United States District Court, M.D. Alabama, Southern Division
ROBERT A. SIMMONS, #282973, Petitioner,
STATE OF ALABAMA, et al., Respondents.
MEMORANDUM OPINION AND ORDER
C. MARKS CHIEF UNITED STATES DISTRICT JUDGE.
January 16, 2019, the Magistrate Judge entered a
Recommendation denying the Petitioner's petition for writ
of habeas corpus (doc. 21). On February 19, 2019, the
Petitioner filed objections to the Recommendation. (Doc. 26).
The Court has carefully reviewed the record in this case, the
Recommendation of the Magistrate Judge, and the
Petitioner's objections. For the reasons that follow, the
Court concludes that the Petitioner's objections are due
to be overruled, the Recommendation of the Magistrate Judge
is due to be adopted, and the petition for writ of habeas
corpus is due to be denied.
Petitioner filed this petition for writ of habeas corpus
relief on June 28, 2016. It is undisputed that 28 U.S.C.
§ 2244(d) of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”) provides a one year
limitation period for filing a federal habeas petition.
Simmons concedes that his § 2254 petition was filed
beyond the one-year limitation period. (Doc. 12 at 1-2).
However, Simmons asserts that he is entitled to equitable
tolling of the federal limitation period because his
appellate counsel abandoned him by failing to appeal to the
Alabama Supreme Court, and his Rule 32 attorney unreasonably
delayed filing his Rule 32 petition. (Id.).
circumstances, the federal limitation period may be equitably
tolled on grounds apart from those specified in the habeas
statute where a petitioner “shows ‘(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). See also Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005); San Martin v.
McNeil, 633 F.3d 1257, 1267 (11th Cir. 1999).
on affidavits from his sisters, Simmons argues that he was
‘abandoned' by appellate counsel. However, the
Magistrate Judge correctly found that Simmons and his sisters
were advised that appellate counsel would not pursue a
petition for writ of certiorari in the Alabama Supreme Court.
Simmons and his sisters were also advised of the deadline for
filing a Rule 32 petition and were “advised not to wait
too long.” (Docs. 21 at 7, n.3; 12-1 at 1; 12-2 at 1).
Clearly, Simmons was not abandoned by his appellate attorney
but rather advised to obtain new counsel or file a Rule 32
petition pro se. Simmons has not established that his
appellate abandoned him. Simmons has presented
nothing to the court which demonstrates attorney abandonment
which is necessary to show the extraordinary circumstances
warranting equitable tolling of the limitation period.
Because Simmons was not abandoned by appellate counsel, he is
not entitled to equitable tolling on that basis.
retained new counsel within 90 days of the date that his
conviction became final, well within the one year limitation
period. Simmons argues, however, that his Rule 32
attorney's unreasonable delay in filing his Rule 32
petition constitutes extraordinary circumstances warranting
equitable tolling. “The burden of proving circumstances
that justify application of the equitable tolling doctrine
rests squarely on the petitioner.” San Martin,
633 F.3d at 1268; Helton v. Sec'y for the Dept. of
Corr., 259 F.3d 1310, 1313-1314 (11th Cir. 2001).
Simmons cannot meet his burden. Simmons retained new counsel
on June 11, 2013 to file a Rule 32 petition on his behalf.
(Docs. 12-1 at 1 and 12-2 at 1). Counsel filed Simmons'
Rule 32 petition on March 14, 2014, nearly nine months later.
to Simmons, his attorney's delay in filing his Rule 32
petition was either negligent or lazy. (Doc. 26 at 5-6). On
many occasions, the Eleventh Circuit has explained that
“[m]ere attorney negligence [will] not justify
equitable tolling.” Steed v. Head, 219 F.3d
1298, 1300 (11th Cir. 2000); Sandvik v. United
States, 177 F.3d 1269, 1270 (11th Cir. 1999). Thus, when
an attorney miscalculates a deadline, fails to adequately
raise a potentially meritorious claim, or otherwise makes a
run-of-the-mill mistake, such circumstances are plainly
insufficient to warrant equitable tolling. See, e.g.,
Steed, 219 F.3d at 1300. Moreover, negligence and gross
negligence in and of themselves are not sufficiently
extraordinary circumstance to warrant equitable tolling. An
attorney “is not deemed to have acted adversely to his
principal's interests simply because he blundered and
made an unwise, negligent, or grossly negligent mistake that
harmed those interests.” Cadet v. Fla. Dep't of
Corr., 853 F.3d 1216, 1229 (11th Cir. 2017), cert.
denied, 138 S.Ct. 1042, 200 L.Ed.2d 259 (2018).
circumstances alleged by Simmons fall far short of evidencing
either egregious misconduct by counsel, reasonable diligence
by Simmons, or circumstances beyond Simmons' control. At
most, Simmons alleges that he relied on counsel to file his
Rule 32 motion, and counsel failed to file the motion
quickly.There is no suggestion that counsel refused
to communicate with Simmons about the status of the case,
made knowing or reckless factual misrepresentations,
repeatedly deceived Simmons, or worked against Simmons'
interests. Allegations establishing only lawyer negligence -
in the absence of any indication of bad faith or dishonesty -
do not rise to the level of egregious attorney misconduct for
purposes of applying equitable tolling.
Simmons has argued that he is entitled to equitable tolling
due to the delay in filing his Rule 32 petition, Simmons does
not address a more fundamental problem with his habeas
petition. He offers no explanation as to why his habeas
petition was filed almost a year beyond the date his Rule 32
petition became final. Simmons filed his Rule 32 petition on
March 14, 2014. His petition was denied by the trial court,
and the Alabama Court of Criminal Appeals affirmed the
denial. After a petition for rehearing was denied, Simmons
filed a petition for writ of certiorari in the Alabama
Supreme Court, which denied the petition. The Alabama Supreme
Court issued the certificate of judgment on June 26, 2015.
Simmons filed this § 2254 petition on June 28, 2016,
more than a year after the certificate of judgment was
entered and 362 days after the limitation period had expired.
Simmons has failed to demonstrate why any delay in the filing
of his Rule 32 petition in state court thereafter prevented
him from filing his federal habeas petition in a timely
manner. Simmons offers no explanation as to how the delay in
filing his Rule 32 petition then prevented him from filing
his federal petition for almost a year.
also argues that he is entitled to an evidentiary hearing to
establish equitable tolling. “Section 2244 does not
require a hearing on the issue of time-bar or equitable
tolling, so the decision as to whether to conduct an
evidentiary inquiry is a matter left to the sound discretion
of the district court.” San Martin, 633 F.3d
at 1271. Because Simmons' habeas petition is clearly
time-barred, the Court concludes that under the circumstances
of this case, an evidentiary hearing is unnecessary.
and perhaps most importantly, counsel's filing of
Simmons' § 2254 habeas petition was not a necessary,
legal requirement. Simmons could have filed his § 2254
petition pro se, and counsel could have filed a
notice of appearance after Simmons timely filed his §
2254 petition. Consequently, counsel's failure to file
Simmons' § 2254 petition does not constitute a real
impediment to Simmons. In short, Simmons fails to show due
diligence on his part or that the circumstances that led to
the late filing of his § 2254 petition were such that he
was unable to control them. Thus, this court concludes that
Simmons is not entitled to equitable tolling of the
limitation period on the basis of delays caused by his
appellate or Rule 32 counsel.
court concludes that Simmons has failed to demonstrate the
existence of extraordinary circumstances beyond his control
that prevented him from filing a timely § 2254 habeas
petition, nor has he met the heavy burden of showing that he
exercised reasonable diligence in prosecuting his claim and
in bringing forth his habeas petition necessary to toll the
statute. See Sandvik, 177 F.3d at 1271. Under the
circumstances of this case, the one-year period of limitation
contained in 28 U.S.C. § 2244(d)(1) clearly expired
before Simmons filed the instant § 2254 petition.
tolling due to his attorney's delay in filing his Rule 32
upon an independent review of the file in this case and for
good cause, it is ORDERED that the Petitioner's
objections be and are hereby OVERRULED, the Recommendation of
the Magistrate Judge be and is hereby ADOPTED, the petition
for writ of habeas corpus filed by Simmons on June 28, 2016,