United States District Court, M.D. Florida, Jacksonville Division
ORDER FOLLOWING LIMITED REMAND
TIMOTHY J. CORRIGAN UNITED STATES DISTRICT JUDGE.
protracted history of this capital habeas case is set forth
in this Court's Orders (Docs. 42, 107, 141). The Court
will recite only the history relevant to the Eleventh
Circuit's limited remand regarding Petitioner's
entitlement to equitable tolling.
case was opened on March 24, 2003, when Mary Catherine
Bonner, Esquire, filed an urgent motion for pre-petition
appointment on behalf of Petitioner. Doc. 1. Officially
appointed by the Court on March 26, 2003,  Ms. Bonner did
not file the habeas corpus Petition until almost exactly one
year later on March 22, 2004. Docs. 4, 12. In the meantime,
Petitioner's federal one-year limitations period had
expired on June 18, 2003.
the Court dismissed this case with prejudice after finding
the Petition was untimely filed and Petitioner was not
entitled to equitable tolling. Doc. 42. The Court
subsequently vacated that Order. Doc. 62. After hearings,
supplemental briefing, and an evidentiary hearing, on
February 10, 2009, the Court concluded that Ms. Bonner's
egregious attorney misconduct, that was not previously
presented as a reason for equitable tolling, warranted
application of that extraordinary remedy. Doc. 107.
Subsequently, the Court denied the Petition on the merits in
a 66-page Order. Doc. 141.
parties filed cross-appeals. Docs. 145, 149. The Eleventh
Circuit remanded the case to this Court “to make
additional and detailed findings of fact concerning
Thomas's claim to equitable tolling, including exactly
what may have happened and, most importantly, why counsel did
not timely file this § 2254 petition.” Thomas
v. Attorney Gen., 795 F.3d 1286, 1287 (11th Cir. 2015).
The Eleventh Circuit also instructed this Court “to
apply these findings of fact to the changing landscape in the
law of equitable tolling, found in the Supreme Court and [the
Eleventh Circuit's] recent cases.” Id.
(citing Holland v. Florida, 560 U.S. 631 (2010);
Maples v. Thomas, 565 U.S. 266 (2012); Cadet v.
Fla. Dep't of Corr., 742 F.3d 473 (11th Cir. 2014),
vacated, Cadet v. Fla. Dep't of Corr.,
853 F.3d 1216 (11th Cir. 2017), petition for cert.
filed, (U.S. July 25, 2017) (No.
17-6146)). The Eleventh Circuit summarized its remand
[T]he district court must provide a more thorough account of
the facts of this case, including those which shed light on
Bonner's decisionmaking, her understanding of the
AEDPA filing deadlines, her mental health, and
any actions Thomas may have taken to ensure the timeliness of
his petition. After laying out the basic facts of this case
in greater detail-most particularly, why Bonner failed to
file the petition in a timely manner-the district court must
consider whether those facts support Thomas's claim to
equitable tolling in light of the changing landscape of this
law. Specifically, the district court must tell us whether
the facts in this case show that Bonner effectively abandoned
Thomas by her conduct, as the concept of abandonment is
explicated in Holland II, Maples, and
Cadet, or whether Bonner's conduct otherwise
amounted to serious misconduct that constitutes an
Id. at 1296-97. The Circuit also directed “a
more comprehensive account of [Petitioner's] interactions
with Bonner prior to the filing of his petition, ” so
it could review whether Petitioner acted with reasonable
diligence. Id. at 1296.
Correspondence Between Petitioner and Ms. Bonner
the pendency of Petitioner's state court postconviction
proceedings, he actively sought federal representation.
Petitioner, through his then-girlfriend, Monica Sipple,
contacted every lawyer listed on the capital registry in
hopes of obtaining federal representation. Doc. 84 at 90
(Petitioner's evidentiary hearing testimony: “I
asked Ms. Sipple to e-mail and mail a bunch of attorneys. And
she went through the registry and just mailed the letter to
each and every one of them.”); see also Doc.
225-1 (Petitioner's affidavit: “I asked my
girlfriend at the time, Monica Sipple, to research attorneys
who may be able to represent me in my federal habeas
proceedings and she reached out to several
possibilities.”). After securing Ms. Bonner's
consent to represent him, he continued to correspond with her
both before and after her court appointment. On March 3, 2003,
before her court appointment, Ms. Bonner wrote to Petitioner
and explained that she asked Petitioner's state court
counsel (Mr. Westling) how much time Petitioner had left on
his AEDPA limitations period, but Mr. Westling did not know.
Doc. 102 at 6. She also wrote, “I believe that we must
take what was filed and file a Petition for Certiorari to the
United States Supreme Court in order to buy some time to file
the 2254. . . . This is an extremely complicated matter and
it is horrible when we have to litigate timeframes rather
than substance, but, alas, that is probably where we will
find ourselves.” Id. On March 19, 2003, also
before her court appointment, Ms. Bonner wrote to Petitioner:
I received your handwritten letter today and spent a good
deal of the day speaking with clerks and with the Federal
Public Defender for the Middle District of Florida trying to
get some guidance as to stopping the 2254 clock in your case.
If the Commission on Capital Cases' Website is correct
you have a few weeks. The FPD advised that my motion to be
appointed would probably not be acted upon quickly and that
you should file your own pro se 2254 and ask for my
appointment or at least the appointment of counsel.
what I propose:
1. You fill out the affidavit of Indigency and attach it to
the 2254 motion (enclosed)[.]
2. You do the best that you can on the 2255 [sic], explaining
the situation to them and at least copying the issues which
were raised in your 3.850 and ask for leave to amend after
appointment of counsel.
3. Send them the letter which is enclosed to the Court
indicating that I will accept appointment[.]
4. I am filing the enclosed motion asking to be appointed.
At least we will have tried to touch all bases. They are very
quick to criticize us for blowing timeframes.
Doc. 102 at 10.
Bonner advised Petitioner on March 26, 2003, that she had
been appointed to represent him. Doc. 102 at 13. On April 3,
2003, still prior to the expiration of the one-year
limitations period, Petitioner signed a habeas petition that
had been sent to him by Ms. Bonner. Doc. 225-1 at 3-4; Doc.
102 at 14-19; Doc. 84 at 105, 160-62. Because this Court had
appointed Ms. Bonner to represent Petitioner, he knew he
could not file the petition pro se. Doc. 225-1 at 4; Doc. 84
at 111. So, he instead sent it to Ms. Bonner for filing. Doc.
84 at 105-06, 162.
April 10, 2003, Ms. Bonner again wrote to Petitioner. In
pertinent part, she stated:
Don and I met yesterday and have come to the conclusion that
after a little further review, in all likelihood it would be
better to file a Petition for Certiorari with the United
States Supreme Court. I will notify the United States
District Court for the Northern District of Florida that I am
filing this and that I am not charging for the preparation of
it as I assured them that we were finished with the State
process. In the meantime we will be preparing the 2254 so
that if the Petition for Cert is denied, we will be ready to
file virtually immediately.
Doc. 102 at 20. Five days later, Ms. Bonner again wrote to
Petitioner and provided materially inaccurate information
regarding the expiration of the one-year limitations period:
I have been reading the hearing transcript and researching
the timeliness of the 2254 motion. From what we can ascertain
your 365 days for 2254 filing ran before
your 3.851 petition was filed-in that mess with counsel that
was none of your fault. I am in the process of reviewing all
of the timeframes and the substantive materials. Our first
hurdle may well be timeliness. Since it is already untimely,
we will give it another week or so of preparation time so
that we can present to the United States District Court the
strongest case and try to persuade them that there is every
reason to hear our arguments.
Doc. 102 at 21. As we now know, the limitations period had
not yet expired and Ms. Bonner waited well over a “week
or so” to actually file the Petition.
Bonner's letter of June 4, 2003, still before the
expiration of the limitations period, is heavily redacted,
but she stated that “a budget and a few other
things” had been filed, “but the substantive work
has not been completed.” Doc. 102 at 22-23. She assured
Petitioner: “We are working even if we are not writing
all of the time.” Id. at 23. Before she mailed
her next letter to Petitioner, the limitations period
28, 2003, Ms. Bonner wrote to Petitioner: “We are
shooting for a date in late August to file.” Doc. 102
at 25. She further stated, “As you know, the dates
under the AEDPA were gone long ago,  and we have made the
considered decision that to file a complete set of moving
papers is the way to go.” Id. On August 27,
2003, she sent Petitioner a letter with the following
I am enclosing two documents for you. Please fill them out as
directed below and send them back as soon as possible.
1. Petition under 28 USC § 2254. Look through it for
your information and place your signature on the last page.
Please return the last page.
2. Xerox of book with State Motion for Postconviction Relief.
Please fill in the form to the best of your ability. If you
do not remember dates, etc. we will find them. The only issue
on which we are proceeding is involuntariness of the plea. I
will send you a request for indigent status form later.
3. Unnotarized oath. Please sign and return.
Doc. 102 at 26.
months later, on March 22, 2004, Ms. Bonner finally filed the
Petition. Doc. 12. The date next to Petitioner's
signature on the Petition is April 3, 2003. Id. Of
course, if the Petition had been filed at or near April 3,
2003, it would have been timely.
21, 2004, Ms. Bonner wrote to Petitioner:
At this point I am not sure whether the girl sent you all of
our documents. Of course the State said that we were
untimely-big news. We had to investigate; we had to
follow your leads. Even if some went nowhere, we had to
have time to do it or you weren't getting representation.
Then I decided that we couldn't just stand on what they
will say is a weak argument so I reached out to certain
organizations which regularly join in amicus briefs. They
gave me favorable responses so I asked the judge if we could
have time to develop a Constitutional attack. He just granted
that until July 30. That is incredibly good news, so I am on
Sorry that I don't write more, but I am working on your
stuff. We are going to put on a sophisticated
presentation through I wish to lay the groundwork for an
attack on the limitations placed by Congress in the AEDPA.
Long road, but we have to do it.
I hope that all is well with you and I will keep you
Doc. 102 at 24 (emphasis added).
Pre-Remand Procedural History
Court first became aware of Petitioner's federal habeas
claims on March 24, 2003, when Ms. Bonner filed a motion
seeking to be appointed to represent Petitioner in this
Court. Doc. 1. The motion states that counsel was contacted
by Petitioner's state postconviction counsel in February
2003, and in light of relevant time constraints, the matter
was of an urgent nature. Taking Ms. Bonner at her word, the
Court immediately conducted a hearing on March 26, 2003. Ms.
Bonner appeared telephonically and requested immediate
pre-petition appointment so that she could timely prepare and
file a habeas petition. Ms. Bonner advised the Court of her
qualifications, and feeling confident that Ms. Bonner's
experience would bode well for Petitioner, the Court
happened for two months. On May 28, 2003, Ms. Bonner filed an
ex parte proposed litigation budget. Doc. S-1. Curious as to
the lack of urgency on Ms. Bonner's part to get the
petition filed after she requested an expedited appointment,
the Court entered an Order directing Petitioner to file a
notice by June 17, 2003, updating the Court on the status of
the case. Doc. 5. On June 18, 2003, Ms. Bonner filed two ex
parte requests for investigative fees. Docs. S-3,
S-4. At the same time, Ms. Bonner filed an ex
parte status report, which stated in pertinent part:
Undersigned counsel and her investigator have visited with
Mr. Thomas. Undersigned counsel has read and indexed the
record of the 3.850 hearing and is proceeding with a review
of the relevant trial transcript as well as the record on
The investigation done thus far has yielded that absolutely
no factual investigation in preparation for the trial or for
the Motion to Vacate has been accomplished. Mr. Thomas has
advised that there was substantial, relevant investigation
which he wished accomplished.
As the Court can imagine, it is a difficult situation.
Counsel does not wish to file a motion with this court which
does not present all facts and issues which are to be
litigated before it because of the fear that this will not be
deemed a properly filed motion and may prejudice the right to
collateral review due to Mr. Thomas.
Even under the AEDPA it is contemplated that litigants
have one year to investigate and prepare their federal
claims. Unfortunately, due to the manner in which the time is
to be calculated, counsel who enter the case for the first
time at a late stage do not have the benefit of that year and
frequently have the benefit of virtually no time. Undersigned
counsel wishes to present a complete petition and anticipates
that investigation, research, and drafting will consume at
least six weeks' more time.
Doc. 108 (previously Doc. S-8) (emphasis added).
21, 2003, Mr. Bonner filed another status report. Doc. 109
(previously Doc. S-12). Ms. Bonner stated that information
she had just received required her to engage in
“substantial investigation including the gathering of
records of litigation of individuals other than Mr.
Thomas.” Id. Additionally, she wrote:
Once again, as stated earlier, counsel does not wish to file
a motion with this court which does not present all facts and
issues which are to be litigated before it because of the
fear that this will not be deemed a properly filed motion and
may prejudice the right to collateral review due to Mr.
Thomas. There had been no factual investigation completed-as
it appears from the Record-at either the trial or the
post-conviction stage. This new ground hopefully is fertile
and will establish factual support for the issues to be
Additionally, Mr. Thomas pled guilty in a death case in the
State Court and received a life sentence in that matter. It
appears that that plea not only affected the instant trial
court's arrival at the sentence of death, but also,
because Mr. Thomas was not appointed counsel in that separate
case, no appropriate post-conviction attack was made. The two
cases are inextricably intertwined and counsel is evaluating
the proper manner in which to proceed. In all likelihood,
although counsel is not appointed for this purpose and
certainly will not include the work in any billings to this
Court, a separate State habeas motion will be filed as a
determination of the knowledge and voluntariness of the plea
is vital to this Court's consideration of the entirety of
the matter. The filing of the State action will not
delay the initial filing herein.
Undersigned counsel wishes to present a complete petition and
anticipates that investigation, research, and drafting will
consume at least six additional weeks' time.
August 2003, Ms. Bonner filed a request relating to her
investigation. Docs. S-13, S-14. Still without having a
petition filed, on February 19, 2004, the Court ordered
Petitioner to advise the Court of the status of the case or
face dismissal for failure to prosecute. Doc. 7. On March 15,
2004, Ms. Bonner filed a status report and asked for leave to
file the federal petition no later than March 19, 2004. Doc.
8. The Court entered an Order advising Petitioner that leave
was not required, and noting that any determination as to
timeliness would be made after the filing of the petition and
the response. Doc. 9. Finally, after the Court chased Ms.
Bonner for months, she filed the Petition on March 22, 2004,
but the saga was just beginning.
first hearing on the timeliness issue held on January 18,
2006, Ms. Bonner was unable to explain exactly why she had
filed the Petition late, other than saying that she needed
more time to investigate Petitioner's case and she
intended to rely on equitable tolling as a basis to have the
merits of the Petition heard. She further addressed the state
system set up to provide death-sentenced inmates with
MS. BONNER: . . . I'm trying to get across to the court
it was - - you realize that when I received this case I had
but a few days to do the petition, two weeks, three weeks,
whatever it was to do the petition. And when I learned there
were new grounds that changed the entire complexion of the
case, I had the choice of presenting to you something that I
would want you to stay and would add new factual findings to,
factual investigation to, but the state would have come back
immediately, as the court well knows, and said that the new
things did not come from that common core of operative facts
which had been dealt with by the state. And they had not, in
fact, been dealt with by the state.
But I'm saying that the 300 - - the Florida system is set
up in such a way that Mr. Morrow was able to use up 321 days
of the 365 days with no monitoring of any kind and was
permitted to have - - to - - Mr. Thomas was left with no
remedy, no - - no product from that and no remedy other than
In light of the actual functioning of Florida's system of
capital collateral relief and registry in this instance where
two counsel had already been appointed and yet no product for
the federal system was even in the process of being prepared,
and where Mr. Thomas after extensive debriefing and
investigation revealed an issue which had never arisen
before, that I had a duty to investigate that issue, and that
the one year - - taking the one year is not an irrational
thing - - one year itself is not irrational. We can't say
it was irrational because Congress gave us a year, so we
can't say Congress is irrational. But even the Eleventh
Circuit - - no - - yeah.
The Eleventh Circuit in a case where a fellow had moved to
set aside one of his priors because he was, I think, ACCA,
and they said, no, you've blown your AEDPA time, when it
went to the Supreme Court of the United States, they said,
No, the Eleventh was wrong and his timing was was to begin
anew; in other words, he had a year from then, from the time
that the Supreme Court found that the Eleventh Circuit was
wrong. They didn't ask - - they didn't parse out the
times before that. Congress - -
THE COURT: You and I might even be able to agree - -or
reasonable people, let's put it that way, might agree
that it would be an easier, more predictable system if
federal petitions had to be filed a year after all state
proceedings had concluded; . . . but that's not what the
law is, right?
And - - it's abundantly clear that's not what the law
is . . . and I think your argument recognizes that's not
what the law is because you are telling me the only way I can
rule in your favor is to find that that period of
investigation that you undertook on behalf of your client
qualifies for equitable tolling.
MS. BONNER: And that the - - the Florida system, which does
not require that the same lawyer continue a case or require
that that lawyer be a - - a member of this bar or be in the
process of preparing something from this bar - - for this
bar, is so faulty that when a practitioner from this court
takes over, a reasonable amount of time is necessary.
THE COURT: . . . [W]hat's the legal basis for that second
argument? Is that a constitutional argument? . . . [W]hat
kind of argument is that?
MS. BONNER: It is - - what I am saying to you is that the
statute in Florida is faulty, that the - - people of the
United States do not want anyone executed unless all due
process is adhered to, is taken. . . . But what I am saying
is that when Congress contemplated a one year period of time
in which the federal process would be stayed, it anticipated
that there would not be these kinds of delays in the state
system or the state system would not work in the way it's
As I said in some of my moving papers, I'm sure that none
of the people in Congress have ever litigated one of these,
but when you change from counsel to counsel and you change
from court to court - - and I have had two different lawyers
who were on the registry who did not wish to come to federal
court at all, they had mentioned to me that they tried to
find counsel to supplement for them, to come in for them, to
substitute for them in the federal court when they were done
doing what they were very comfortable with, which was the
state court process, and were unable to do so. . . .
So what was in my mind? My mind was telling me that the
year was a reasonable length of time, that nothing had been
done in that other year. Perhaps if I had been more artful, I
would have advised the court of it. My decision as I saw it
at the time was should I file a ...