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Thomas v. Attorney General of Florida

United States District Court, M.D. Florida, Jacksonville Division

February 6, 2018




         The 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.

         I. Status

         This 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, [1] 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.

         Initially, 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.

         The 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)).[2] The Eleventh Circuit summarized its remand instructions:

[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[3] 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 extraordinary circumstance.

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.

         II. Background

         A. Correspondence Between Petitioner and Ms. Bonner

         During 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.[4] 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.

         This is 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.

         Ms. 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.[5] 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.

         On 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[6] 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.

         Ms. 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 expired.

         On July 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, [7] 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 instructions:

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.[8]
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.

         Seven 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.

         On June 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.[9] That is incredibly good news, so I am on the attack.
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 apprised.

Doc. 102 at 24 (emphasis added).

         B. Pre-Remand Procedural History

         This 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 appointed her.

         Nothing 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.[10] 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 appeal.
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).

         On July 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 raised.
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.[11] 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.


         In 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.

         At the 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 counsel.

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.[13] 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 working.
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 ...

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