Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 3:03-cv-00397-TJC-JRK.
For Floyd Damren, Petitioner - Appellant: John Stewart Mills, Courtney Rebecca Brewer, Andrew David Manko, The Mills Firm, Tallahassee, FL.
For State of Florida, Attorney General, State of Florida, Respondents - Appellees: Charmaine Mary Millsaps, Stephen Richard White, Office of the Attorney General, Tallahassee, FL.
Before ED CARNES, Chief Judge, and TJOFLAT and HULL, Circuit Judges.
Floyd Damren, a Florida capital inmate, appeals the dismissal of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The District Court found that his petition was not filed within the one-year limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA" ). Damren argues that the District Court erred in failing to find the limitations period equitably tolled because his untimely filing was due to his attorney's failure to ascertain the deadline by which his petition was due. We disagree. Equitable tolling is appropriate only where, despite diligent pursuit of his rights, some extraordinary circumstance prevents a petitioner from timely filing his petition. Because Damren's attorney's negligence is not so extraordinary as to merit equitable tolling, we affirm the District Court's judgment.
One evening in May 1994, Don Miller made the mistake of interrupting Damren and an accomplice, Jeff Chittam, while they were burglarizing Miller's place of work. Damren managed to sneak up behind Miller and beat him to death with a metal pipe. Damren was thereafter apprehended and indicted for first-degree murder, armed burglary, and aggravated
assault. A jury convicted him on all counts and unanimously recommended the imposition of a death sentence for the murder. The court followed the jury's recommendation and sentenced Damren to death. Damren v. State, 696 So.2d 709, 710-11 (Fla. 1997) (detailing the facts of the crime, trial, and capital sentencing proceedings).
The Supreme Court of Florida affirmed Damren's conviction and sentence on direct review, id., and the United States Supreme Court subsequently denied Damren's petition for a writ of certiorari on January 12, 1998, Damren v. Florida, 522 U.S. 1054, 118 S.Ct. 706, 139 L.Ed.2d 648 (1998). At that time, his convictions became final. See Clay v. United States, 537 U.S. 522, 527, 123 S.Ct. 1072, 1076, 155 L.Ed.2d 88 (2003). This left Damren one year within which to file a federal habeas corpus petition. See 28 U.S.C. § 2244(d)(1) (imposing a one-year limitation period on state prisoners who wish to file a federal habeas corpus petition and specifying that the period starts running, relevantly, on the date on which the state court judgment becomes final).
On November 9, 1998, three hundred days into the limitations period, Damren, through court-appointed postconviction counsel, Jeffrey Morrow, moved the trial court to vacate his conviction and sentence pursuant to Rule 3.851 of the Florida Rules of Criminal Procedure. This stopped the § 2244(d)(1) limitations-period clock. See 28 U.S.C. § 2244(d)(2) (providing that the limitations period does not run during the pendency of a properly filed motion for state postconviction review). The trial court conducted an evidentiary hearing on Damren's claims on April 10, 2001, and denied his Rule 3.851 motion on June 20, 2001. Damren appealed the decision to the Supreme Court of Florida and also petitioned that court for a writ of habeas corpus. On January 23, 2003, the Supreme Court of Florida affirmed the trial court's decision and denied his petition for a writ of habeas corpus. With the issuance of the mandate on February 24, 2003, that decision became final, and the one-year limitations period began running again. Damren's federal habeas petition thus had to be filed within sixty-five days, by April 30, 2003.
Although he had experience handling capital cases in the Florida courts, Morrow was not familiar with federal district court practice and had never handled a federal habeas petition. As Damren's Rule 3.851 proceedings drew to a close, Morrow met with Damren and explained that he was willing to continue representing Damren and petition the federal district court for a writ of habeas corpus. As he was unfamiliar with the rules and procedures in that court, however, Morrow told Damren ...