United States District Court, N.D. Alabama, Northwestern Division
ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE
29, 2018, the magistrate judge entered a report and
recommendation, (“R&R”), recommending that
the petition for writ of habeas corpus be dismissed with
prejudice as time-barred. (Doc. 12). Petitioner Tony Randall
Woods (“Woods”) has timely objected to the
R&R. (Doc. 15). The court has considered the entire file
in this action, together with the report and recommendation,
and has reached an independent conclusion that the report and
recommendation is due to be adopted and approved.
does not contest that his petition was not filed within the
one-year statute of limitations established by 28 U.S.C.
§ 2244(d)(2). Instead, the thrust of his objection is
that his attorney effectively abandoned him in filing his
Rule 32 petition after the habeas limitations period expired,
so he ought to be entitled to equitable tolling of the
limitations period. (See doc. 15). Woods contends
the magistrate judge “mentioned, but failed to rule on
counsel's abandonment.” (Id. at 3).
magistrate judge stated, equitable tolling is an
extraordinary remedy which “is typically applied
sparingly.” Arthur v. Allen, 452 F.3d 1234,
1252 (11th Cir. 2006). To be eligible for equitable tolling,
a petitioner must demonstrate both that (1) he has
been diligent in his efforts to timely file a habeas petition
and (2) extraordinary and unavoidable circumstances
beyond the petitioner's control prevented him from filing
a timely petition. Id. Abandonment by an attorney
can establish extraordinary circumstances, but
“‘a garden variety claim' of attorney
negligence” does not warrant equitable tolling.
Holland v. Fla., 560 U.S. 631, 651 (2010).
magistrate judge correctly determined that Woods has not
demonstrated his diligence or extraordinary circumstances.
Woods filed his Rule 32 petition after the one-year habeas
limitations period expired, which means that the habeas
limitations period was not statutorily tolled during the Rule
32 petition's pendency. Woods states that this was
because his retained counsel abandoned him by failing to
timely file the Rule 32 petition. Woods indicates that he
sent several letters to his counsel inquiring about the
status of the Rule 32 petition, and his counsel assured him
that “all had been taken care of and that there was no
need to worry.” (Doc. 10 at 2). However, as the
magistrate judge found, Woods did not include any specific
information in his petition or traverse to inform the court
when he wrote those letters. (Doc. 12 at 4). Because Woods
bears the burden to establish the elements necessary for
equitable tolling, Holland, 560 U.S. at 655, it
follows that he must establish that his attorney's
conduct was more than simply negligent, but actually
constituted abandonment. Woods has stated only that he made
inquiries to his counsel, which could have occurred at any
point during the ten months that elapsed between Woods hiring
counsel and the expiration of the habeas limitations period.
Because Woods's petition does not contain facts to
support abandonment by his attorney, the magistrate judge did
not err in concluding Woods had not established extraordinary
circumstances justifying equitable tolling.
as the magistrate judge noted, Woods has fallen short in
showing the diligence necessary for equitable tolling. Beyond
sending letters to his counsel, Woods does not allege he did
anything to determine that his Rule 32 petition was timely
filed such that it would toll the habeas limitations period.
Nor does Woods explain in his petition or traverse why he
waited eight months after the certificate of judgment issued
on his Rule 32 petition to file this habeas petition. Woods
should have known at the time the certificate of judgment
issued that the limitations period had either expired or was
about to expire, and he does not detail any steps he took to
ensure that his habeas petition was timely (or at least less
untimely) filed. Regardless of whether Woods's Rule 32
counsel's conduct creates the extraordinary circumstances
to support equitable tolling, Woods's failure to account
for his actions during this eight-month period forecloses a
finding that he was diligent in pursuing his rights. Because
he has does not address this at all in his objections, Woods
has failed to show that the magistrate erred in determining
Woods is ineligible for equitable tolling due to his lack of
the court hereby adopts and approves the findings and
recommendation of the magistrate judge as the findings and
conclusions of this court. The petition for writ of habeas
corpus is due to be DISMISSED WITH PREJUDICE. A separate
Order will be entered.
Court may issue a certificate of appealability “only if
the applicant has a made a substantial showing of the denial
of a constitutional right.” 28 U.S.C. 2253(c)(2). To
make such a showing, a “petitioner must demonstrate
that reasonable jurists would find the district court's
assessment of the constitutional claims debatable or wrong,
” Slack v. McDaniel, 529 U.S. 473, 484 (2000),
or that “the issues presented were adequate to deserve
encouragement to proceed further, ” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal quotations
omitted). This Court finds Petitioner's claims do not
satisfy either standard.