Hollinger v. Secretary Department of Corrections

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15472 ELEVENTH CIRCUIT
JUNE 26, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-01232-CV-ORL-22-GJK
TRESTON HOLLINGER,
Petitioner-Appellant,
versus
SECRETARY DEPARTMENT OF CORRECTIONS,
FLORIDA ATTORNEY GENERAL,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 26, 2009)
Before CARNES, HULL and WILSON, Circuit Judges.
PER CURIAM:
Treston Hollinger, a Florida state prisoner proceeding pro se, appeals the
dismissal of his habeas corpus petition, 28 U.S.C. § 2254, as untimely. We granted
a certificate of appealability on “[w]hether the district court erred in finding that
Hollinger was not entitled to equitable tolling because he failed to establish a
causal connection between the state court’s failure to notify him of an appellate
decision and his failure to timely file his § 2254 petition.” After review, we vacate
the district court’s dismissal and remand for further proceedings consistent with
this opinion.
I. BACKGROUND
A. Direct Appeal
In March 2003, a jury convicted Hollinger of robbery with a weapon.
Because Hollinger was a habitual violent felony offender, the Florida trial court
sentenced him to life imprisonment. On June 8, 2004, the Florida appellate court
affirmed the conviction and sentences. On July 23, 2004, rehearing was denied.
Under AEDPA,1 Hollinger’s conviction became “final” on October 21,
2004—90 days after rehearing was denied on direct appeal. See Bond v. Moore,
309 F.3d 770, 773–74 (11th Cir. 2002) (explaining that a judgment becomes
“final” on the date on which the U.S. Supreme Court issues a decision on the
merits of petitioner’s direct appeal or denies certiorari, or after the expiration of the
1
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.
104-132, 110 Stat. 1214.
2
90 days in which petitioner could file such a petition). AEDPA’s one-year statute
of limitations for § 2254 petitions thus began to run on October 21, 2004, when
Hollinger’s conviction became final. See 28 U.S.C. § 2244(d)(1).
B. State Collateral Proceedings
On February 9, 2005, Hollinger signed and submitted a state habeas petition
alleging ineffective assistance of counsel. Between October 21, 2004, and
February 9, 2005, 111 days ran on Hollinger’s AEDPA clock. On March 9, 2005,
the Florida Supreme Court denied Hollinger’s state habeas petition. From
February 9 to March 9, 2005, Hollinger’s AEDPA clock was tolled. See 28 U.S.C.
§ 2244(d)(2) (stating that a “properly filed application for State post-conviction or
other collateral review” tolls the AEDPA limitations period while the state
application is pending).
Hollinger’s AEDPA clock then ran another 13 days from March 10 to March
22, 2005, for a total of 124 days. It stopped again on March 22, 2005, when
Hollinger signed and submitted a Florida Rule of Criminal Procedure 3.850 motion
for post-conviction relief in state court. On May 17, 2005, the state court issued an
order denying Hollinger’s Rule 3.850 motion and stating that the order was mailed
to Hollinger. However, at this motion to dismiss stage, the government has not
disputed Hollinger’s contention that he did not learn of the May 17, 2005, order
3
(denying his Rule 3.850 motion) until February 1, 2006.2
Hollinger did not appeal the denial of his Rule 3.850 motion at that time.
Thus, his AEDPA clock began to run again on June 16, 2005 (30 days after the
May 17, 2005 order). See Fla. R. Crim. P. 3.850(g) (providing movant 30 days to
timely appeal all orders denying motion for post-conviction relief).3 As of June 16,
2005, Hollinger had 241 days, or until February 13, 2006, left on his AEDPA
clock.
On January 13, 2006, before his AEDPA clock ran out on February 13,
2006, Hollinger wrote the state clerk of court inquiring about his Rule 3.850
motion. On February 1, 2006, Hollinger received from Maryanne Morse, Clerk of
Court, a copy of the May 17, 2005, order denying his Rule 3.850 motion. On
February 1, 2006, Hollinger still had 12 days left on his AEDPA clock. Although
Hollinger filed, and was granted, a motion for a belated 3.850 appeal, he did not
file a state or federal pleading between February 1–12, 2006. Thus, Hollinger’s
2
In response to the government’s motion to dismiss his § 2254 petition, Hollinger
submitted four exhibits, including: (1) the mail log showing that he received no legal mail
between May 17, 2005, and February 1, 2006; and (2) his January 13, 2006, inquiry to the clerk
of clerk regarding the status of his Rule 3.850 motion.
3
The district court properly added a 30-day period of statutory tolling after the May 17,
2005, order denying Hollinger’s Rule 3.850 motion for the 30 days that he had to appeal that
order under Florida law. Under AEDPA, the one-year limitations period is tolled for “[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.” 28 U.S.C. § 2244(d)(2). A state post-
conviction or collateral motion remains “pending,” and thus tolls under § 2244(d)(2), for the
time during which the petitioner could have appealed the denial of such motion, even if the
petitioner did not file an appeal. See Cramer v. Sec’y, Dep’t of Corr., 461 F.3d 1380, 1383 (11th
Cir. 2006) (addressing Fla. R. Crim. P. 3.800 motion).
4
AEDPA clock ran out on February 13, 2006.
C. April 21, 2006, Motion for Belated Rule 3.850 Appeal
Hollinger requested the prison mail room log to show he had not received
any legal mail between May 17, 2005 and February 1, 2006. On April 21, 2006,
Hollinger filed a motion for belated appeal of the denial of his Rule 3.850 motion,
which the state court granted. Because Hollinger’s AEDPA clock already had
expired on February 13, 2006, his belated Rule 3.850 appeal did not statutorily toll
the AEDPA limitations period. See Moore v. Crosby, 321 F.3d 1377, 1381 (11th
Cir. 2003) (concluding that Rule 3.850 motion, “filed after expiration of the
limitations period[,] does not relate back so as to toll idle periods preceding the
filing of the federal [habeas] petition”); Tinker v. Moore, 255 F.3d 1331, 1333
(11th Cir. 2001) (explaining that where a Rule 3.850 motion is filed after the
expiration of the one-year period, it does not toll the period under § 2244(d)(2)
because no period remains to be tolled).4
D. Decision on Belated Rule 3.850 Appeal
4
The Supreme Court recently construed § 2244(d)(1)(A), which defines the starting date
for AEDPA’s one-year limitations period as “the date on which the judgment became final by
the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A). In Jimenez v. Quarterman, — U.S. —, 129 S. Ct. 681, 685 (2009), the
Supreme Court concluded that direct review cannot conclude for purposes of § 2244(d)(1)(A)
until the “availability of direct appeal to the state courts” is exhausted. Id. (quotation marks and
citation omitted). “[W]here a state court grants a criminal defendant the right to file an out-of-
time direct appeal during state collateral review, but before the defendant has first sought federal
habeas relief, his judgment is not yet ‘final’ for purposes of § 2244(d)(1)(A).” Id. at 686.
Because Hollinger’s belated appeal was not a direct appeal of his conviction, Jimenez does not
affect the calculation of Hollinger’s AEDPA clock.
5
On November 17, 2006, the state appellate court affirmed the denial of
Hollinger’s Rule 3.850 motion on all but one ground, which was remanded to the
state trial court for consideration because that court inadvertently failed to address
it. The state trial court subsequently denied Hollinger Rule 3.850 relief, and the
state appellate court affirmed on June 5, 2007.
E. § 2254 Federal Habeas Petition
On July 27, 2007, Hollinger filed his § 2254 petition. Of course, his
AEDPA clock ran out on February 13, 2006, making his § 2254 petition 528 days
too late. His belated 3.850 appeal proceedings ran from April 21, 2006, to June 5,
2007, which consumed a significant part of the 528 days. Thus, Hollinger needs
equitable tolling simply for the time during which the state court failed to notify
him of the May 17, 2005, order denying his Rule 3.850 motion.
The district court dismissed the § 2254 petition and rejected Hollinger’s
claim of equitable tolling. The district court noted that, “[w]hen Petitioner learned
that his Rule 3.850 motion had been denied, twelve days [February 1–13, 2006]
remained in which Petitioner could have timely filed the instant habeas petition.”
Dist. Ct. Order at 6. The district court found that Hollinger “has not demonstrated
that a causal connection existed between the state court’s failure to notify him of
the disposition of his Rule 3.850 motion and his ability to timely file the instant
habeas petition.” Id. Hollinger appealed.
6
II. DISCUSSION
Hollinger argues that he is entitled to equitable tolling for the period from
June 16, 2005, 30 days after the state court denied his Rule 3.850 motion, until
February 1, 2006, the day Hollinger learned that the state court had denied his Rule
3.850 motion.5 That equitable tolling, combined with the statutory tolling that
would have occurred had Hollinger’s AEDPA clock not expired on February 13,
2006, would make his July 27, 2007, federal § 2254 petition timely under AEDPA.
AEDPA’s one-year statute of limitations may be equitably tolled when a
petitioner shows “‘extraordinary circumstances that are both beyond his control
and unavoidable even with diligence.’” Drew v. Dep’t of Corr., 297 F.3d 1278,
1286 (11th Cir. 2002) (quoting Sandvik v. United States, 177 F.3d 1269, 1271
(11th Cir. 1999)); see Diaz v. Sec’y for the Dep’t of Corr., 362 F.3d 698, 701 (11th
Cir. 2004). Equitable tolling is extraordinary and applied “sparingly.” Downs v.
McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008); Drew, 297 F.3d at 1286; Steed v.
Head, 219 F.3d 1298, 1300 (11th Cir. 2000). Equitable tolling “is limited to rare
and exceptional circumstances, such as when the State’s conduct prevents the
petitioner from timely filing.” Lawrence v. Florida, 421 F.3d 1221, 1226 (11th
Cir. 2005). “‘A determination as to whether rare and exceptional circumstances
5
We review de novo the district court’s decision to deny equitable tolling. Drew v. Dep’t
of Corr., 297 F.3d 1278, 1283 (11th Cir. 2002). However, we review a district court’s
determination of the relevant facts for clear error. Id.
7
are presented requires the examination of the facts in each case.’” Spottsville v.
Terry, 476 F.3d 1241, 1245 (11th Cir. 2007) (quoting Arthur v. Allen, 452 F.3d
1234, 1253 (11th Cir. 2006)). The petitioner bears the burden of showing that
equitable tolling is warranted. Id.
Hollinger argues that the state court’s 8-month delay in notifying him of the
May 17, 2005, order (denying his Rule 3.850 motion) constitutes extraordinary
circumstances sufficient to justify equitable tolling. This lengthy delay may
provide a basis for equitable tolling “if the petitioner has diligently attempted to
ascertain the status of that order and if the delay prevented the inmate from filing a
timely federal habeas corpus petition.” Drew, 297 F.3d at 1288 (stating that “[a]
lengthy delay between the issuance of a necessary order and an inmate’s receipt of
it might provide a basis for equitable tolling if the petitioner has diligently
attempted to ascertain the status of that order and if the delay prevented the inmate
from filing a timely federal habeas corpus petition” (emphasis added)).6
Here, the district court did not make an explicit finding about Hollinger’s
diligence. The district court noted that Hollinger contacted the state court about his
6
In Drew, this Court affirmed the district court’s denial of equitable tolling to a petitioner
who claimed that he did not receive a copy of the district court’s order dismissing his initial §
2254 petition without prejudice until a year-and-a-half after it was issued. Drew, 297 F.3d at
1286–91. The Court’s review was focused on whether the district court’s fact finding that the
petitioner did not act diligently was clear error. See id. at 1287 (“The record before this court
does not support a determination that the magistrate judge or the district court clearly erred in
finding Drew dilatory.”). Because the district court did not make a fact finding as to whether
Hollinger was diligent, we do not find Drew instructive here.
8
post-conviction motion earlier than other petitioners who benefited from equitable
tolling but that Hollinger waited two months to file his motion for a belated 3.850
appeal. Instead of resolving the diligence question, the district court focused on
whether the state court’s delay prevented Hollinger from timely filing his federal
habeas petition under AEDPA. The district court found that Hollinger had not
shown a causal connection between the state court’s delay and “his ability to
timely file the instant habeas petition.” Dist. Ct. Order at 6 (emphasis added). The
district court focused solely on the undisputed fact that, when Hollinger received
the February 1, 2006, notification of the order, “twelve days remained in which
Petitioner could have timely filed the instant habeas petition.” Id. (emphasis
added).
Before discussing Hollinger’s claims, we review our precedent in Knight v.
Schofield, 292 F.3d 709 (11th Cir. 2002), because it is the closest case we can find
on point. In Knight, we reversed the district court’s denial of equitable tolling
where the Georgia Supreme Court failed to notify the petitioner that it had denied
his application for discretionary review of his state habeas petition. 292 F.3d at
711–12. When the petitioner filed his application for discretionary review, he
asked the clerk of the Georgia Supreme Court when he could expect a ruling. Id. at
710. The clerk assured him that he “would be notified as soon as a decision was
issued.” Id. This is not surprising as courts routinely send copies of rulings to the
9
parties in the case. On September 9, 1996, the Georgia Supreme court denied
petitioner Knight’s application. Id. However, the clerk inadvertently sent notice of
the Georgia Supreme Court’s September 9, 1996, denial of the petitioner’s
application to the wrong person. Id. And Knight waited until January 16, 1998,
before inquiring about the status of his application. Id. On March 4, 1998, nearly
two months later, the Georgia Supreme Court advised Knight that his application
had been denied 18 months earlier on September 9, 1996. Id. On August 14,
1998, five months later, Knight filed his § 2254 petition. Id.
In reversing the district court’s denial of equitable tolling, this Court noted
that “[u]ntil the clerk responded, Knight had no way of knowing that his state
remedies had been exhausted.” Id. at 711. Because “[t]he law is clear that he
could not file a federal motion until his pending state application was denied,” the
Court concluded that the petitioner Knight “had every reason to delay” in filing his
§ 2254 petition “until he knew that state relief had been denied.” Id.
In light of Knight, there are several problems with the district court’s
analysis. First, assuming Hollinger’s allegations are true, as the district court did,
the state court’s 8-month delay in providing Hollinger notice of its denial of his
Rule 3.850 motion eroded nearly two-thirds of Hollinger’s one-year limitations
period and left Hollinger only 12 days on his AEDPA clock. Contrary to what the
district court said, Hollinger could not go to federal court immediately to file his
10
§ 2254 petition after receiving the Rule 3.850 court’s order because he first had to
pursue a belated Rule 3.850 appeal in order to exhaust state remedies. Knight, 292
F.3d at 711 (“The law is clear that [the petitioner] could not file a federal motion
until his pending state application was denied. 28 U.S.C. § 2254(b)–(c).
Therefore, he had every reason to delay such filing until he knew that state relief
had been denied.”).
Furthermore, due to the 8-month delay in receiving the Rule 3.850 court’s
order, Hollinger was left with only 12 days to (1) review the Rule 3.850 court’s
order, (2) prepare and file a motion explaining the need for a belated Rule 3.850
appeal, (3) prepare and file his Rule 3.850 appellate brief, (4) obtain a ruling on his
Rule 3.850 appeal, and (5) prepare and file his § 2254 petition. Upon learning of
the May 17, 2005, order on February 1, 2006, Hollinger lacked the usual 30 days to
prepare and file a Rule 3.850 appeal, much less enough time to obtain a ruling
from the state appellate court within such a truncated time period. Thus, the state
court’s 8-month delay effectively prevented Hollinger from timely filing his §
2254 petition. The district court erred in concluding there was no causal
connection between the 8-month delay and Hollinger’s untimely § 2254 petition.7
7
As in Knight, we do not rule that every delay in filing will warrant equitable tolling. See
Knight, 292 F.3d at 711 (noting that “not in every case will a prisoner be entitled to equitable
tolling until he receives notice. Each case turns on its own facts.”). We say only that equitable
tolling may be proper here where the 8-month delay in notifying Hollinger of the Rule 3.850 trial
court’s ruling left him only 12 days to file his § 2254 petition. This is not a case where the state
appellate court had affirmed the state trial court’s denial of a 3.850 motion and all the petitioner
had left to do was file a § 2254 petition. Here, the notification delay involved a trial level 3.850
11
The question, however, remains whether Hollinger acted diligently.
Hollinger emphasizes that he acted diligently because: (1) he inquired about the
status of his Rule 3.850 motion much sooner than the petitioner in Knight; (2) he
has an I.Q. of 76 to 80 and functions on a fifth-grade level; (3) he is entirely
dependent on inmate law clerks’ assistance (and thus their schedules); (4) he filed
his motion for a belated appeal approximately two months after he learned of the
Rule 3.850 court’s order; and (5) he needed the mail room log showing that he had
not received any legal mail between May 17, 2005, and February 1, 2006, before
he could file his motion for a belated 3.850 appeal, which the state court granted.
We express no opinion as to whether Hollinger acted diligently and leave this to
the district court to address in the first instance after both sides have an adequate
opportunity to present their arguments. See Drew, 297 F.3d at 1287 (stating that
“the determination of whether a party was diligent is a finding of fact, subject to
review for clear error”); see also Downs, 520 F.3d at 1323 (“We have held on
previous occasions that ‘[d]ue diligence . . . does not require a prisoner to
undertake repeated exercises in futility or to exhaust every imaginable option, but
rather to make reasonable efforts.’” (quoting Aron v. United States, 291 F.3d 708,
712 (11th Cir. 2002))); Knight, 292 F.3d at 711 (concluding that a “pro se
imprisoned defendant . . . exercised diligence in inquiring about” his state habeas
ruling that the petitioner still had to exhaust through the state appellate system before he could
file his § 2254 petition.
12
petition that had been denied eighteen months earlier, even though he waited five
months after being notified to file his § 2254 petition).
III. CONCLUSION
In sum, we conclude that the district court clearly erred in finding that
Hollinger failed to show a causal connection between the Rule 3.850 court’s delay
in providing Hollinger a copy of its order and Hollinger’s untimely filing of his
§ 2254 petition. Because this was the district court’s only fact finding, we vacate
and remand for the district court to reconsider Hollinger’s equitable tolling
argument in light of this order and to make other necessary factual findings,
including, but not limited to, when Hollinger first received notice of the Rule 3.850
court’s May 17, 2005 order and whether Hollinger acted diligently.
VACATED AND REMANDED.
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