United States District Court, N.D. Alabama, Northeastern Division
MADELINE HUGHES HAIKALA, UNITED STATES DISTRICT JUDGE
habeas action, Mr. Patterson seeks relief from his state
court conviction for attempted murder. On April 25, 2019, the
magistrate judge filed a report in which he recommended that
the Court dismiss Mr. Patterson's § 2254 petition as
untimely under AEDPA. (Doc. 12). On May 20, 2019, Mr.
Patterson filed objections to the report and recommendation.
(Doc. 15). Mr. Patterson argues that the Court should not
dismiss his petition as untimely because he is entitled to
equitable tolling. (Doc. 15).
district court “may accept, reject, or modify, in whole
or part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C). When
a party objects to a report and recommendation, the district
court must “make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C). The district court also reviews
propositions of law de novo. Garvey v.
Vaughn, 993 F.2d 776, 779 n.9 (11th Cir. 1993); see
also Macort v. Prem, Inc., 208 Fed.Appx. 781, 784 (11th
Patterson correctly points out that “the AEDPA
‘statute of limitations defense ... is not
‘jurisdictional'' and does not set forth
“an inflexible rule requiring dismissal whenever”
its “clock has run.” Holland v. Florida,
560 U.S. 631, 645 (2010) (citing Day v. McDonough,
547 U.S. 198, 203, 205 (2006)). In Holland, the
Supreme Court stated:
We have previously made clear that a nonjurisdictional
federal statute of limitations is normally subject to a
“rebuttable presumption” in favor
“of equitable tolling.” Irwin, 498 U.S.,
at 95-96, 111 S.Ct. 453; see also Young v. United
States, 535 U.S. 43, 49, 122 S.Ct. 1036, 152 L.Ed.2d 79
(2002) (“It is hornbook law that limitations periods
are ‘customarily subject to “equitable
tolling”'” (quoting Irwin, supra, at
95, 111 S.Ct. 453)). In the case of AEDPA, the
presumption's strength is reinforced by the fact that
“‘equitable principles'” have
traditionally “‘governed'” the
substantive law of habeas corpus, Munaf v. Geren,
553 U.S. 674, 693, 128 S.Ct. 2207, 171 L.Ed.2d 1 (2008), for
we will “not construe a statute to displace courts'
traditional equitable authority absent the ‘clearest
command, '” Miller v. French, 530 U.S.
327, 340, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000) (quoting
Califano v. Yamasaki, 442 U.S. 682, 705, 99 S.Ct.
2545, 61 L.Ed.2d 176 (1979)). The presumption's strength
is yet further reinforced by the fact that Congress enacted
AEDPA after this Court decided Irwin and therefore
was likely aware that courts, when interpreting AEDPA's
timing provisions, would apply the presumption. See,
e.g., Merck & Co. v. Reynolds, 559 U.S.
633, 648, 130 S.Ct. 1784, 1795 - 1796 (2010).
560 U.S. at 645-46. To be entitled to equitable tolling, Mr.
Patterson must show “‘(1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way' and
prevented timely filing.” Holland, 560 U.S. at
649 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)). Mr. Patterson bears the burden of proving that he is
entitled to equitable tolling. San Martin v. McNeil,
633 F.3d 1257, 1268 (11th Cir. 2011); Chavez v. Secy.
Fla. Dept. of Corr., 647 F.3d 1057, 1072 (11th Cir.
Patterson asserts that after his conviction in 2013, he
retained his trial counsel, Tim Case, for an appeal. (Doc.
15, p. 3). After the Alabama Supreme Court denied his
petition for a writ of certiorari in May 2015, Mr. Patterson
paid Mr. Case $10, 000.00 to continue to represent him. (Doc.
15, p. 3). Mr. Patterson asserts that he “stayed in
regular contact with attorney Case as to the status of the
appeals.” (Doc. 15, p. 3). Throughout, Mr. Patterson
was in jail. (Doc. 15, p. 1).
Patterson contends that as time passed, Mr. Case gave him
“several reasons” why there had been no further
action in his appellate process. (Doc. 15, p. 3). On December
7, 2016, Mr. Case wrote Mr. Patterson a letter noting that he
and another attorney had recently met with Mr. Patterson at
Easterling Correctional Facility and explained to Mr.
Patterson the status of his case and what services they were
to render. (Doc. 15, p. 11). Mr. Case, in fact, took no other
action “in the appellate process.” (Doc. 15, p.
September 25, 2017, in a letter addressed to Mr. Patterson
and Wilma Bradford, Mr. Case stated that Mr. Patterson had
exhausted his state court appeal remedies, but Mr. Case was
pursuing a Rule 32 petition for Mr. Patterson based on
jurisdictional grounds and/or new evidence. (Doc. 15, p. 12).
Mr. Case asked Ms. Bradford to contact his office to discuss
the matter further. (Doc. 15, p. 12). Mr. Patterson correctly
points out that when Mr. Case wrote this letter, it was too
late for him to file a Rule 32 petition on behalf of Mr.
Patterson. (Doc. 15, p. 4).
Patterson asserts that “after further conversation(s)
and inquiry(s) by Patterson as to the status of any Rule 32
petition, ” he insisted Mr. Case return the $10, 000.00
fee he paid Mr. Case in 2015. (Doc. 15, p. 4). On July 20,
2018, Mr. Case issued a $10, 000.00 check to Wilma Bradford.
(Doc. 15, p. 13). Thereafter, Mr. Patterson began preparing a
Rule 32 petition. He filed the petition in the Lawrence
County Circuit Court on September 17, 2018. (Doc. 15, pp. 2,
4). Mr. Patterson then filed his federal § 2254 petition
in this Court on December 10, 2018. (Doc. 1, p. 18).
Patterson argues that he should not be faulted for failing to
act on his own behalf between May 2015 (when the Alabama
Supreme Court denied his petition for writ of certiorari) and
December 2018 (when he filed this § 2254 habeas
petition) because he had “every reasonable
expectation” and “every reason to believe”
that Mr. Case was pursuing his post-conviction claims, when
Mr. Case had, in fact, effectively abandoned him “for a
period of approximately three (3) years.” (Doc. 15, pp.
5- 6). Mr. Patterson explains that he was “unfamiliar
and unaware of the time limitations involved, and not
knowledgeable as to the law, trusted his attorney.”
(Doc. 15, p. 5). Mr. Patterson contends that his attorney,
Mr. Case, intentionally misled him, particularly with respect
to his (the attorney's) efforts to pursue a Rule 32
petition on Mr. Patterson's behalf. (Doc. 15, pp. 5, 7).
agency principles, a party typically is bound by the acts of
his lawyer, such that attorney filing errors and other
negligence on the lawyer's part in post-conviction
proceedings generally cannot constitute “cause”
to excuse a procedural default. See Maples v.
Thomas, 565 U.S. 266, 280-81 (2012). Rather, a
petitioner must show that his attorney's conduct rises to
the level of abandonment. Maples, 565 U.S. at
Patterson relies on Mackey v. Hoffman and Maples
v. Thomas to support his contention that he is entitled
to equitable tolling because Mr. Case effectively abandoned
him. Mackey, 682 F.3d 1247 (9th Cir. 2012);
Maples, 565 U.S. at 266. In Mackey, the
Ninth Circuit Court of Appeals held that Mr. Mackey's
attorney, who failed to notify the federal district court of
his intention to withdraw, “inexcusably and grossly
neglected” his obligation to his client. 682 F.3d at
1253. The attorney's failure to notify the court of his
intent to withdraw left Mr. Mackey without information about
court proceedings because Mr. Mackey could not personally
receive court notifications while he was represented by
counsel. Consequently, Mr. Mackey, an indigent prisoner
seeking relief from his state court conviction and sentence,
was “misled by his attorney to believe that he was
awaiting a trial or hearing date and believed that his
attorney was continuing to represent him, [and] was wholly
unaware that the district court had denied his §
2254 petition.” 682 F.3d at 1253. The Court of
Appeals held that Mr. Mackey's attorney's conduct
“amount[ed] to attorney abandonment in every meaningful
sense . . .” 682 F.3d at 1253.
Maples, the Supreme Court held that Mr. Maples's
attorneys abandoned him when the attorneys left the firm that
represented Mr. Maples. No one notified Mr. Maples, and under
Alabama law, he had no right to receive notice of filings and
orders personally because he was represented by counsel. 565
U.S. at 283-89; 565 U.S. at 284 (“By failing to seek
permission to withdraw, Munanka and Ingen-Housz allowed the
court's records to convey that they represented Maples.
As listed attorneys of record, they, not Maples, would be the
addressees of court orders Alabama law requires the clerk to
furnish.”). Under these circumstances, the
principal-agent relationship was severed, and the
attorneys' acts or omissions could not be attributed to
Mr. Maples, given that Mr. Maples had no reason to know that
his attorneys of record were not, in fact, representing him.
Maples, 565 U.S. at 283-89. Mr. Maples had
“[no] warning that he had better fend for
himself.” 565 U.S. at 288. The Supreme Court concluded:
“Given no reason to suspect that he lacked counsel able
and willing to represent him, Maples ...