Drew v. Department of Corrections, (11th Cir. 2002)
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UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 99-4176
D. C. Docket No. 97-08794 CV-WDF
SCOTT LEIGH DREW,
Petitioner-Appellant,
versus
DEPARTMENT OF CORRECTIONS,
MICHAEL W. MOORE,
Respondents-Appellees.
Appeal from the United States District Court
for the Southern District of Florida
(July 18, 2002)
Before BARKETT and MARCUS, Circuit Judges, and O'KELLEY (1), District Judge.
MARCUS, Circuit Judge:
Petitioner Scott Leigh Drew, a Florida inmate, appeals a decision of the
district court dismissing as time-barred his petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Drew argues first that his petition was not time-barred under the one-year statute of limitations established by the Antiterrorism
and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110
Stat. 1214 (1996), 28 U.S.C. § 2241, et seq., because the statutory period should
have been tolled during the pendency of his third motion for post-conviction relief
in the state court. In the alternative, he asserts that any time bar should have been
disregarded under the doctrine of equitable tolling. We are persuaded by neither
argument and accordingly we affirm the judgment of the district court.
I.
A detailed statement of the complex procedural history of this case is
essential to its resolution. On September 29, 1987, a jury in Palm Beach County
convicted Drew of first degree felony murder and armed burglary stemming from
the shooting death of his ex-wife six days after their divorce became final in
September 1986. Following the conviction, Drew was sentenced to life
imprisonment for the murder conviction as well as a concurrent term of twenty
years for the burglary. Alleging that the trial court erred in excluding important
psychiatric testimony, Drew appealed his conviction. The Fourth District Court of
Appeal rejected his claim and affirmed the conviction on October 11, 1989. See
Drew v. State, 551 So. 2d 563 (Fla. Dist. Ct. App. 1989).
With his direct appeal complete, Drew embarked on an effort to obtain
collateral relief that has lasted for more than a decade. On March 28, 1990, he
filed his first motion for post-conviction relief under Rule 3.850 of the Florida
Rules of Criminal Procedure. The motion raised only one issue, namely that Drew
was deprived of an impartial jury drawn from a cross-section of the community.
The trial court and the Fourth District both denied relief.
After the first motion was denied, Drew filed a second motion under Rule
3.850 on October 14, 1992. This time, he raised five issues, including three claims
about the use of a taped confession as well as claims of prosecutorial misconduct
and ineffective assistance of counsel. The trial court immediately rejected the
motion as unclear, unspecific, and convoluted, and the Fourth District affirmed
again on January 6, 1993. Next, on August 6, 1993, Drew filed a state court
petition for a writ of habeas corpus on the ground that his appellate counsel had
performed ineffectively. The Fourth District denied the petition on September 1,
1993.
Drew then brought his post-conviction challenge to federal court for the
first time, filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
on September 16, 1994. The petition raised the five issues presented previously in
the second Rule 3.850 motion, as well as the claim of ineffective assistance of
appellate counsel and a new allegation that the jury before which he was tried did
not represent a fair cross-section of the community. The magistrate judge
recommended that the case be dismissed as unexhausted because six of the seven
claims had not been adequately presented to the state court. Although the
magistrate judge recognized that these claims could possibly be considered
procedurally barred from federal habeas review due to Drew's failure to raise them
in his first post-conviction challenge, she recommended dismissal without
prejudice after the state itself suggested that such a remedy was appropriate. The
magistrate judge did note, however, that the claims might in fact be time-barred:
"Although a Rule 3.850 motion may now be time barred, under the unusual
circumstances of this case the State courts might not apply their procedural bar."
The district court adopted the magistrate judge's Report and Recommendation and
dismissed Drew's petition without prejudice in an order on March 28, 1995.
What happened next is relevant to the equitable tolling claim in this case.
Drew asserts that he did not receive a copy of the district court's dismissal order
until February 20, 1996, almost a year after it was issued. He says that he sent
various letters to the Clerk of the Court for the Southern District of Florida
inquiring about the status of his petition, but that he received no response. Finally,
on January 24, 1996, the Clerk's office sent Drew a docket report indicating that
the petition had been dismissed in March 1995. In response, Drew states that he
again sent letters to the Clerk asking for a copy of the order, but he claims that his
letters were ignored. Eventually, Drew wrote directly to Judge King, the district
court judge, who sent a copy of the order on February 20, 1996.
Drew alleges that he began working on a third Rule 3.850 motion as soon as
he received the district court order dismissing his habeas petition and calling for
state court exhaustion. After sending a draft to his aunt in Texas for typing and
organization, Drew filed his third motion on April 23, 1996. The motion raised
the five contentions included in the previous 3.850 motion. The state argued that
the claims were procedurally barred because the motion was untimely under the
two-year statute of limitations prescribed by Rule 3.850(b) and because the motion
was successive under Rule 3.850(f). On August 25, 1996, the trial judge rejected
the motion for the reasons set forth in the state's brief. The Fourth District
affirmed the denial on July 18, 1997.
On October 9, 1997, Drew filed the instant petition, which raised the same
seven claims presented in his first federal habeas effort. On December 23, 1998,
the magistrate judge recommended that the petition be dismissed as untimely
under the AEDPA's one-year statute of limitations. While it was clear that the
petition was not filed before the April 23, 1997 deadline that applied to all
individuals convicted before April 24, 1996, see Hurley v. Moore, 233 F.3d 1295,
1296 (11th Cir. 2000), the court confronted the question of whether the limitations
period should have been tolled for the period during which the third 3.850 motion
was pending in the state court. As the federal habeas corpus statute explains, the
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). The magistrate judge held
that tolling was not in order because Drew's state court motion had not been
"properly filed" since it was deemed procedurally barred as untimely and
successive under Florida law. The Report and Recommendation went on to
explain that, in some cases, a petitioner in Drew's situation might be entitled to
equitable tolling of the statute of limitations since the first petition was expressly
dismissed without prejudice with instructions to exhaust in state court. However,
the magistrate judge stated that such equitable relief was not appropriate in this
case since Drew had allowed more than a year to elapse after the issuance of the
district court's dismissal order before he filed his third 3.850 motion. The Report
and Recommendation noted that excusing Drew's delay would contravene the
AEDPA's goal of "curtailing just such dilatory practices."
Drew objected to the magistrate judge's Report and Recommendation on
December 31, 1998, arguing that his delay in filing the third 3.850 motion was
justified because he did not receive the district court's dismissal order until
February 1996. Drew also argued that the AEDPA limitations period should have
been tolled because the third 3.850 motion was "properly filed" as it complied
with state procedural rules governing filing. The district court adopted the
magistrate judge's Report and Recommendation on January 6, 1999, dismissing
the petition as untimely pursuant to 28 U.S.C. § 2244(d).
II.
Drew advances two reasons why the district court erred in dismissing his
petition. Initially, he claims that the AEDPA statute of limitations should have
been tolled for the time during which his third 3.850 motion was pending in the
state court. In the alternative, he says that he is entitled to equitable tolling
because the delay in filing resulted from state court proceedings required by the
order dismissing his first habeas corpus petition without prejudice.
We review de novo a district court's decision to dismiss a petition for a writ
of habeas corpus. See Delancy v. Florida Dep't of Corrs., 246 F.3d 1328, 1329
(11th Cir. 2001). We also review a district court's legal decision on equitable
tolling de novo. See Helton v. Sec'y for Dep't of Corrs., 259 F.3d 1310, 1312
(11th Cir. 2001). However, the district court's determinations of the relevant facts
will be reversed only if clearly erroneous. See Dorsey v. Chapman, 262 F.3d 1181,
1185 (11th Cir. 2001). This standard requires us to affirm a district court's
findings of fact unless "the record lacks substantial evidence" to support that
determination. Lightning v. Roadway Express, Inc., 60 F.3d 1551, 1558 (11th Cir.
1995). We have squarely held that a determination regarding a party's diligence is
a finding of fact that "will not be disturbed unless clearly erroneous." Walters v.
City of Atlanta, 803 F.2d 1135, 1145 (11th Cir. 1986). Finally, we review a trial
court's decision whether to conduct an evidentiary hearing on an equitable tolling
claim for an abuse of discretion. See Fisher v. Gibson, 262 F.3d 1135, 1145 (10th
Cir. 2001); Brown v. Jones, 255 F.3d 1273, 1277 n.4 (11th Cir. 2001).
A.
The AEDPA imposes a one-year statute of limitations on all habeas corpus
petitions. See 28 U.S.C. § 2244(d)(1). This rule "serves the well-recognized
interest in the finality of state court judgments" and "reduces the potential for
delay on the road to finality by restricting the time that a prospective federal
habeas petitioner has in which to seek federal habeas review." Duncan v. Walker,
533 U.S. 167, 179, 121 S. Ct. 2120, 2128, 150 L. Ed. 2d 251 (2001). For
individuals convicted prior to the enactment of the AEDPA, the statute of
limitations began to run on the law's effective date of April 24, 1996. See, e.g.,
Hurley, 233 F.3d at 1296. For people in Drew's position, therefore, federal habeas
petitions ordinarily had to be filed by April 23, 1997 in order to be considered
timely. However, the federal habeas statute tolls the limitations period 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).
Drew does not dispute that his petition would be time-barred in the absence
of tolling. Instead, he asserts that the limitations period should have been tolled
for the period from April 23, 1996 to July 18, 1997 because his third 3.850 motion
was "properly filed" and "pending" in the state court at that time. Respondent
counters that Drew's motion was not "properly filed," and thus not entitled to
tolling, because it was deemed untimely and successive by the state court.
The Supreme Court recently analyzed the significance of Section
2244(d)(2)'s "properly filed" requirement in Artuz v. Bennett, 531 U.S. 4, 121 S.
Ct. 361, 148 L. Ed. 2d 213 (2000). The Court explained that "[a]n application is
'filed,' as that term is commonly understood, when it is delivered to, and accepted
by, the appropriate court officer for placement into the official record." Id. at 8,
121 S. Ct. at 363. The opinion went on to hold that
an application is "properly filed" when its delivery and acceptance are
in compliance with the applicable laws and rules governing filings.
These usually prescribe, for example, the form of the document, the
time limits upon its delivery, the court and office in which it must be
lodged, and the requisite filing fee.
Id., 121 S. Ct. at 364 (emphasis in original) (footnote omitted).
Drew does not dispute the state court's determination that his third Rule
3.850 motion was a successive petition. (2) Under Artuz, however, the fact that a
motion is successive does not render it improperly filed. Before the Supreme
Court explained the meaning of "properly filed," this Court had held that the
AEDPA statute of limitations should not be tolled during the pendency of a state
post-conviction petition that was later deemed successive by the state court. See
Weekley v. Moore, 204 F.3d 1083 (11th Cir. 2000). After issuing Artuz, the
Supreme Court vacated Weekley for further consideration, and on remand a panel
of this Court revised its earlier decision. Holding that the successive nature of a
petition does not prevent it from being properly filed, this Court explained that
"the question of whether an application has been 'properly filed' is quite separate
from the question whether the claims contained in the application are meritorious
and free of procedural bar." Weekley v. Moore, 244 F.3d 874, 876 (11th Cir.
2001) (quoting Artuz, 531 U.S. at 9, 121 S. Ct. at 364). Quite simply, the fact that
a petition is successive does not mean that its delivery and acceptance failed to
comply with applicable rules governing such matters as form, time limit, delivery
location, and fees. See Artuz, 531 U.S. at 8, 121 S. Ct. at 364. A successive
petition can thus toll the statute of limitations. See Delancy, 246 F.3d at 1330 n.2
(noting under Weekley and Artuz that a "successive state court post-conviction
motion constitutes a 'properly filed' petition for purposes of tolling AEDPA's
statute of limitations period").
If the successive nature of the third 3.850 motion had been its only flaw,
Drew would have been entitled to tolling. Unfortunately for his case, however, the
petition was also untimely. As with the rule governing successive petitions, the
statute of limitations for Florida post-conviction motions is set forth in Rule 3.850:
A motion to vacate a sentence that exceeds the limits provided
by law may be filed at any time. No other motion shall be filed or
considered pursuant to this rule if filed more than 2 years after the
judgment and sentence become final in a noncapital case or more than
1 year after the judgment and sentence become final in a capital case
in which a death sentence has been imposed unless it alleges that
(1) the facts on which the claim is predicated were unknown to
the movant or the movant's attorney and could not have been
ascertained by the exercise of due diligence, or
(2) the fundamental constitutional right asserted was not
established within the period provided for herein and has been held to
apply retroactively, or
(3) the defendant retained counsel to timely file a 3.850 motion
and counsel, through neglect, failed to file the motion.
Fla. R. Crim. P. 3.850(b).
In this case, there is no doubt that Drew filed his third Rule 3.850 motion
well over two years after his conviction became final. Prior to Artuz, this Court
held in Webster v. Moore, 199 F.3d 1256 (11th Cir. 2000), that claims considered
procedurally barred under state law for reasons such as untimeliness were not
properly filed and could therefore not toll the AEDPA statute of limitations.
Webster remains valid today. According to Artuz, a petition is not "properly
filed" if it is not filed in compliance with "the time limits upon its delivery." 531
U.S. at 8, 121 S. Ct. at 364. In a footnote, the Supreme Court explicitly left open
"the question whether the existence of certain exceptions to a timely filing
requirement can prevent a late application from being considered improperly
filed." Id. at 9 n.2, 121 S. Ct. at 364 n.2 (citing Smith v. Ward, 209 F.3d 383, 385
(5th Cir. 2000)).
We addressed the question of exceptions in Delancy, and held that an
untimely Rule 3.850 motion would be deemed properly filed if it alleged facts that
would merit an exception from the timely filing requirement. In that case, the
district court had dismissed Delancy's habeas corpus petition as untimely under
the AEDPA. The petitioner argued that the statute of limitations should have been
tolled because he had a 3.850 motion pending in the state court during the
limitations period. Even though the 3.850 motion had not been filed within the
two year period established by Rule 3.850(b), we explained that the 3.850 petition
was not "improperly filed" since it alleged facts that would entitle the petitioner to
an exception under the Florida statute:
Under Artuz, an application is "properly filed" when its delivery and
acceptance "are in compliance with the applicable laws and rules
governing filings." Because Rule 3.850 requires only that the motion
allege that facts "were unknown to the movant or the movant's
attorney and could not have been ascertained by the exercise of due
diligence" we find that if Delancy's Rule 3.850 motion in fact alleges
"newly discovered evidence," it was "properly filed."
246 F.3d at 1331 (citations omitted).
Pursuant to Delancy, Drew's third 3.850 motion would have been properly
filed despite its untimeliness if it had alleged facts that would trigger any of the
three exceptions set forth in the Florida statute: (1) the facts on which the claim is
predicated were unknown to the movant or his attorney and could not have been
ascertained with due diligence; (2) the fundamental constitutional right asserted
was not established during the period provided and has since been deemed
retroactive; or (3) the petitioner retained counsel to file a timely 3.850 motion and
counsel, through neglect, failed to do so. See Fla R. Crim. P. 3.850(b). Even with
the liberal reading appropriate for pro se pleadings, see Holsomback v. White, 133
F.3d 1382, 1386 (11th Cir. 1998), nothing in Drew's third 3.850 motion can be
interpreted to allege that any of the exceptions apply.
Drew's third 3.850 motion did not allege that the facts on which it was
based were previously unknown and unascertainable through due diligence. In
relation to his claim that the conviction was obtained with tampered evidence,
Drew unambiguously said in the motion that he
knew this evidence had been tampered with by the State, and had
caught their deed way before trial began, but never had a chance to
prove it back then. However, at this point in time, beyond a shadow
of a doubt, Defendant can prove the State tampered with his taped
confession and the transcripts of said statement too.
Rule 3.850 Motion, Apr. 23, 1996, at 6. Later, in response to the 3.850 motion
sheet's question about why some claims had not been raised earlier, Drew stated
that, "[a]lthough none of the grounds were presented on Direct Appeal,
Defendant's Appellate Counsel was aware of them all thru [sic] phone calls and
letters from the Defendant." Id. at 7. As these statements acknowledge, Drew has
long known the facts underlying his claims. He admits that he knew the facts
surrounding the evidence tampering claim even before his trial and that he knew
of the other facts by the time of his direct appeal. That he was not necessarily able
to prove all of the alleged violations at that time does not excuse his late filing.
Rule 3.850(b)(1) clearly states that an exception applies only if the facts
underlying the claim were unknown to the movant or the movant's attorney and
could not have been ascertained by the exercise of due diligence.
In the second place, Drew did not allege under 3.850(b)(2) that the
fundamental constitutional right violated was not established during the
limitations period. His motion included such common claims as coerced
confession, evidence tampering, prosecutorial misconduct, and ineffective
assistance of counsel.
Finally, under Rule 3.850(b)(3), Drew did not allege any failure by counsel
"retained . . . to timely file a 3.850 motion." Drew did attempt to place blame on
his appellate attorney, but this attempt is insufficient. According to Drew,
appellate counsel refused to send him the necessary transcripts after the denial of
his direct appeal. As a result, Drew's brother had to make copies, which he sent to
Drew in April 1990. Drew did, however, use the transcripts in preparing his
second 3.850 motion in 1992. This alleged delay is of no avail for two reasons.
First, Drew's allegations are facially insufficient to merit an exception from the
timely filing rule since they do not involve a claim about an attorney retained for
the purpose of preparing a 3.850 motion. Second, Drew admits that, despite his
attorney's alleged delays, he had the transcripts by 1990 and even used them in
1992. It is inconceivable that the appellate attorney's alleged neglect in any way
justified the late filing of the third motion in April 1996.
Because Drew's third 3.850 motion was untimely and did not allege facts
relevant to any of the statutory exceptions to Florida's filing deadline, the motion
was not properly filed under the AEDPA. Therefore, the AEDPA's statute of
limitations cannot be tolled for the period during which that motion was pending
before the state court.
B.
As an alternative to his unsuccessful claim regarding statutory tolling, Drew
also argues that he is entitled to equitable tolling in light of what he considers the
unusual and compelling circumstances of this case. It is by now clear in this
Circuit that "[e]quitable tolling can be applied to prevent the application of the
AEDPA's statutory deadline when 'extraordinary circumstances' have worked to
prevent an otherwise diligent petitioner from timely filing his petition." Helton,
259 F.3d at 1312. Although "[e]quitable tolling is an extraordinary remedy which
is typically applied sparingly," Steed v. Head, 219 F.3d 1298, 1300 (11th Cir.
2000) (citing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453,
457-58, 112 L. Ed. 2d 435 (1990)), it is "appropriate when a movant untimely files
because of extraordinary circumstances that are both beyond his control and
unavoidable even with diligence." Sandvik v. United States, 177 F.3d 1269, 1271
(11th Cir. 1999) (emphasis added). The burden of establishing entitlement to this
extraordinary remedy plainly rests with the petitioner. See, e.g., Helton, 259 F.3d
at 1313-14 (denying equitable tolling in light of petitioner's failure to present
necessary evidence); see also Justice v. United States, 6 F.3d 1474, 1479 (11th
Cir. 1993) ("The burden is on the plaintiff to show that equitable tolling is
warranted.").
In order to be entitled to the benefit of equitable tolling, a petitioner must
act with diligence, and the untimeliness of the filing must be the result of
circumstances beyond his control. The magistrate judge in this case found as a
fact, and the district court agreed, that Drew acted with no such diligence in
pursuing his habeas corpus petition, and the determination of whether a party was
diligent is a finding of fact, subject to review for clear error. See, e.g., Hale
Container Line, Inc. v. Houston Sea Packing Co., 137 F.3d 1455, 1468 (11th Cir.
1998) (holding that the determination of due diligence is a matter of fact and will
not be overturned unless clearly erroneous); Martin v. Occupational Safety &
Health Review Comm'n, 947 F.2d 1483, 1484-85 (11th Cir. 1991) (holding that
agency's diligence determination is a question of fact, not a mixed question of law
and fact); Walters, 803 F.2d at 1145. (3) The record before this court does not
support a determination that the magistrate judge or the district court clearly erred
in finding Drew dilatory.
The primary focus of Drew's equitable tolling argument is that it would be
unfair to dismiss his petition as untimely since he initially filed a timely federal
habeas petition that was dismissed without prejudice. Basically, Drew claims that
he should not be penalized for complying with the district court's order that he file
a third 3.850 motion before returning to federal court. What this argument
ignores, however, is the extended amount of time that elapsed between the
issuance of the district court's first dismissal order on March 28, 1995, and the
filing of Drew's third 3.850 motion more than a year later on April 23, 1996.
Because of this delay, Drew's third 3.850 motion was not disposed of by the state
court until July 1997. By the time Drew filed his federal habeas petition almost
three months later, in October 1997, more than seventeen months had passed since
the effective date of the AEDPA and more than five months had passed since the
expiration of the AEDPA statute of limitations. Although Drew claims that his
delay in filing the third 3.850 motion was justified by the fact that he did not
receive the district court's order until almost one year after it was issued, Drew's
own lack of diligence precludes us from equitably tolling the statute of limitations.
In particular, the record reflects that, for a period of some sixteen months, Drew
made virtually no effort to ascertain the status of his first habeas petition in the
district court. This lack of diligence ultimately prevented Drew from filing the
instant federal habeas petition until well after the AEDPA statute of limitations
had expired.
In objecting to the magistrate judge's Report and Recommendation, Drew
argued that the delay in filing the third 3.850 motion was based not on his lack of
diligence, but rather on the failure of the Clerk of the Court to send him the order
dismissing his first habeas petition. Prior to the objection to the magistrate judge's
Report and Recommendation, the only mention of this excuse was the
unelaborated statement in his memorandum that "[d]ue to the negligence of the
Clerk of the Court of the U.S. District Court, Judge James L. King's [March 28,
1995] order was not sent to petitioner until February 20, 1996." It was not until
Drew objected to the magistrate judge's Report and Recommendation that he
provided for the first time any allegation regarding his own efforts to learn about
the case. Even then, Drew's objections contained no detailed explication of his
attempts to obtain information from the district court and listed no information
about specific letters that he sent. The only evidence provided by Drew at any
stage of the habeas corpus proceeding was a prison official's response to Drew's
request for a list of all of his outgoing and incoming legal mail between March 28,
1995 and April 1, 1996. Notably, the document lists only five items: a letter sent
to Vicki Shea, Drew's aunt, on January 25, 1995; a letter received from the district
court on March 13, 1995; a letter to the district court on January 30, 1996; a letter
to Judge King on February 14, 1996; and a letter to the State Attorney on April 24,
1996. Even if this record can be read to establish that Drew did not receive the
district court's order in 1995, it provides no indication of the multiple letters of
inquiry that Drew claims to have sent to the Clerk's office during the period in
question.
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. See Knight v.
Schofield, -- F.3d -- (11th Cir. 2002); see also Woodward v. Williams, 263 F.3d
1135, 1143 (10th Cir. 2001) ("[A] prisoner's lack of knowledge that the state
courts have reached a final resolution of his case can provide grounds for
equitable tolling if the prisoner has acted diligently in the matter."); Phillips v.
Donnelly, 216 F.3d 508, 511 (5th Cir. 2000) (explaining that a delay in receiving
notice of denial of appeal might render equitable tolling appropriate). Such tolling
is not proper here. Even assuming that he did not receive the district court's order
until February 1996, Drew has provided no evidence supporting his claim that he
repeatedly attempted to ascertain the status of his case from the Clerk's office, a
burden necessary to sustaining his claim of extraordinary circumstances. Indeed,
far from depicting diligent efforts to learn about the case, the mail record that
comprises Drew's entire evidentiary proffer actually cuts against his claim, as it
reflects only one letter sent to the Clerk's office. And even that one letter was not
mailed until January 30, 1996, a full sixteen months after the petition was filed and
only three weeks before he received a copy of the order. We think that one letter
is plainly an insufficient evidentiary foundation to support Drew's claim of
diligence, let alone to establish that the trial court clearly erred in finding Drew
dilatory. (4)
Aside from the unavailing mail log, Drew provides no additional
information about his alleged attempts, including copies of the letters, the dates on
which they were sent, or any description of their contents. Furthermore, he does
not claim to have taken any steps other than writing letters, such as calling the
Clerk's office by telephone or seeking help from people with the ability to go to
the court personally, including the brother and aunt who had helped him with
other aspects of his post-conviction challenges. In the absence of any showing of
his own diligence, Drew cannot be entitled to the rare and extraordinary remedy of
equitable tolling. See, e.g., Helton, 259 F.3d at 1313-14 (denying equitable tolling
to inmate whose counsel misinformed him about AEDPA time limit and whose
prison library allegedly lacked copies of relevant law in light of petitioner's failure
to state any "independent efforts" that he made to ascertain deadline). With
nothing more than a simple allegation in a memorandum before her, we cannot
conclude that the magistrate judge clearly erred in finding that Drew had not been
diligent. Similarly, the district court did not clearly err in adopting the Report and
Recommendation.
The dissent takes issue with the trial court's finding of fact that Drew did
not act diligently. In doing so, however, it disregards the unambiguous and
longstanding requirement that we review the district court's findings of fact for
clear error. Even if there were some reasonable debate as to Drew's diligence (and
in our view there is precious little on this record to support that debate), the
dissent offers no reason to find clear error, which, after all, requires a conclusion
that "the record lacks substantial evidence" to support the determination of the
district court. (5) Lightning, 60 F.3d at 1558; see also In re Hillsborough Holdings
Corp., 127 F.3d 1398, 1401 (11th Cir. 1997) (describing clear error as "a very high
standard, and one we would rarely be likely to find"). Indeed, rather than
according the necessary deference to the district court's findings of fact, the
dissent engages in a de novo review of the facts, and in the process eviscerates the
trial court's central fact-finding role -- an approach that has no legal basis. See,
e.g., Fed. R. Civ. P. 52(a) ("Findings of fact, whether based on oral or
documentary evidence, shall not be set aside unless clearly erroneous."); Dorsey,
262 F.3d at 1185 ("A district court's factual findings in a habeas corpus
proceeding are reviewed for clear error."); Hale Container, 137 F.3d at 1468
(holding that factual finding regarding diligence will not be overturned unless
clearly erroneous); see also Amadeo v. Zant, 486 U.S. 214, 223, 108 S. Ct. 1771,
1777, 100 L. Ed. 2d 249 (1988) ("It is well settled . . . that a federal appellate court
may set aside a trial court's findings of fact only if they are 'clearly erroneous.'").
"[E]ven when the district court's findings do not rest on credibility
determinations, but are based instead on physical or documentary evidence," the
Supreme Court has held that appellate courts must review these findings for clear
error because "[t]he trial judge's major role is the determination of fact, and with
experience in fulfilling that role comes expertise." Anderson v. City of Bessemer
City, 470 U.S. 564, 574, 105 S. Ct. 1504, 1511-12, 84 L. Ed. 2d 518 (1985).
Moreover, "the parties to a case on appeal have already been forced to concentrate
their energies and resources on persuading the trial judge that their account of the
facts is a correct one; requiring them to persuade three more judges at the appellate
level is requiring too much." Id. at 575, 105 S. Ct. at 1512. Therefore, the mere
possibility that we may disagree with a district court's fact finding does not permit
us to reverse a trial court's determination absent clear error. On the record
presented to the appellate court in this case, we can find no clear error. (6)
We are also satisfied that there is no basis for concluding that Drew should
have received an evidentiary hearing on his equitable tolling claim. Section 2244
of Title 28 of the United States Code 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. See
Fisher, 262 F.3d at 1145; see also Brown, 255 F.3d at 1277 n.4 (11th Cir. 2001)
(applying abuse of discretion standard to district court's decision regarding
evidentiary hearing on habeas petition). Even if Drew could somehow prove that
he did not receive the district court order (and for these purposes we assume this to
be so), he has offered no reason to believe that an evidentiary hearing would help
him prove that he acted diligently in trying to obtain it. In fact, as discussed
already, the same document that would support the claim that he did not receive
the order would almost certainly defeat any claim that he sent repeated letters to
the Clerk of the Court. (7) Simply put, an evidentiary hearing would be of no value
to Drew even if he could show that he did not receive the district court order. In
light of the wholly conclusory nature of Drew's recently-presented allegations and
in the absence of supporting evidence, the district court did not abuse its discretion
in deciding not to hold a hearing. (8)
III.
Because the AEDPA statute of limitations cannot be tolled for the time
during which Drew's untimely 3.850 motion was pending before the state court
and because Drew is not entitled to equitable tolling in light of his own lack of
diligence, the district court properly dismissed his petition for a writ of habeas
corpus. The judgment below is therefore AFFIRMED. (9)
BARKETT, Circuit Judge, dissenting:
While I agree with the majority's discussion of statutory tolling, I do not
join the opinion because I believe its discussion of equitable tolling is flawed and
imposes an unjust result. The majority's reasons for finding that Drew is not
entitled to equitable tolling have no legal basis and offend basic notions of fair
process. I believe the majority's view of the applicable law is erroneous and
accordingly yields a distorted and impoverished conception of this Court's
traditional equitable power.
The majority's most fundamental error can be stated simply: It denies
equitable tolling on the ground that Drew failed to exercise diligence before he
was subject to any diligence requirement. The majority believes that Drew was
not diligent between the time he filed his first federal habeas petition in September
1994 and the time he belatedly received the order dismissing it in February 1996.
The statute of limitations that Drew now seeks to toll is contained in AEDPA,
which was not enacted until two months later, on April 24, 1996. In other words,
the majority assumes that Drew must show he was diligent even before the statute
of limitations he seeks to toll was enacted into law. That assumption is both
wrong and unfair. However, even if it were not, under the facts of this case, the
majority reaches the wrong result under its own analysis by concluding that Drew
was not diligent and that he is not entitled to an evidentiary hearing on the
question of his diligence.
I. The Applicable Law
A statute of limitations contains an inherent element of harshness, since it
operates to deprive litigants of the ability to protect their rights simply by the
passage of time. See, e.g., Goetz v. Sec'y of Health & Human Servs., 4 Fed.
Appx. 827, 830 (Fed. Cir. 2001). When certain circumstances prevent a litigant
from acting within the statutory period, however, the doctrine of equitable tolling
abates this harshness by "stopping the clock" during the time the litigant was
unable to act. See Justice v. United States, 6 F.3d 1474, 1475 (11th Cir. 1993)
("The doctrine of equitable tolling abates the harsh operation of the statute of
limitations under certain circumstances in which barring a plaintiff's potentially
meritorious action would be unjust."); Ellis v. GMAC, 160 F.3d 703, 706 (11th
Cir. 1998) ("'Equitable tolling' is the doctrine under which plaintiffs may sue after
the statutory time period has expired if they have been prevented from doing so
due to inequitable circumstances."). Equitable tolling adds to the time to file a
claim any time during which relevant conditions prevented the plaintiff from
acting within the statutory period to preserve his or her rights. As the majority
notes, this Court has held in the context of AEDPA's limitation period that
equitable tolling is "appropriate when a movant untimely files because of
extraordinary circumstances that are both beyond his control and unavoidable
even with diligence." Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.
1999).
As Sandvik indicates, equitable tolling exists to mitigate the harshness of a
statute of limitations for a litigant who diligently, but--because of circumstances
beyond his control--unsuccessfully, attempted to comply with it. In determining
whether equitable tolling is appropriate, a court therefore asks whether the
claimant diligently attempted to comply with the statute of limitations. See, e.g.,
Irwin v. Dep't of Veterans Admin., 498 U.S. 89, 96 (1990) (equitable tolling
appropriate where claimant filed defective pleading during statutory period);
Goldsmith v. City of Atmore, 996 F.2d 1155, 1161 (11th Cir. 1993) (same); Flight
Attendants Against UAL Offset (FAAUO) v. Comm'r, 165 F.3d 572, 576 (7th Cir.
1999) ("a party who wants to appeal to the doctrine of equitable tolling to excuse a
late filing [must] show . . . that he tried diligently to file within the deadline or as
soon afterwards as possible."); Husch v. Szabo Food Serv. Co., 851 F.2d 999,
1004 (7th Cir. 1988) (plaintiff entitled to equitable tolling because she made a
reasonable effort to comply with the Age Discrimination in Employment Act's
limitation period for filing a federal lawsuit). What the majority fails to
recognize--but what follows from the fact that equitable tolling is a remedy for a
litigant who has diligently attempted to comply with the statute of limitations--is
that the diligence Sandvik requires must occur while the statute runs. It matters
not if it occurs before the statute begins to run, because at that point the clock has
not begun to tick; and it matters not if it occurs after the statute has run, because
then the clock has already stopped: Both before and after, there is nothing to toll.
Simply put, the petitioner's diligence must correspond to the time he seeks to toll.
See Brackett v. United States, 270 F.3d 60, 71 (1st Cir. 2001) (candidate for
equitable tolling must "act[] with 'reasonable diligence throughout the period he
seeks to toll.'" (emphasis added) (citation omitted)); Green v. United States, 260
F.3d 78, 81 (2d Cir. 2001) (same). (10)
A statute of limitations, by its own terms, requires a certain amount of
diligence, because plaintiffs who do not act diligently to protect their rights run the
risk that the time will expire on their ability to do so. It therefore makes obvious
sense to say that a plaintiff who did not diligently attempt to comply with the
statute of limitations is not entitled to the remedy of equitable tolling. A plaintiff
who makes no effort to bring suit within the period allowed by law cannot invoke
the court's equitable power to toll the statute of limitations. See, e.g., Higgins v.
Runyon, 921 F.Supp. 465 (E.D.Mich. 1996) (plaintiff who did not attempt to
comply with Title VII filing deadlines not entitled to equitable tolling); Her by Her
v. Sec'y of Health & Human Servs., 33 Fed. Cl. 542 (1995) (plaintiffs who did not
diligently attempt to file within statutory period not entitled to equitable tolling).
But it is equally obvious that a plaintiff can neither attempt, nor fail to attempt, to
comply with a statute of limitations that does not exist. The question whether a
plaintiff made a diligent effort to comply with a non-existent statute of limitations
is simply meaningless.
The majority attempts to avoid this absurdity by suggesting that the
equitable tolling inquiry is not really concerned with whether the plaintiff made a
diligent effort to comply with the statute of limitations he seeks to toll, but with
whether the plaintiff was diligent at every time that might conceivably affect his
ability to satisfy a later-enacted, unforeseeable and unforeseen, statute of
limitations. This suggestion is without legal precedent, and it is unfair because it
violates the basic concept of notice: Drew had no way to know that, while he
complied with the federal district court's instruction to exhaust his remedies in
state court, federal law would change to impose a statute of limitations on his
return to federal court. In essence, the majority's rule penalizes Drew not for his
lack of diligence, but for his lack of clairvoyance. (11)
It becomes clear that the majority is really ruling against Drew on the basis
of his failure to anticipate a future Act of Congress when one considers the law in
existence at the time of Drew's alleged lack of diligence. Before the enactment of
AEDPA on April 24, 1996, the right of a prisoner to file a petition for habeas
corpus was not subject to any statute of limitations. See Smith v. Jones, 256 F.3d
1135, 1143 (11th Cir. 2001) (explaining that prior to AEDPA, "the law permitted
[prisoners] to delay filing for years."). Although the fact of incarceration may
have given prisoners an incentive to seek habeas relief sooner rather than later,
they also had obvious reason to take the time necessary to file petitions that
presented their claims as effectively as possible. See Aron v. United States, 291
F.3d 708, 712 (11th Cir. 2002) ("If prisoners wished to spend more time preparing
their petitions--albeit at the potential cost of suffering a longer period of unlawful
confinement--the law afforded them that opportunity."). In short, under pre-AEDPA law, the timing of habeas review was the prisoner's choice to make. And
in reliance on this law, many petitioners had not filed petitions within one year of
the date on which their convictions became final, as AEDPA would later require.
See Smith, 256 F.3d at 1143.
After AEDPA was enacted, courts were confronted with the question of
how to apply the new law to petitioners whose convictions became final before
AEDPA's enactment and who were now seeking to file a habeas petition more
than a year after the date on which the conviction had become final. We answered
that question for state prisoners in Wilcox v. Fla. Dep't of Corr., 158 F.3d 1209
(11th Cir. 1998), holding that a one-year grace period for filing a federal habeas
petition would apply to those petitioners whose convictions became final before
the date of AEDPA's enactment. (12) We explained that "it would be unfair, and
impermissibly retroactive," to apply AEDPA's limitation period to prisoners
whose convictions became final before the Act's effective date. Wilcox, 158 F.3d
at 1211; Goodman, 151 F.3d at 1337.
In Aron, we followed Goodman and Wilcox in holding that § 2255(4),
which states that a petition is timely if filed within one year of "the date on which
the facts supporting the claim or claims presented could have been discovered
through the exercise of due diligence," is not to be retroactively applied. 291 F.3d
at 713. We explained that before the enactment of AEDPA, there was no
requirement that a petitioner exercise diligence in discovering new facts in order
for a petition based on those facts to be timely filed. Id. Citing Goodman, we
reasoned that "'[i]t would be unfair and impermissibly retroactive' to require [the
petitioner] to have exercised due diligence before there was any legal requirement
that he do so," and therefore held that a petitioner "cannot be penalized for any
lack of diligence before AEDPA's enactment, because at that time there was no
requirement that he act diligently." Id.
In the absence of any statute of limitations, pre-AEDPA law gave prisoners
the right to decide the timing of habeas review; thus, the requirement that a
prisoner exercise diligence in order to be entitled to equitable tolling of AEDPA's
statute of limitations did not enter the landscape of federal habeas law until
AEDPA's statute of limitations itself was enacted on April 24, 1996. The worst
that can be said of Drew's pre-AEDPA conduct is that he took the time that pre-AEDPA law allowed him. That tells us nothing about his entitlement to equitable
tolling of the later-enacted statute of limitations. Again, since it is the statute of
limitations that the petitioner is seeking to toll, the relevant inquiry is whether the
petitioner diligently attempted to comply with the statute of limitations. It is a
fundamental principle of equity jurisprudence that we consider only that portion of
the litigant's conduct that has an "immediate and necessary relation" to the remedy
sought. See Keystone Driller Co. v. Gen. Excavator Co., 290 U.S. 240, 245
(1933) ("[C]ourts of equity do not make the quality of suitors the test. They apply
the maxim requiring clean hands only where some unconscionable act of one
coming for relief has immediate and necessary relation to the equity that he seeks
in respect of the matter in litigation."); see also Meis v. Sanitas Serv. Corp., 511
F.2d 655, 657-58 (5th Cir. 1975) (equitable relief not barred because the
irregularities complained of were not sufficiently related to the subject matter of
the suit) (13); Justice, 6 F.3d at 1480 (noting that "traditional principles of equity
jurisprudence" are appropriate in reaching a decision on equitable tolling).
Without the delay in Drew's receipt of the district court's order of dismissal, he
may have been able to file his second federal petition on time; then again, he may
not. (14) But apart from any causal uncertainty, there simply is no "immediate and
necessary" equitable relation between what Drew did while he was subject to pre-AEDPA law, which contained no statute of limitations, and what he did (or could
have done) to comply with AEDPA's statute of limitations once it was enacted.
At no point did Drew fail to do something that he was required to do under the
applicable law.
By projecting a diligence requirement back into the law at a time when it
contained no statute of limitations, the majority effectively gives AEDPA
retroactive application. That is something this Court has consistently held to be
impermissible and unfair. See, e.g., Goodman, 151 F.3d at 1337 ("It would be
unfair, and impermissibly retroactive, to apply § 2255's one-year 'period of
limitation' to federal prisoners . . . whose convictions became final prior to the
effective date of § 105 of the AEDPA."); Wilcox, 158 F.3d at 1211 (extending
Goodman to § 2254 as well); Smith, 256 F.3d at 1143 ("'[I]t would be unfair and
impermissibly retroactive' to cut off review for noncompliance with a rule that had
not existed when the noncompliance occurred."); Aron, 291 F.3d at 713 ("It
would be unfair and impermissibly retroactive' to require [the petitioner] to have
exercised due diligence before there was any legal requirement that he do so.").
The majority engages in a formulaic recital of the diligence requirement, but
by ignoring the temporal context of the events in this case, it misrepresents and
distorts the purpose of equitable tolling. Pre-AEDPA law did not require Drew to
act by a certain date, and Drew had no reason to know that Congress would later
amend the law to impose a statute of limitations. Consequently, the majority has
no equitable basis for refusing to toll the statute simply because it finds that Drew
did not act with the diligence that the law would later require of him. (15)
II. Drew's Alleged Lack of Diligence
Even if Drew had been subject to a statute of limitations during the period
the majority focuses on, I would still disagree that the record establishes that Drew
was not diligent. The majority is concerned with the period between Drew's filing
of his first federal petition and his return to state court with his renewed motion for
state post-conviction relief. Unlike the magistrate (and, by adoption, the district
court), the majority's objection is not that Drew simply waited too long to return to
state court, because (as the majority recognizes) Drew claims--and the State does
not contest--that he did not receive notice of the dismissal of his federal petition
until some ten months after it was actually dismissed. (16) Nor is the majority's
objection that Drew did not act to ascertain the status of his case, because we
know that he received a docket report after writing to the clerk, and a copy of the
order of dismissal after writing directly to the presiding judge. (17) Rather, the
majority is concerned that Drew did not contact the court soon enough or often
enough to ask what was happening with his case. (18) That, in the majority's view, is
the lack of diligence that precludes equitable tolling.
While diligence for a pro se habeas petitioner entails attentiveness to the
progress of his case, any duty to inquire with the court regarding the status of
one's case cannot arise before the court is afforded a reasonable time to consider
and rule upon the petition; it is, after all, the court's responsibility to notify
litigants when a result has been reached. (19) Cf. Huizar v. Carey, 273 F.3d 1220,
1223 (9th Cir. 2001) ("A prisoner who delivers a document to prison authorities
gets the benefit of the prison mailbox rule, so long as he diligently follows up once
he has failed to receive a disposition from the court after a reasonable period of
time.").
In the absence of hindsight, what should we assume was a reasonable period
for the adjudication of Drew's federal petition? The majority does not say, and I
cannot discern any basis for its unelaborated finding that Drew was dilatory
simply by allowing sixteen months to elapse before inquiring about the status of
his case--assuming, for present purposes, that he in fact did nothing for sixteen
months. Indeed, the majority's position is squarely at odds with a prior decision of
this Court. In a recent case, we equitably tolled AEDPA's statute of limitations
after finding that the petitioner exercised diligence by inquiring with the court
sixteen months after the court had actually denied his application--in other words,
a period longer than Drew waited here. See Knight v. Schofield ___ F.3d ___
(11th Cir. 2002). The majority argues that Knight is distinguishable on the ground
that the Clerk informed Knight that he would be notified as soon as a decision was
issued. But that is not a crucial piece of information that Drew was missing.
Drew had every reason to expect that the court would notify him once it ruled on
his petition; every litigant knows that the court is supposed to inform the parties
when a result has been reached. Knight, for that matter, was no exception: What
he actually asked the Clerk was "when he could expect a ruling." Id. at ___. The
Clerk declined to answer that question, and instead told him what he surely
already knew--that he would be notified once the court ruled on his petition. The
majority's suggestion that it would make all the difference to Drew's case had the
Clerk of the district court told him, at the time he filed his petition, that he would
be notified of the result is disingenuous. (20)
Sixteen months seems like a long time to the majority in part because
Drew's first federal petition was actually dismissed after six months, and thus
some ten months may have elapsed by the time he inquired about his case.
However, it is important to bear in mind that his second federal petition was not
dismissed until fifteen months had passed, and then it took another fourteen
months for Drew simply to obtain a certificate of appealability addressing the
timeliness of his petition. Thus, as a general matter, the timing of Drew's inquiry
was not significantly out of line with the progress of his federal proceedings. (21)
Moreover, the fifteen months the court spent on Drew's second
petition--rather than the six months it spent on his first--is closer to the average
time the federal district courts require to adjudicate habeas petitions from state
prisoners. According to a study conducted by the Bureau of Justice Statistics in
1995, federal habeas petitions involving non-capital homicide convictions and
presenting three or more issues--petitions like Drew's, in other words--took on
average 436 days to resolve; if we take into account the kinds of issues presented,
the average rises to as much as 608 days. Roger A. Hanson & Henry W.K. Daley,
U.S. Dep't of Justice, Office of Justice Programs, Bureau of Justice Statistics,
Federal Habeas Corpus Review: Challenging State Court Criminal Convictions
23, 25 (1995). (22) Even if we assume that the first time Drew attempted to ascertain
the status of his case was in his letter to the district court on January 18, 1996, and
do not consider the types of claims presented in his petition, then he waited only
54 days beyond the average date by which a federal court would have ruled on the
petition. (23) Once we take into account the types of claims raised, Drew
indisputably contacted the court well before the average date on which a federal
district court could have been expected to reach a decision on the merits.
A petitioner who contacts the court to inquire about the status of his case
before the average time by which a federal district court would have reached a
decision has, in my view, acted with all due diligence. Indeed, it would be
reasonable to allow the court somewhat longer than the average time before
making inquiries. Consequently, we should not conclude that sixteen months was
unreasonably long. The majority has identified no basis for its finding (contrary to
a prior decision of this Court) that a sixteen month "delay" before contacting the
court about the status of the petition constitutes a lack of diligence. (24)
III. The Right to an Evidentiary Hearing
Under the approach I would take to this case, I do not think an evidentiary
hearing is necessary, because I would not consider whether Drew was diligent
before he was subject to any statute of limitations, and it is clear from the record
that, once Drew was subject to AEDPA's statute of limitations, there was nothing
he could have done differently, since his Rule 3.850 motion had already been filed
in the state court. And even if, following the majority's approach, I were to
consider Drew's diligence in the year before AEDPA was enacted, I think the
record provides ample evidence that Drew inquired about the status of his case
within a reasonable period of time, so once again the equitable tolling issue could
be decided without an evidentiary hearing. However, the majority has a different,
albeit unspecified, conception of what period of time is reasonable, and finds that
Drew is not entitled to an evidentiary hearing because it believes the record
establishes that he was not diligent within that period. I disagree. If I agreed with
the majority that sixteen months was too long to wait, I would at least conclude
that Drew's allegations are sufficient to entitle him to an evidentiary hearing on
the question of whether he actually did nothing for sixteen months.
As the majority indicates, we review a district court's denial of an
evidentiary hearing for an abuse of discretion. We have held that a district court
abuses its discretion by failing to hold an evidentiary hearing when the petitioner
alleges facts that, if true, would entitle him to relief. See, e.g., Kennedy v. Dugger,
933 F.2d 905, 909 (11th Cir. 1991); Yordan v. Dugger, 909 F.2d 474, 478-79
(11th Cir. 1990). That standard is the same whether the hearing is held on the
merits of the petitioner's claims or on the procedural impediments to review. See
Aron, 291 F.3d at 715 (noting that the petitioner's procedural claim would "entitle
him to relief in the form of a timely petition" and finding that the district court
abused its discretion in failing to hold an evidentiary hearing).
The magistrate's report did not acknowledge Drew's claim that he had not
received a copy of the order dismissing his petition, writing only that "Drew
allowed more than a year to elapse before he returned to the state forum and
attempted to exhaust his unexhausted claims . . . ." Magistrate's Report and
Recommendation at 10. As a result, the report was concerned not with whether
Drew had been diligent in inquiring about the status of his case, but with whether
he diligently followed up on the order of dismissal, assuming he received it shortly
after it was entered on March 28, 1995. (25) In his objections to that report, Drew
therefore sought to make clear that he did not receive a copy of the order until
February 20, 1996, attaching a prison official's response to his mail record request
showing no incoming mail from the district court after March 13, 1995. Drew also
stated in his objections that he wrote "several letters of inquiry" and that the clerk
"ignored, or disregarded the 'Status Checks' on Petitioner's case for a while" until
the docket report was sent on January 24, 1996.
The majority recognizes that Drew intended the prison mail record to
support his claim that he did not receive timely notice of the district court's order
of dismissal, rather than that he diligently monitored the status of his case. But the
majority argues nonetheless that an evidentiary hearing could not help him
because "the same document that would support the claim that he did not receive
the order would almost certainly defeat any claim that he sent repeated letters to
the Clerk of the Court." That is incorrect. The majority simply assumes that Drew
would be unable to explain any omissions from the list of legal mail or adduce any
proof that he made other inquiries. (26) It is important to bear in mind that Drew had
only ten days to respond to the magistrate's report, which recommended
dismissing his petition for a different reason than the one the majority now
considers dispositive. We simply don't know what Drew could prove if he had
knowledge of what he needed to prove and more than ten days in which to gather
his proof.
The majority also faults Drew for not proffering all the evidence that he
would present if his request for an evidentiary hearing were granted. But that is
not what the law requires. It is the allegations that determine whether there should
be an evidentiary hearing, and it is in that hearing that the petitioner is required to
furnish proof. See Aron, 291 F.3d at 715 n. 6. Drew alleges that he sent several
"letters of inquiry" to the clerk of the court, and that his "status checks" were
ignored. If he could prove that he did so, he would be entitled to relief even on the
majority's theory of the case. Accordingly, the majority should have found that
the district court abused its discretion in failing to hold an evidentiary hearing.
IV. Conclusion
The majority's erroneous preoccupation with events predating AEDPA's
enactment prevents it from even considering the real issue in this case. The only
time Drew could possibly toll is the time the state courts spent adjudicating his
third Rule 3.850 motion, because that is only time in the long course of this case
that there was a statute of limitations to toll. But the majority has nothing to say
about this period. It does not consider whether Drew was diligent during the time
he seeks to toll, but as discussed above, that it is clearly the relevant question to
ask about his diligence. See Brackett v. United States, 270 F.3d 60, 71 (1st Cir.
2001) (candidate for equitable tolling must "act[] with 'reasonable diligence
throughout the period he seeks to toll.'" (emphasis added) (citation omitted));
Green v. United States, 260 F.3d 78, 81 (2d Cir. 2001) (same). The majority also
does not consider that Drew was in state court because the district court instructed
him to exhaust his remedies there, without giving him the opportunity to proceed
in 1995 with only his exhausted claims. (27) Nor does it consider that the State,
having argued in federal court that Drew would not be procedurally barred from
refiling in state court, reversed its position in the state forum and asserted that
Drew's Rule 3.850 motion was procedurally barred both as successive and
untimely. (28) And it does not consider that the state proceedings took longer than
AEDPA's newly enacted limitation period, in part because the State apparently
asked for repeated extensions of time to file while the statute ran. (29)
The Supreme Court has admonished that procedural rules do not exist to
"'trap the unwary pro se prisoner.'" Slack v. McDaniel, 529 U.S. 473, 487 (2000)
(quoting Rose v. Lundy, 455 U.S. 509, 520 (1982)). The majority pays lip service
to this principle while retroactively imposing an obstacle course so complex (and
in which the obstacles shift in mid-course) that the outcome was a foregone
conclusion. Having ignored everything possibly relevant to Drew's equitable
tolling claim, the majority denies relief on the ground that Drew did not--but in
any event, is not entitled to--prove that he complied with a standard that did not
exist at the time he allegedly failed to comply with it. I dissent.
FOOTNOTES
*. Honorable William C. O'Kelley, U.S. District Judge for the Northern
District of Georgia, sitting by designation.
1. Rule 3.850 establishes that "[a] second or successive motion may be
dismissed if the judge finds that it fails to allege new or different grounds for
relief and the prior determination was on the merits or, if new and different
grounds are alleged, the judge finds that the failure of the movant or the attorney
to assert those grounds in a prior motion constituted an abuse of the procedure
governed by these rules." Fla. R. Crim. P. 3.850(f).
2. Treating a finding regarding diligence as a finding of fact is consistent
with the approach taken by the majority of the circuits in both habeas corpus
proceedings and other contexts. See, e.g., Montenegro v. United States, 248 F.3d
585, 591 (7th Cir. 2001), overruled on other grounds by Ashley v. United States,
266 F.3d 671 (7th Cir. 2001); Migis v. Pearle Vision, Inc.,
(5th Cir. 1998); Suggs v. Servicemaster Educ. Food Mgmt., 72 F.3d 1228, 1233
(6th Cir. 1996); Windsor Mount Joy Mut. Ins. Co. v. Giragosian, 57 F.3d 50, 55-56 (1st Cir. 1995); Gaw v. Comm'r of Internal Revenue, 45 F.3d 461, 465 (D.C.
Cir. 1995); United States v. Lewis, 980 F.2d 555, 561 (9th Cir. 1992); Whaley v.
Rodriguez, 840 F.2d 1046, 1051-52 (2d Cir. 1988). But cf. Martinez v. Sullivan,
881 F.2d 921, 926 (10th Cir. 1989) (holding that ultimate question of whether
state acted diligently in trying to obtain presence of declarant for trial testimony
was a mixed question of law and fact).
3. Contrary to the reading offered by the dissent, Knight is clearly
distinguishable. In that case, we held that a petitioner was entitled to equitable
tolling of the AEDPA's statute of limitations because, despite his diligence, he
did not learn about the state court's disposition of his state habeas corpus petition
until eighteen months after the petition had been denied. At the time that he filed
his motion for discretionary review of his state petition in the Supreme Court of
Georgia, "Knight asked the clerk of the court when he could expect a ruling. He
was informed that he would be notified as soon as a decision was issued." -- F.3d
at --. When more than a year had passed after he had made his initial inquiry and
been assured that he would receive notification from the Clerk, Knight again
contacted the Clerk for information, at which time he found out that the petition
had been denied eighteen months earlier. In holding that Knight was entitled to
equitable tolling, a panel of this Court explained that "[i]t is understandable that
Knight did not make any inquiries until February of 1998 because the Georgia
Supreme Court clerk had assured him that he would be notified as soon as a
decision was made." Id. at -- (emphasis added). The Court went on to note "that
not in every case will a prisoner be entitled to equitable tolling until he receives
notice. Each case turns on its own facts. In this case Knight was assured that the
court would contact him, then demonstrated diligence in pursuing information
when it did not do so." Id. Unlike Knight, Drew did not contact the Clerk's
office at or near the time that he filed his habeas corpus petition and, most
importantly, he received no assurances from the Clerk on which to rely. Drew
simply waited sixteen months before taking any steps to learn about his case. On
these facts, as opposed to those in Knight, the district court did not clearly err in
finding a lack of the diligence required to allow equitable tolling.
4. The dissent offers only two arguments in support of the contention that the
district court committed clear error. First, the dissent faults the magistrate judge
for overlooking Drew's claim regarding the delay in receiving notice of the
dismissal of his petition. While we have no reason to conclude that the
magistrate judge overlooked the alleged delay merely because she failed to
mention it explicitly in the Report and Recommendation, we also note that Drew
included absolutely no supporting evidence for this claim in his submission to the
magistrate judge. Notably, the prison mail log, which Drew claims supports his
allegation, was never offered as evidence to the magistrate judge, but rather was
proffered only when Drew objected to the magistrate judge's Report and
Recommendation.
Likewise, we have no basis to hold that the district court either ignored this
document or erred in considering it. The district court's order adopting the Report and
Recommendation does not indicate whether the court exercised its discretion to accept the
prison mail log as supplemental evidence. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)
(both stating that, as part of de novo review of magistrate judge's recommendation, district
judge "may . . . receive further evidence"). In light of Drew's failure to present the evidence to
the magistrate judge, it would not have been an abuse of discretion for the district court to
decline to consider the evidence at all. See Wofford v. Wainwright, 748 F.2d 1505, 1507 (11th
Cir. 1984) (explaining that Section 636(b)(1) "confers broad discretion to the district judge to
hear or dispense with" additional evidence). Of course, for the reasons we discuss, it would
have been completely reasonable for the district court to find the prison log unhelpful to Drew
in any event.
The dissent also suggests that we should consider statistics indicating that, on average,
federal courts do not dispose of habeas corpus petitions in significantly less time than it took the
district court to dismiss Drew's first petition in this case. No such statistics were ever presented
to the magistrate judge or the district court, or, for that matter, to this Court, and we are
reluctant indeed as an appellate court to engage in de novo fact-finding ourselves.
5. In addition to arguing that the district court committed clear error, the
dissent says that the diligence requirement of equitable tolling should not apply
to Drew since any dilatory behavior occurred prior to the effective date of the
AEDPA's statute of limitations. As an initial matter, we disagree with the
assertion that Drew's dilatory behavior was confined entirely to the period before
AEDPA was enacted, as his sixteen-month delay in filing the third 3.850 motion
delayed the filing of the instant habeas petition until more than seventeen months
after the AEDPA became law and more than five months after the statute of
limitations had expired. Moreover, the dissent's position ignores the crucial
distinction between holding that a petition is time-barred under a statute of
limitations and declining to grant the extraordinary judicial remedy of equitable
tolling. While it is true that a court cannot retroactively punish Drew under the
AEDPA's statute of limitations for his failure to pursue the case in a timely
manner, see, e.g., Wilcox v. Fla. Dep't of Corr., 158 F.3d 1209, 1211 (11th Cir.
1998), it is equally true that Drew's lack of diligence bars us from reaching out
and granting the rare and extraordinary remedy of equitable tolling.
In asking the court to equitably toll the statute of limitations, Drew
requests a judicially-crafted remedy that has always been reserved only for
parties who have pursued their rights diligently and whose untimeliness is due to
factors entirely beyond their control. Indeed, the requirement has its roots in the
English courts of chancery, which granted equitable relief to civil fraud plaintiffs
who did not learn of defendants' fraudulent actions until after the statute of
limitations had run. As early as 1714, these courts made it clear that such relief
was available only if the plaintiff could not have discovered the fraud "with
proper diligence." See Gibbs v. Guild, 8 Q.B.D. 296, 304-05 (Queen's Bench
1881) (discussing cases). As one of our sister circuits has explained in
discussing the English roots of equitable tolling, in order "to win the chancellor's
favor, the suitor would have to show by clear and convincing proof that he had
been diligent and faultless in pursuit of his rights." Ohio v. Peterson, Lowry,
Rall, Barber & Ross, 651 F.2d 687, 692-93 (10th Cir. 1981). When the Supreme
Court of the United States first embraced the concept of equitable relief from a
statute of limitations in Bailey v. Glover, 88 U.S. (21 Wall.) 342, 348, 22 L. Ed.
636 (1874), it explained that such relief would be available only "where the party
injured by the fraud remains in ignorance of it without any fault or want of
diligence, or care on his part."
Since the middle of the twentieth century, equitable tolling has been
expanded to cover not just the belated discovery of a fraud or other cause of
action, but also late filing due to misconduct by the defendant or other
circumstances beyond the plaintiff's control. Beginning with the first such case,
Order of R.R. Telegraphers v. Ry. Express Agency, 321 U.S. 342, 64 S. Ct. 582,
88 L. Ed. 788 (1944), which held that a six-year statute of limitations did not bar
an action because the plaintiff was seeking administrative relief during the six
years, courts have always limited such relief only to parties who have been
diligent at all times. The Supreme Court explained in R.R. Telegraphers that
tolling was proper because "while the litigation shows no evidence of reckless
haste on the part of either party, it cannot be said that the claims were not timely
pursued. Regrettable as the long delay has been it has been caused by the
exigencies of the contest, not by the neglect to proceed." Id. at 349, 64 S. Ct. at
586. As best we can tell, this principle has never been abandoned. See, e.g.,
Irwin, 498 U.S. at 96, 111 S. Ct. at 457-58 ("We have allowed equitable tolling in
situations where the claimant has actively pursued his judicial remedies . . . . But
the principles of equitable tolling . . . do not extend to what is at best a garden
variety claim of excusable neglect."); Baldwin County Welcome Ctr. v. Brown,
466 U.S. 147, 151, 104 S. Ct. 1723, 1726, 80 L. Ed. 2d 196 (1984) ("One who
fails to act diligently cannot invoke equitable principles to excuse that lack of
diligence."); Burnett v. N.Y. Cent. R.R., 380 U.S. 424, 429, 85 S. Ct. 1050, 1055,
13 L. Ed. 2d 941 (1965) (allowing equitable tolling where "plaintiff has not slept
on his rights but, rather, has been prevented from asserting them"); Nat'l Cement
Co. v. Fed. Mine Safety & Health Review Comm'n, 27 F.3d 526, 530-31 (11th
Cir. 1994) (discussing requirement of due diligence for equitable tolling to
apply); Justice v. United States, 6 F.3d 1474, 1479 (11th Cir. 1993) (describing
due diligence as "necessary" for equitable tolling); Raziano v. United States, 999
F.2d 1539, 1541 (11th Cir. 1993) (emphasizing the "limited availability of
equitable tolling" and explaining that it is appropriate only when party has
exercised due diligence); Hamilton v. Gen. Motors Corp., 606 F.2d 576, 579 (5th
Cir. 1979) (holding equitable tolling inappropriate where plaintiff "did nothing
for several years" to pursue lawsuit).
As Justice Frankfurter explained in Holmberg v. Armbrecht, 327 U.S. 392,
66 S. Ct. 582, 90 L. Ed. 743 (1946), a laches case, equitable relief is limited to
diligent parties not because of the existence of any statutory requirements, but out
of recognition of "historic principles of equity in the enforcement of federally-created equitable rights," id. at 395, 66 S. Ct. at 584:
Traditionally and for good reasons, statutes of limitations are not
controlling measures of equitable relief. Such statutes have been
drawn upon by equity solely for the light they may shed in
determining that which is decisive for the chancellor's intervention,
namely, whether the plaintiff has inexcusably slept on his rights so
as to make a decree against the defendant unfair. "There must be
conscience, good faith, and reasonable diligence, to call into action
the powers of the court." A federal court may not be bound by a
State statute of limitation and yet that court may dismiss a suit where
the plaintiffs' lack of diligence is wholly unexcused; and both the
nature of the claim and the situation of the parties was such as to call
for diligence. A suit in equity may fail "though not barred by the act
of limitations."
Id. at 396, 66 S. Ct. at 584 (quoting McKnight v. Taylor, 42 U.S. (1 How.) 161,
168, 11 L. Ed. 86 (1843)) (additional quotations and citations omitted).
The dissent fails to recognize that, by asking for equitable tolling, Drew
seeks the very kind of equitable relief that has always been reserved only for
parties who could not have prevented their late filings. Because Drew failed to
pursue his case for a period of sixteen months, we cannot say that he has acted
with the "conscience, good faith, and reasonable diligence" necessary "to call
into action the powers of the court." This conclusion is based on the
longstanding, firmly rooted principle that a court cannot grant equitable tolling
unless it is satisfied that the party seeking such relief has acted with diligence.
The diligence requirement that we recognize has been imposed for centuries by
judges applying principles of equity jurisprudence. The dissent may disagree
with the district court's determination that Drew's sixteen-month delay
constituted a lack of diligence, but we are in no position to reverse that
determination absent clear error. In light of this fact pattern and the findings of
the trial court, we are bound to hold that Drew's lack of diligence unambiguously
precludes the rare and extraordinary remedy of equitable tolling.
Confronted with the long line of cases requiring diligence before a statute
of limitations can be equitably tolled, the dissent points to no case law supporting
its contention that diligence is not necessary. Nothing in the recent opinion in
Aron v. United States, -- F.3d -- (11th Cir. 2002), changes the longstanding
diligence obligation. In Aron, a panel of this Court held that it would be
improper to apply retroactively the AEDPA's rule that the statute of limitations
for a 28 U.S.C. § 2255 motion to vacate, set aside, or correct a sentence runs
from, inter alia, "the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due diligence." 28
U.S.C. § 2255(4). Because this statutory time limit did not exist before the
AEDPA was enacted on April 24, 1996, the panel explained, logically, that
petitioners were not obligated to comply with the statute by exercising due
diligence before its enactment. Unlike this statutory diligence requirement,
however, equitable tolling has always required a showing of diligence. While we
could not require a petitioner to comply with a statutory mandate that did not
exist at the time of his conduct, there is nothing at all impermissible or retroactive
about requiring a petitioner seeking the equitable relief of tolling to comply with
judicially-crafted standards that were long and firmly established by the time of
the conduct in question. Furthermore, as Judge Carnes pointed out in his
concurring opinion in Aron, the portions of the majority opinion upon which the
dissent in this case relies are plainly dicta because the facts of Aron did not
involve a lack of diligence before the enactment of the statute. See Browning v.
AT&T Paradyne, 120 F.3d 222, 225 n.7 (11th Cir.1997) ("Since this statement
was not part of any holding in the case, it is dicta, and we are not bound by it.")
(citation omitted). Indeed, to the contrary, the petitioner in Aron displayed
diligence both before and after the enactment of the statute, while in this case
Drew showed precious little diligence at any time.
6. Because Drew's lack of diligence would make him ineligible for equitable
tolling even if he could prove that he did not receive the district court's order,
this case is wholly distinguishable from those in which evidentiary hearings were
granted for the purpose of determining whether or not a petitioner received a
relevant order. See, e.g., Phillips, 216 F.3d 508. Again, even if Drew could
show that he did not receive the order, he has not acted with sufficient diligence
to merit equitable tolling.
7. The dissent suggests that the Drew should have received an evidentiary
hearing because he alleged that he sent letters to the Clerk's office and pursued
his case diligently. This suggestion ignores our clear precedent establishing that
such allegations are not enough to warrant an evidentiary hearing in the absence
of any specific factual proffer or evidentiary support, especially when the
evidence that has been presented undermines the petitioner's claim. See, e.g.,
Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) ("A petitioner is not
entitled to an evidentiary hearing . . . 'when his claims are merely conclusory
allegations unsupported by specifics or contentions that in the face of the record
are wholly incredible.'") (quoting Stano v. Dugger, 901 F.2d 898, 899 (11th Cir.
1990) (en banc)) (internal quotations omitted) (emphasis in original). In
asserting that the district court should have granted an evidentiary hearing, the
dissent disregards the purpose and deferential nature of the abuse of discretion
standard. "As we have observed, the abuse of discretion standard of review
recognizes that for the matter in question there is a range of choice for the district
court and so long as its decision does not amount to a clear error of judgment we
will not reverse even if we would have gone the other way had the choice been
ours to make." McMahan v. Toto, 256 F.3d 1120, 1128 (11th Cir. 2001).
8. Drew appears to suggest that the time-bar problem could have been avoided if the
district court had retained jurisdiction over his first petition and held that petition in abeyance
while the unexhausted claims were pursued on remand to the state court. Some courts have
endorsed this approach. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002); Delaney v.
Matesanz, 264 F.3d 7, 14 n.5 (1st Cir. 2001); Zarvela v. Artuz, 254 F.3d 374, 380-82 (2d Cir.
2001); Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000); Calderon v. United States Dist. Ct.,
134 F.3d 981, 988 (9th Cir. 1998) (all endorsing retention of jurisdiction during remand over
petitions containing both exhausted and unexhausted claims). But see Graham v. Johnson, 168
F.3d 762, 778-80 (5th Cir. 1999) (holding that mixed petitions should be dismissed, not held in
abeyance). See also Walker, 533 U.S. at 182-83, 121 S. Ct. at 2130 (Stevens, J., concurring)
(suggesting that equitable tolling should be available to petitioners who acted diligently in filing
for post-conviction relief but whose petitions were dismissed as untimely because prior federal
habeas petitions did not toll statute of limitations). Whatever the merits of the approach, the
question need not be addressed here because equitable tolling is inappropriate in light of Drew's
own lack of diligence. In the end, it was Petitioner's delay, not the fact that the district court
dismissed the first petition, that rendered the instant petition untimely.
9. The Irwin Court stated: "We have generally been much less forgiving in
receiving late filings where the claimant failed to exercise due diligence in
preserving his legal rights." 498 U.S. at 96 (citation omitted) (emphasis added).
Clearly, it makes sense to refer to a need to "preserve" one's legal rights only
when they are at risk of expiration. When no statute of limitations is running, a
claimant does not have to do anything to "preserve" his or her rights.
10. That is why the historical survey offered by the majority in footnote 5 is
beside the point. No one has questioned whether equitable tolling has always
imposed an attendant obligation to make a diligent effort to comply with the
statute of limitations; the only question is whether the claimant may sensibly be
considered subject to that obligation prior to the enactment of the statute of
limitations that he later seeks to toll. The majority cites one case, Holmberg v.
Armbrecht, 327 U.S. 392 (1946), for the proposition that "equitable tolling" is
not limited to diligent parties "because of the existence of any statutory
requirements . . . ." The flaw in the majority's argument is that Holmberg was
not an equitable tolling case; it was a case in which the defendant asserted a
laches defense. Since the point of laches is that it may function to bar suit even
in the absence of a statute of limitations, obviously a laches defense is not tied to
the existence of a statute of limitations. After the passage quoted by the majority,
the Holmberg Court wrote: "Equity has acted on the principle that 'laches is not
like limitation, a mere matter of time; but principally a question of the inequity of
permitting the claim to be enforced--an inequity founded upon some change in
the condition or relations of the property or parties.'" 327 U.S. at 396 (quoting
Galliher v. Adwell, 145 U.S. 368, 373 (1892)). Surely the majority cannot mean
to suggest that Drew's alleged lack of diligence rises to a level that would
support a laches defense--particularly when, in state court, Florida reversed its
position on the issue of procedural bar and then asked for repeated extensions of
time to file while the statute was running on Drew's ability to protect his rights in
federal court. If we were really to balance the equities in this case, we would find
that the change in conditions--the enactment of AEDPA and Florida's reversal
of its position in state court and requests for extensions of time--prejudiced
Drew, and therefore supports his argument for equitable relief. In any event,
Holmberg offers no support for the majority's novel argument that the remedy of
equitable tolling of a statute of limitations is not tethered to the existence of that
statute of limitations.
11. We had already answered the question the same way for federal prisoners
in Goodman v. United States, 151 F.3d 1335 (11th Cir. 1998).
12. In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the close
of business on September 30, 1981.
13. Contrary to the majority's assertion that Drew's alleged "lack of diligence
ultimately prevented [him] from filing the instant federal petition" on time, there
is in fact no certainty that, had Drew done everything the majority demands of
him, he would have been able to file his federal petition within the one-year
limitation period. Since the time it takes to reach a decision can vary widely,
often depending on factors beyond the individual case (such as the court's
workload and schedule), there is no guarantee that Drew would have been able to
file his federal petition on time merely by commencing his state proceedings
earlier. Had the state courts taken longer to adjudicate his motion, he might still
have been unable to file his federal petition within AEDPA's one-year period.
Thus, we cannot say whether the delay in Drew's receipt of the order of dismissal
was a "but for" cause of his inability to file his federal petition on time. I also
note that, had the state courts been able to adjudicate Drew's motion more
quickly--for example, had the State not requested and received three extensions
of time to file--Drew would have been able to file the present federal petition on
time notwithstanding the delay in the receipt of the order dismissing the first
federal petition.
14. I also note that the State, having urged the district court to require Drew to
exhaust state remedies (that it then argued in state court were procedurally
barred)--and, as Drew points out, having requested and received three extensions
of time in state court--may not now claim undue prejudice from our decision to
grant equitable tolling. See Baldwin County Welcome Ctr. v. Brown, 466 U.S.
147, 152 (1984) ("absence of prejudice is a factor to be considered in determining
whether the doctrine of equitable tolling should apply once a factor that might
justify such tolling is identified"); Raziano v. United States, 999 F.2d 1539, 1542
(11th Cir. 1993) (same).
15. It appears that the magistrate's report (which the district court adopted)
either simply overlooked or plainly ignored Drew's claim that he did not receive
a copy of the order of dismissal. The magistrate wrote that "Drew allowed more
than a year to elapse before he returned to the state forum and attempted to
exhaust his unexhausted claims . . . ." Magistrate's Report and Recommendation
at 10. Although the majority suggests that it can find no "clear error" in the
district court's conclusion that Drew was not diligent, it is hard to imagine a
clearer error than the court ignoring the fact that Drew did not receive timely
notice of the court's dismissal.
I also note that the magistrate, like the majority, held Drew to AEDPA's
standards before it was enacted: "Thus, by the time Drew acted on this court's
dismissal without prejudice of his first § 2254, a period of time longer than the
AEDPA's limitations period had already passed . . . . The new one-year
limitations period in the AEDPA is aimed at curtailing just such dilatory
practices." Id. In other words, the magistrate observed that AEDPA was enacted
after the alleged "dilatory practice" in this case, but nonetheless ruled against
Drew because, before AEDPA's enactment, "a period of time longer than the
AEDPA's limitations period had already passed." In my view, that is a legal
error that would vitiate the district court's factual finding even if that finding
were not itself clearly erroneous.
16. The majority writes that Drew's claim of diligence rests on "one letter."
That cannot be right. The majority itself notes that two letters (one to the clerk,
and one to the presiding judge) were documented in response to a request Drew
filed with prison officials; moreover, Drew's letter of January 30 explains that he
had just received a docket report indicating that his case was dismissed in
response to a letter of inquiry sent on January 18, 1996. In other words, even in
the absence of an evidentiary hearing, there is reason to believe that Drew sent at
least three letters regarding the status of his case.
17. We have previously held that equitable tolling is appropriate where there
has been a delay in the prisoner's receiving notice of a court's resolution of his or
her case. See Knight v. Schofield, ___ F.3d ___ (11th Cir. 2002).
18. If litigants were required to inquire about the status of their case before
giving the court a reasonable period to reach a decision and notify them of the
result, court personnel would be faced with a substantial administrative burden.
For example, in the year 2000, 58,257 prisoner petitions were filed in the U.S.
district courts. See John Scalia, U.S. Dep't of Justice, Office of Justice Programs,
Bureau of Justice Statistics, Prisoner Petitions Filed in U.S. District Courts, 2000,
with Trends 1980-2000 1 (2002). Under the majority's approach, the failure of
all of these prisoners to make inquiries about the progress of their cases subjects
them to a risk of being found indiligent and thus ineligible for equitable tolling
should any statute of limitations problem subsequently arise. Were all of these
prisoners to do what the majority says Drew should have done--send letters,
make phone calls, and have relatives go to the court personally to make
inquiries--the court clerks would be considerably busier than they already are.
And of course, since equitable tolling may apply to a wide variety of lawsuits, the
effect of the majority's reasoning is not confined to petitions filed by prisoners.
19. The majority does not acknowledge that Knight waited considerably
longer than Drew before contacting the court to inquire about his case. The
majority does note that two other circuits have also found equitable tolling
appropriate where the petitioner receives late notice of the disposition. See
Woodward v. Williams, 263 F.3d 1135, 1143 (10th Cir. 2001); Phillips v.
Donnelly, 216 F.3d 508, 511 (5th Cir. 2000). Nonetheless, the majority argues
that the present case is distinguishable because Drew did not diligently attempt to
ascertain the status of his petition. However, the Tenth and Fifth Circuit cases
cited by the majority report no efforts whatsoever by these petitioners to ascertain
the status of their petitions. Thus, if Drew's case is distinguishable, it is
distinguishable on the ground that Drew did inquire with the court regarding the
status of his case--and sooner than the petitioner did in Knight.
20. If it had been the first petition that took fifteen months to resolve, sixteen
months would not seem so long, because Drew would have waited only one
month longer than the time the court had actually spent adjudicating the petition.
Or suppose that when Drew inquired after sixteen months, he was informed that
the court had not yet reached a decision, and the court then issued its decision a
month later. I do not believe the majority would construe Drew's failure to have
made inquiries before sixteen months had elapsed, even though the court had not
yet reached a decision, as a lack of diligence that would preclude equitable
tolling in the future. But in both of these hypotheticals, Drew does exactly what
he did in this case; as I shall explain, the only difference in these examples is that
the court resolves the case in a time closer to the average time the federal district
courts spend on habeas petitions from state prisoners. But if we would not find
Drew dilatory when the timing of the court's decision making was closer to the
average and thus more in line with the timing of Drew's inquiry, we cannot find
him dilatory just because the district court happened to resolve his first petition
more quickly.
21. Among the sample cases in the study, those involving a claim of
prosecutorial misconduct took on average 608 days to resolve; those involving
Fifth Amendment claims took 560 days; those involving ineffective assistance of
counsel claims took 555 days. Id. at 23. Drew's petition included all three kinds
of claims. While petitions dismissed on procedural grounds were generally
resolved in less time than those decided on the merits, a petitioner of course
cannot know prospectively on what basis the court will rule.
22. Of course, the most reasonable assumption for a petitioner who has not
heard anything about the status of his case within a couple of months after the
average date on which a court would have reached a decision is that his petition
is taking longer than average to resolve, not that the court has neglected to inform
him about the disposition of his case. For example, ten percent of the habeas
cases in the Bureau of Justice Statistics study took more than 761 days--in other
words, over two years--to resolve. Id. at 20.
23. Again, the majority claims that it can find no "clear error" in the district
court's determination that Drew was not diligent. But as noted earlier, see supra
note 7, the magistrate's report (which the district court adopted) overlooked or
ignored Drew's claim regarding the delay in receiving the notice of dismissal.
That was clear error. But rather than remanding for a consideration of the actual
facts by the district court, the majority then engages in a "de novo review of the
facts," deciding that, even if Drew did not receive any notice about the
disposition of his case, he still was not diligent because he did not inquire about
the status of his case soon enough. The majority's conclusion, offered with no
reasoning, is clearly erroneous because, as I explained in the text, the timing of
Drew's inquiry was in line both with the average time federal courts spent on
similar habeas petitions and with the general progress of his own federal
proceedings.
24. In other words, what Drew must prove in order to be entitled to equitable
tolling has been a moving target. For the magistrate, it may have been enough for
Drew to show that he did not receive the order, but the majority thinks Drew
should have offered proof of his efforts to obtain a copy of the order. I also note
that the State did not raise the question of Drew's diligence when it discussed the
timeliness of his petition.
25. For example, Drew may not have marked the letters of inquiry as legal
mail. The mailroom documentation on which the majority relies is clearly
incomplete, because it makes no mention of the January 18 letter, or of the
January 24 docket report (which was also attached as an exhibit to Drew's
objections), or even of the copy of the order of dismissal, which Drew notes was
sent through the regular (as opposed to legal) mail. We also do not have a copy
of the actual mail record; rather, the "record" we possess is a handwritten
response on Drew's "Inmate Request" form.
26. The Ninth Circuit has held that equitable tolling is appropriate where a
district court, in violation of Rose v. Lundy, 455 U.S. 509, 510 (1982), dismisses
a partially unexhausted habeas petition outright without providing the petitioner
an opportunity to amend or resubmit the petition to present only the exhausted
claims, with the result that the post-exhaustion federal petition is untimely under
AEDPA. See Tillema v. Long, 253 F.3d 494, 503 (9th Cir. 2001). Moreover, as
the majority observes in footnote 8, the timeliness problems in this case could
have been avoided had the district court retained jurisdiction over Drew's first
petition and held that petition in abeyance while the unexhausted claims were
pursued in the state court--an approach that a number of circuits have endorsed.
See Delaney v. Matesanz, 264 F.3d 7, 14 n.5 (1st Cir. 2001); Zarvela v. Artuz,
remand over petitions containing both exhausted and unexhausted claims);
Freeman v. Page, 208 F.3d 572, 577 (7th Cir. 2000) (same); Calderon v. United
States Dist. Ct., 134 F.3d 981, 988 (9th Cir. 1998) (same); but see Graham v.
Johnson, 168 F.3d 762, 778-80 (5th Cir. 1999) (holding that mixed petitions
should be dismissed, not held in abeyance).
27. As the federal magistrate wrote in her report, the State specifically argued
that it would not be futile to require Drew to refile in state court "because Florida
authorities hold that denials of post-conviction motions on the ground of facial
insufficiency are without prejudice to the movant's ability to refile his claims."
Magistrate's Report and Recommendation at 6 (citing Flint v. State, 561 So. 2d
1343, 1344 (Fla. Dist. Ct. App. 1990); Long v. State, 555 So. 2d 434, 435 (Fla.
Dist. Ct. App. 1990)). In its brief to this Court, Florida suggests that its about-face in state court is explained by Drew's unanticipated omission of an allegation
from his third state motion that the facts on which it was based were previously
unknown to him or his attorney and could not have been ascertained by the use of
due diligence--an allegation that would have saved his motion from the
timeliness requirements of Rule 3.850. But that is clearly not what the State
argued in the federal district court hearing Drew's first petition; it argued that a
new state motion would not be procedurally barred because Drew's previous
motion had been dismissed on grounds of "facial insufficiency." Moreover, even
if the omission of Drew's allegation could explain the State's new position on the
timeliness of his motion, it does not explain why the State changed its mind about
whether a renewed motion would be procedurally barred as successive.
The change in Florida's position made all the difference to the timeliness
of Drew's federal petition. AEDPA was enacted the day after Drew filed his
state motion. If the court had not determined that the motion was procedurally
barred as untimely, Drew would have been entitled to statutory tolling of
AEDPA's limitation period while the motion was pending in state court.
28. Drew contends that the progress of the state proceedings was impeded
because the State requested and received three extensions of time to file a
response to his motion for rehearing. According to Drew, on September 17,
1996, the trial court directed the State to respond to his motion for rehearing, but
as a result of the extensions granted, the State did not file its response until
February 24, 1997--over five months later.
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- U.S. Court of Appeals for the Fifth Circuit - Raymond Phillips, Petitioner-Appellant, v. John F. Donnelly, Jr.; Michael C. Moore, Attorney General, State of Mississippi, Respondents-Appellees., 216 F.3d 508 (5th Cir. 2000)
- U.S. Court of Appeals for the Fifth Circuit - Gary Graham, Now Known as Shaka Sankofa, Petitioner-Appellant, v. Gary L. Johnson, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee., 168 F.3d 762 (5th Cir. 1999)
- U.S. Court of Appeals for the Seventh Circuit - Willie Freeman, Petitioner-Appellant, v. James H. Page, Warden, Stateville Correctional Center, Respondent-Appellee., 208 F.3d 572 (7th Cir. 2000)
- U.S. Court of Appeals for the Seventh Circuit - Billy Ray Ashley, Petitioner-Appellant, v. United States of America, Defendant-Appellee., 266 F.3d 671 (7th Cir. 2001)
- U.S. Court of Appeals for the Ninth Circuit - James Tillema, Petitioner-Appellant, v. Miles Long, Warden; Frankie Sue Del Papa, Respondents-Appellees., 253 F.3d 494 (9th Cir. 2001)
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