling.
See Downs v. McNeil, 520 F.3d 1311, 1325 (11th Cir. 2008) (reaffirming that
“ordinary attorney negligence does not warrant equitable tolling”). “When an
attorney miscalculates a deadline, fails to adequately raise a potentially meritorious
claim, or otherwise makes a run-of-the-mill mistake, a habeas petitioner must live
with the consequences of the error.” Id.
We have held that equitable tolling should not apply where an attorney
misadvised his client as to the triggering of the AEDPA’s one-year limitation.
Helton v. Sec’y, Dept. Of Corr., 259 F.3d 1310, 1313 (11th Cir. 2001). We
concluded that counsel’s conduct did not amount to an extraordinary circumstance,
and that Helton did not show due diligence because, even though his attorney put
him on notice that there was confusion in this area of the law, Helton did not do his
own research into the relevant provision. Id. In Downs, however, we vacated a
district court order dismissing a habeas petition as untimely based on counsel’s
alleged behavior that “ran the gamut from acts of mere negligence to acts of gross
negligence to acts of outright willful deceit.” Downs, 520 F.3d at 1323. Although
we viewed counsel’s behavior as a whole, “it [was] material to the Downs decision
that the alleged acts of attorney misconduct included affirmative
misrepresentations by counsel about the filing of a state habeas petition: such a
14
filing would have tolled the federal habeas limitations period.” Holland v. Florida,
539 F.3d 1334, 1339 (11th Cir. 2008), cert. granted, No. 09-5327 (U.S. Oct. 13,
2009) (emphasis in original).
Stewart bases his argument for equitable tolling on the fact that Blake
informed him that she had filed his state habeas petition on November 4, 2004.
Assuming Stewart’s allegations are true, it would appear that Blake’s conduct was
more similar to the “overt deception” described in Downs, rather than mere
negligence or gross negligence, because Blake affirmatively misrepresented to
Stewart that a tolling motion had been filed. See Downs, 520 F.3d at 1322;
Holland, 539 F.3d at 1339. However, to be eligible for equitable tolling based on
attorney misconduct, a petitioner must show “not only ‘extraordinary
circumstances,’ but also circumstances that are beyond the petitioner’s control and
unavoidable even with diligence.” Downs, 520 F.3d at 1323. The record reflects
that a state habeas petition was filed on December 22, 2004. The Florida appellate
court’s docket sheet indicates that this document was filed by Stewart himself.
Since Stewart filed this document himself, he would have been aware that Blake
had not filed the state habeas petition on November 4th, as promised. Thus,
Stewart should have known that the limitations period had run untolled until
December 22, 2004. By exercising due diligence, he could have recalculated the
15
deadline for filing his federal habeas petition, accounting for this additional,
untolled time. See id. Furthermore, as of December 22, 2004, the limitations
period had run untolled for only 274 days. Therefore, Stewart should have known,
on December 22, 2004, that after the state court ruled on his habeas petition, he
would have 91 days in which to file a federal petition. This stands in stark contrast
to Downs, in which counsel filed the petitioner’s state habeas petition only one day
prior to the expiration of the federal statute of limitations. See id. at 1322. We
specifically noted in Downs that the federal limitations period would have run by
the time that the petitioner received notice of the state court’s ruling on the state
habeas petition. See id.
Stewart also argues that he is entitled to equitable tolling because Davide
failed to return the case files to him until July 17, 2007. However, the magistrate
found that Stewart’s one-year statute of limitations did not expire until July 23,
2007. Because Stewart was filing pro se, the date on which he mailed the petition
would be considered the filing date. See Adams v. United States, 173 F.3d 1339,
1341 (11th Cir. 1999). Thus, after receiving the files from Davide, Stewart had six
days in which to prepare and submit his federal habeas petition. More importantly,
there is no evidence that Davide’s failure to return the record until July 23rd was
the result of any egregious misconduct. At the most, Davide’s failure to return the
16
record in a timely fashion may be considered negligent. This mere negligence is
not the type of attorney misconduct that will trigger equitable tolling. See Downs,
520 F.3d at 1325. Because Stewart has failed to show that the untimeliness of his
petition was the result of “extraordinary circumstances” that were “unavoidable
even with diligence,” he failed to show that he was entitled to equitable tolling and
the district court correctly denied Stewart’s § 2254 petition and his motion for
relief from judgment. Accordingly, we affirm the district court’s denial of
Stewart’s motion for relief from judgment.
AFFIRMED.
17