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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-13512
________________________
D.C. Docket No. 4:04-cv-03422-VEH-HGD
ROBERT BRYANT MELSON,
Petitioner - Appellant,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
Respondent - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(April 4, 2013)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Robert Bryant Melson appeals the district court’s dismissal of his 28 U.S.C.
§ 2254 federal habeas corpus petition as untimely. The district court rejected
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Melson’s argument that the one-year statute of limitations for filing a federal
habeas petition should be equitably tolled, finding that Melson was not reasonably
diligent in pursuing his rights and that the conduct of Melson’s attorneys did not
constitute an extraordinary circumstance that warrants equitable relief. After a
review of the record and oral argument, we affirm.
I. PROCEDURAL AND FACTUAL BACKGROUND
Melson was convicted of three counts of capital murder on April 26, 1996,
and was sentenced to death on May 16, 1996. On direct appeal, the Alabama
Court of Criminal Appeals and the Alabama Supreme Court affirmed the
conviction and sentence. Melson v. State, 775 So. 2d 857 (Ala. Crim. App. 1999),
aff’d Ex parte Melson, 775 So. 2d 904 (Ala. 2000). The United States Supreme
Court denied Melson’s petition for a writ of certiorari on March 5, 2001. Melson
v. Alabama, 532 U.S. 907 (2001).
Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, a state prisoner must file an
application for a writ of habeas corpus in federal court within one year of the date
that his state court judgment becomes final. 28 U.S.C. § 2244(d)(1). However, the
one-year deadline is statutorily tolled while “a properly filed application for State
post-conviction or other collateral review with respect to the pertinent judgment or
claim is pending.” Id. § 2244(d)(2). Accordingly, Melson had to file a petition
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under Rule 32 of the Alabama Rules of Criminal Procedure (“Rule 32 petition”) by
March 6, 2002, in order to toll the federal deadline.
Alabama does not provide counsel to indigent capital defendants in post-
conviction proceedings and Melson was left unrepresented after the Supreme Court
denied his petition for a writ for certiorari. Melson was assured by his former
counsel that the Equal Justice Initiative, a non-profit organization, would find a
volunteer attorney to take his case and file in both state and federal courts for
habeas relief. In November 2001, Melson’s former counsel told him that Ingrid
DeFranco, an attorney from Colorado, had agreed to represent him. DeFranco was
not licensed to practice law in Alabama, but met with Melson in December 2001
and promised him that she would obtain pro hac vice status through a local
attorney. Melson did not hear from DeFranco again and wrote to her in February
2002 to inquire about his federal habeas petition, saying that he was losing sleep
because he did not know whether the federal deadline had passed.
On March 4, 2002, two days before the AEDPA statute of limitations was
due to run, DeFranco filed a Rule 32 petition in the Etowah County Circuit Court.
However, DeFranco had not yet obtained pro hac vice status in Alabama and,
further, had failed to verify the petition as required by the Alabama Rules of
Criminal Procedure. See Ala. R. Crim. P. 32.6(a) (“A proceeding under this rule is
commenced by filing a petition, verified by the petitioner or the petitioner’s
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attorney, with the clerk of court.”). Consequently, the circuit court dismissed the
petition as not properly filed. Melson points out that, although the circuit court
order states that the Rule 32 petition was dismissed “due to lack of verification,”
any pleading filed by an out-of-state attorney who has not obtained pro hac vice
status is to be stricken as a “nullity” under Alabama law. Black v. Baptist Med.
Ctr., 575 So. 2d 1087, 1088 (Ala. 1991). Melson argues that the petition would
have been stricken due to DeFranco’s lack of pro hac vice status regardless of the
verification and that he was effectively unrepresented by counsel, notwithstanding
DeFranco’s “filing.”
DeFranco filed an amended Rule 32 petition with the proper verification on
March 25, 2002, but this was after the federal deadline had already passed. She
then associated local counsel, Loretta Collins, and obtained pro hac vice status.
She forwarded a copy of the amended state petition to Melson along with a letter
assuring him that all was well with his case. DeFranco did not inform Melson that
the original Rule 32 petition had been dismissed or that, as a result, he had missed
the deadline for tolling the AEDPA statute of limitations.
Because the amended Rule 32 petition was timely filed under Alabama law,
it was considered by the state courts. However, the circuit court denied relief on
October 17, 2002, holding that the petition failed to raise a material issue of fact or
law, that it failed to state a claim for which relief could be granted, and that
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Melson’s claims were insufficiently pled. The clerk forwarded a copy of the
dismissal order to Melson and, in December 2002, sent Melson a packet of
documents informing him of his right to appeal the dismissal in state court.
Melson testified at the evidentiary hearing that he did not understand what the
dismissal order or documents meant. His lawyers, DeFranco and Collins, never
properly filed a notice of appeal from the dismissal of the Rule 32 petition and
Melson’s appeal was dismissed as untimely on December 16, 2002. Neither
DeFranco nor Collins ever informed Melson that his Rule 32 petition had been
dismissed or that they missed the deadline for filing the notice of appeal, resulting
in the dismissal of the appeal as untimely.
On February 11, 2003, the Alabama Attorney General’s office sent a letter to
Melson, informing him that his Rule 32 proceedings were complete and that the
State planned to set an execution date unless Melson filed a federal habeas corpus
petition, which, in the State’s view, would be untimely. Melson testified that, until
he received this letter, he was unaware that his Rule 32 petition and appeal had
been dismissed. A few days after receiving the letter, Melson wrote to DeFranco
on February 13, 2003, for an explanation. She responded on March 3, 2003, that
Collins had failed to timely file the notice of appeal, that she was in the process of
requesting an out-of-time appeal, and that she planned to file the federal habeas
corpus petition after the state appeal was resolved. However, neither Melson nor
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his attorneys took any action to file the federal petition until almost two years after
Melson received the Attorney General’s letter.
On December 13, 2004, Melson, through different counsel, filed a habeas
corpus petition in federal court pursuant to 28 U.S.C. § 2254. This was more than
two years after the federal AEDPA deadline had passed. The district court
dismissed the petition as time-barred. This Court affirmed the dismissal. Melson
v. Allen, 548 F.3d 993 (11th Cir. 2008). However, the U.S. Supreme Court
vacated the decision and remanded the case to this Court for further consideration
in light of Holland v. Florida, 130 S. Ct. 2549 (2010). Melson v. Allen, 130 S. Ct.
3491 (2010). This Court, in turn, remanded the case to the district court for an
evidentiary hearing. Melson v. Allen, 611 F.3d 1380 (11th Cir. 2010). After
conducting the hearing, the district court concluded that Melson’s attorneys’
conduct did not constitute an extraordinary circumstance warranting equitable
tolling and that Melson did not exercise reasonable diligence in pursuing his
federal petition. The district court dismissed Melson’s habeas petition and Melson
now appeals the dismissal.
II. DISCUSSION
A petitioner is entitled to equitable tolling of AEDPA’s one-year filing
deadline “if he shows (1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way and prevented timely
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filing.” Holland, 130 S. Ct. at 2562 (internal quotation omitted). Melson argues
that his counsel’s deficient performance amounted to an “extraordinary
circumstance” warranting equitable relief because (1) DeFranco did not know the
Alabama procedural rules for filing in state court and (2) she effectively abandoned
him by failing to apply for pro hac vice status before attempting to file his Rule 32
petition.
First, although the Supreme Court has made clear that missing a filing
deadline due to a miscalculation is a “garden variety claim” of attorney negligence
that does not constitute an extraordinary circumstance, id. at 2564, Melson argues
that DeFranco’s failure to timely file his state Rule 32 petition was due not to a
simple miscalculation, but to her complete lack of knowledge regarding Alabama’s
verification requirements. Melson contends that representing a death row inmate
without knowing or bothering to learn the basic procedural rules for filing in state
court is the type of egregious attorney misconduct that justifies a finding of
extraordinary circumstances.
In addition, Melson argues, regardless of the quality of DeFranco’s
representation, when she unsuccessfully attempted to file Melson’s original Rule
32 petition, thereby causing him to miss tolling the federal filing deadline, she had
not yet obtained pro hac vice status and, therefore, was not licensed to practice law
in Alabama. Consequently, although DeFranco purported to represent him, she did
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not have the legal authority to act on Melson’s behalf at the time that the AEDPA
statute of limitations expired. See Maples v. Thomas, 132 S. Ct. 912, 926 (2012);
see also Black, 575 So. 2d at 1088 (holding that a pleading filed by an out-of-state
attorney who had not obtained pro hac vice status in Alabama is to be stricken as a
“nullity”). Collins, a local attorney, had not yet agreed to represent Melson when
the AEDPA statute of limitations expired. As a result, Melson argues that neither
DeFranco nor Collins ever functioned as Melson’s attorneys “in any meaningful
sense of that word” before the AEDPA deadline expired—even though Melson had
every reason to believe they were representing his interests—and thus DeFranco’s
“acts or omissions . . . cannot fairly be attributed to [him].” Maples, 132 S. Ct. at
923 (internal quotation omitted). Attorney abandonment, according to Melson,
constitutes the type of gross professional misconduct that the Holland Court
envisioned as an “extraordinary circumstance” warranting equitable tolling.
We find that we need not address Melson’s arguments pertaining to whether
his attorneys’ conduct constituted an “extraordinary circumstance” because we
agree with the district court that Melson did not exercise reasonable diligence in
prosecuting his federal habeas case. While a petitioner is only required to exercise
“reasonable diligence,” not “maximum feasible diligence,” Holland, 130 S. Ct. at
2565, Melson took no independent steps to ensure that his federal habeas petition
was timely filed. Melson’s state court judgment became final on March 5, 2001,
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and DeFranco did not begin to represent him until November 2001. Melson made
no independent effort during those eight months to locate post-conviction counsel
or to file a federal habeas petition on his own. When Melson received a copy of
the order dismissing his state Rule 32 petition and a notice of his right to appeal, he
again took no action regarding his federal petition. Even when Melson was
explicitly informed by the Attorney General’s office in February 2003 that his
federal petition would be untimely, he did not file in federal court until almost two
years later in December 2004. While there is no hard and fast rule regarding what
Melson should have done, it is clear that Melson’s nearly complete inaction during
the more than three and a half years that passed between when his state court
judgment became final in March 2001 and when he filed his federal habeas petition
in December 2004 is insufficient to establish reasonable diligence.
Accordingly, because Melson failed to demonstrate that he exercised
reasonable diligence in pursuing his federal remedies, he is not entitled to equitable
tolling of the AEDPA statute of limitations. We affirm the district’s court
dismissal of Melson’s federal habeas petition as untimely.
AFFIRMED.
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BARKETT, Circuit Judge, specially concurring:
I agree that, under our precedent, Melson cannot be said to have exercised
“reasonable diligence” as required by Holland v. Florida, 130 S. Ct. 2549, 2565
(2010). However, I note again the difficulties of applying the Holland equitable
tolling test to death row inmates. See Smith v. Comm’r, Ala. Dep’t of Corr., 703
F.3d 1266, 1275-77 (11th Cir. 2012) (Barkett, J., dissenting); Hutchinson v.
Florida, 677 F.3d 1097, 1103-11 (11th Cir. 2012) (Barkett, J., concurring).
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Robert Bryant Melson v. Commissioner, Alabama Department of Corrections
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2013-04-04
Citations: 713 F.3d 1086
Copy CitationsCombined Opinion