Lugo v. Secretary, Florida Department of Corrections: Panel Finds Prisoner's Section 2254 Petition is Time-Barred; Engages in Extensive Debate About Florida's Capital Habeas Representation System

Lugo v. Secretary, Fla. Dep’t of Corr., No. 11-13439, from SDFla

Majority opinion: Chief Judge Carnes joined by Senior Circuit Judge Dubina. 

Concurring in the judgment: Circuit Judge Martin.

Summary:

Majority opinion: The petitioner appealed (after a certificate of appealability was granted) the denial of his motion under 28 U.S.C. § 2254 as time-barred.  A petitioner has one year after the judgment becomes final to file such a motion.

The judgment here became final on October 6, 2003, when the Supreme Court denied his petition for certiorari. A state post-conviction motion can toll the time for filing a § 2254 motion, but the petitioner filed his first state post-conviction motion on October 18, 2004, after his case was juggled around to several different attorneys.  This motion was finally denied on January 22, 2009.  After his post-conviction attorney attempted to withdraw from further representation on numerous occasions, the petitioner filed his pro se  § 2254 motion in the district court on January 5, 2010.

There were two issues on appeal—first the denial of the petitioner’s motion as time-barred, and second, the district court’s denial of the petitioner’s Rule 60(b) motion seeking to set aside that judgment.  Different evidence pertained to each issue, because the petitioner presented specific evidence of his attorney’s lack of diligence with respect to the second issue, but not the first. Different standards of review also apply: de novo to the first issue, and abuse of discretion to the second.  The majority did not consider whether attorney abandonment occurred in this case, see Cadet v. Fla. Dep’t of Corr., 742 F.3d 473 (11th Cir. 2014), because the petitioner did not demonstrate diligence in pursuing his rights or allege a causal connection between his attorney’s purported misconduct and the late-filing of his motion.

The majority concluded that the petition was not timely filed within one year of the date the judgment became final, that no tolling applied based on the filing of the state-court motion (because it was filed after the expiration of this one-year period), and that equitable tolling was not appropriate. The district court’s initial denial of the petition as time-barred was accordingly affirmed.

Next, the majority concluded that the denial of the Rule 60(b) motion was appropriate because it was not an abuse of discretion.  The district court’s denial of this motion was therefore affirmed. 

The majority opinion then went on to address points raised by the concurring opinion about death-row inmates in Florida missing filing deadlines for federal relief.  The majority emphasized that a state prison is not entitled under 18 U.S.C. § 3599 to have federally-paid counsel assist him in the pursuit and exhaustion of state postconviction remedies, including the filing of motions for state collateral relief that would toll the one-year federal filing period.  The majority further opined that it would be an abuse of discretion for a district court to appoint federal habeas counsel to assist a state prisoner in exhausting his state postconviction remedies before the filing of a federal position, even if the petitioner is unable legally adequate representation in state court. The majority also expressed skepticism about the practice of filing placeholder federal motions while state post-conviction motions are litigated because district courts are not required to accept those filings and then stay proceedings—indeed, the Supreme Court has directed that, except in limited circumstances, such petitions should be dismissed without prejudice until state remedies are fully exhausted.

Concurring opinion: Judge Martin agreed with the holding of the majority, namely that the petitioner was not entitled to equitable tolling and that it was not an abuse of discretion to deny the Rule 60(b) motion.  She wrote separately to highlight the problem of state court-appointed counsel, particularly in Florida, to timely-file the necessary federal post-conviction motions.