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Equitable Tolling, Incompetent Lawyers, and AEDPA's Firm Limits

By William Peacock, Esq. on February 05, 2014 | Last updated on March 21, 2019

Déjà freaking vu. In fact, déjà déjà vu.

Last April, a particularly unsympathetic death row inmate was denied habeas review by the Eleventh Circuit despite his incompetent attorney's negligence. She botched the state collateral review petition, thereby missing the federal one-year deadline. The Eleventh refused to apply the Supreme Court's Holland v. Florida (2010) decision, where the Court held that an attorney's gross negligence warranted equitable tolling of the statute of limitations.

At the time, noted anti-death penalty judge Rosemary Barkett wrote a reluctant concurrence, citing her dissent in a similar case, Hutchinson v. Florida. The issue creept up again in Howell v. Florida, though with a different procedural history. Again, Barkett reluctantly concurred, citing the same concurrence.

Howell is now seeking Supreme Court review.

SCOTUS's Holland v. Florida

Holland's attorney was beyond negligent. Holland repeatedly nagged counsel about filing the proper petitions and researched and provided the law to his attorney. His counsel ignored it, missed the deadline, and didn't even tell his client that the Florida Supreme Court had denied relief (thereby starting the Antiterrorism and Effective Death Penalty Act's one-year clock).

The U.S. Supreme Court held that equitable tolling was available in circumstances where the defendant shows "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way," preventing timely filing. The Court also drew a vague line between "garden variety" negligence and "more," the latter of which would amount to "extraordinary" circumstances that justify relief.

The vagueness was made worse by the Court's emphasis on applying equity powers "on a case-by-case basis," and avoiding "mechanical rules."

11th's Hutchinson v. Florida

This case seems like "garden variety" negligence, as Hutchinson's attorneys simply miscalculated the filing deadline. Hutchinson compounded the problem by waiting, with a draft in hand, for nearly four years, before filing his request for equitable relief. The majority nixed his petition due to his lack of diligence.

Barkett's extremely lengthy concurrence argued that death row inmates should not bear the consequences of inadequate counsel, and argued against the gross and garden variety negligence distinction, citing Justice Alito's concurrence in Holland. ("Allowing equitable tolling in cases involving gross rather than ordinary attorney negligence would not only fail to make sense in light of our prior cases; it would also be impractical in the extreme. . . . [I]t has been aptly said that gross negligence is ordinary negligence with a vituperative epithet added.")

11th's Melson v. Commissioner

We've already covered Melson in depth, but here's the short version: his counsel was not locally licensed, not familiar with local rules of criminal procedure, and missed the federal deadline by filing a defective state petition that was summarily dismissed. (A successfully filed petition tolls the one-year clock.)

11th's Howell v. Florida

And now, we reach the subject of the petition for certiorari. Howell put a pipe bomb in a microwave to blow up a witness to a crime. Instead, an unsuspecting Florida Highway Patrol Trooper picked up the box and it exploded, killing him.

Howell sought equitable tolling in 2005, due to his trial attorney fabricating death threats, and his appellate attorney doing absolutely nothing, but was denied. Now, he's arguing that Holland was a change in law that (a) would've justified equitable tolling in the first place due to his previous attorneys' miserable failures and (b) itself is an extraordinary circumstance that would justify setting aside the prior rejection under Rule 60(b).

What was the Eleventh Circuit's response? (Hint: he's seeking certiorari, so it wasn't positive.) We'll rehash the court's logic, his arguments, the cert. petition, and the ABA's amicus curiae brief later this week.

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