United States District Court, S.D. Georgia, Savannah Division
July 6, 2015
CHRISTOPHER MICHAEL BING, Movant,
UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
G.R. SMITH, Magistrate Judge.
Moving for 28 U.S.C. § 2255 relief, Christopher Michael Bing claims that he instructed his lawyer to file a direct appeal from his drug conspiracy conviction but she failed to do so. Doc. 50 at 1. He thus argues that L. Nicole King was ineffective on that score, as well as when she failed to argue away two prior convictions used to enhance his sentence. Id. at 1-2. He wants his direct-appeal right restored. Id. at 2-3 n. 1, 6. In the alternative, he seeks a reduced sentence because an effective lawyer would have convinced the sentencing judge not to double count two prior convictions. Id. at 2. Opposing, the government argues that his § 2255 motion is untimely. Doe. 5 at 6-8.
Bing pled guilty and was sentenced to 264 months' imprisonment on November 20, 2012. Doe. 30. As noted above, he says he asked King to file an appeal but she failed to do so. On April 15, 2013, he filed his own, pro se notice of appeal. Doc. 33. It was untimely because under Fed. R. Crim. P. 4(b)(1)(A), it had to be "filed in the district court within 14 days" of the entry of judgment, id., which means December 4, 2012.
Meanwhile, the Eleventh Circuit refused to accept King's September 9, 2013 request to be discharged as counsel; it instead directed her to file a brief on the merits or, if warranted, pursuant to Anders v. California, 386 U.S. 738 (1967), accompanied by a motion to withdraw as his lawyer. Doc. 54-1 at 3-4 (attached appellate docket sheet).) King repeatedly tried to file an Anders brief but that court consistently rejected it for various deficiencies. Id. at 4-6. It finally discharged her in December 2013 and appointed new appellate counsel, who filed a merits brief. Id. at 5-6.
On May 28, 2014 - more than a year after Bing filed his own notice of appeal - the government moved to dismiss his appeal as untimely. Id. at 6. The Eleventh Circuit granted that motion and dismissed Bing's appeal on August 22, 2014. Id., cert denied, 135 S.Ct. 506 (Nov. 10, 2014); doc. 54-1 at 6.
The government contends that, even under the unusual circumstances of this case, Bing should have recognized that his appeal was untimely and would ultimately be dismissed. Therefore, it concludes, he should have filed his § 2255 motion by December 4, 2013 - one year (plus Rule 4(b)(1)(A)'s 14 days) after his conviction became final. Doe. 54 at 9-14. Nor, the government insists, is he entitled to equitable tolling. Id. Bing disagrees. Doc. 50 at 2-6 (arguing that King's ineffectiveness and resulting delay supports equitable tolling and justifies the grant of a new appeal, if not an evidentiary hearing on his JAC claims).
Bing's § 2255 motion is time-barred. Again, he took no timely appeal, so his November 20, 2012 conviction became final on December 4, 2012, 14 days after judgment was entered. Murphy v. United States, 634 F.3d 1303, 1307 (11th Cir. 2011); Fed. R. App. P. 4(b)(1)(A). 28 U.S.C. § 2255(f)(1) gave him only until December 4, 2013, to file his § 2255 motion, which at the earliest he filed on December 29, 2014 Doc. 50.
It is Bing's burden to show equitable tolling,  and he fails. He knew by April 9, 2013 that King had missed his appellate deadline - it's when he mailed his own Notice of Appeal to the Court. Doc. 33 at 2. And his ignorance of the law does not save him. Habeas petitioners are routinely denied equitable tolling for untimeliness caused by legal ignorance, low intellect, lack of counsel, or outright attorney negligence. Spears v. Warden, 2015 WL 1530119 at * 3 (11th Cir. Apr. 7, 2015); Hill, 242 F.Appx. at 636 ("A garden variety error - misaddressing the notice of appeal - caused Hill's state habeas appeal to be filed untimely. We have repeatedly denied equitable tolling predicated on a claim of attorney negligence."); Doe v. United States, 469 F.Appx. 798, 801-02 (11th Cir. 2012) (no equitable tolling based on low IQ, absent an explanation of how movant's mental impairment prevented him from exercising due diligence or filing a timely motion); Simmons v. McLaughlin, 2015 WL 2341677 at * 3 (S.D. Ga. May 14, 2015); see also Wakefield v. R.R. Ret. Bd., 131 F.3d 967, 970 (11th Cir. 1997) (neither a litigant's pro se status nor ignorance of the law normally warrants equitable tolling).
So even if it is true that the Eleventh Circuit's pre-dismissal actions might have led an objective observer to believe that the direct appeal was still viable, and thus that Bing could wait to file his § 2255 motion, that error at most arises from his legal misapprehension, and was born of no misleading directive from that court. See supra, n. 6. Nor does Bing claim that King deceived him, which could support equitable tolling. United States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002) (equitable tolling was warranted when a petitioners attorney deceived the petitioner by telling him that he timely filed his federal habeas petition), cited in Hancock v. Estes, 2014 WL 3898085 at * 7-9 (S.D. Ala. Aug. 11, 2014). Again, equitable tolling demands more than simple ignorance of the law, which means that Bing was required to cut through the Eleventh Circuit's unwittingly created legal fog about whether his appeal was still pending.
In that respect, the government had no duty to warn Bing of his missed deadline. See Hill, 242 F.Appx. at 637 ("That the state might have earlier brought Hill's mistake to his attention does not shift the burden of diligence to the state. Where, as is the case here, no evidence has been proffered that the delay was a consequence of malfeasance on the part of the state, Hill is entitled to no equitable tolling merely because the state failed to flag his error earlier.").
To the extent he may be said to have raised it, Bing also fails to meet the attorney-abandonment showing required for equitable tolling. He at most has shown gross neglect in the direct-appeal stage of his proceedings, but that is not enough. See Cadet v. Fla. Dept. of Corrs., 742 F.3d 473, 481 (11th Cir. 2014) ("[A]attorney negligence, however gross or egregious, does not qualify as an extraordinary circumstance' for purposes of equitable tolling; abandonment of the attorney-client relationship, such as may have occurred in Holland, is required."). Even if it is assumed prepared his own habeas petition pro se and promptly filed it with the District Court." Id. at 653. All of these facts were before the federal district and circuit courts when Holland sought equitable tolling.
Nevertheless those courts denied Holland equitable tolling. The Eleventh Circuit ultimately reasoned that "no allegation of lawyer negligence or of failure to meet a lawyer's standard of care - in the absence of an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer's part - can rise to the level of egregious attorney misconduct that would entitle Petitioner to equitable tolling." Holland, 560 U.S. at 630-31.
That was "too rigid, " concluded the Supreme Court. Id. at 649. Lower courts must "exercise judgment in light of prior precedent, but with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case." Id. at 650. So while "a garden variety claim of excusable neglect, such as a simple miscalculation that leads a lawyer to miss a filing deadline, does not warrant equitable tolling, " id. at 651-52 (quotes and cites omitted), extraordinary circumstances may exist in "far more serious instances of attorney misconduct" not limited to those contemplated by the Eleventh Circuit. Id. at 652. The Court thus reversed and remanded for an evidentiary hearing under its new standard. Id. at 633. Holland later wound up getting his claims heard on the merits. Holland v. Tucker, 854 F.Supp.2d 1229 (S.D. Fla. 2012), rev'd in part and aff'd in part, Holland v. Florida, 775 F.3d 1294 (11th Cir. 2014).
The Court revisited attorney abandonment in Maples v. Thomas, ___ U.S. ___, 132 S.Ct. 912, 923-24 (2012) (post-conviction counsels' abandonment could provide cause to excuse a petitioner's procedural default: "We agree that, under agency principles, a client cannot be charged with the acts or omissions of an attorney who has abandoned him. Nor can a client be faulted for failing to act on his own behalf when he lacks reason to believe his attorneys of record, in fact, are not representing him. We therefore inquire whether Maples has shown that his attorneys of record abandoned him, thereby supplying the "extraordinary circumstances beyond his control, ". necessary to lift the state procedural bar to his federal petition.").
It thus takes a lot to meet the abandonment requirement for tolling. See, e.g., Perez v. Stephens, 784 F.3d 276, 283 (5th Cir. 2015) ("[T]he failure by an attorney to tell her client of a civil judgment in time to file an appeal is not abandonment."); Moses v. Cain, 2015 WL 269040 at * 5 (E.D. La. Jan. 21, 2015) ("Here, Petitioner does not allege that he was actively misled or that some extraordinary obstacle prevented him from asserting his rights. He does not allege that his attorney abandoned his claim. Petitioner was aware of the statute of limitations, as evidenced by his October that King abandoned Bing on his direct appeal, that did not legally or operationally prevent him from timely complaining about her ( i.e., filing a § 2255 motion). Again, Bing knew by April 9, 2013 that King had failed to file his appeal, for he mailed his own appeal notice that day. Doc. 33 at 2. Cadet -level abandonment "denotes absolute renunciation or withdrawal, or a complete rejection or desertion of one's responsibilities, a walking away from a relationship." Cadet, 742 F.M. at 484. If King "walked away, " it was only from her direct-appeal obligations, and that did not obstruct Bing from pursuing collateral remedies (he held no right to counsel in that realm and, since King had no obligation to represent him there, he would not have been subjected to the hybrid-representation rule, Cross v. United States, 893 F.2d 1287) 1291-92 (11th Cir. 1990) (a defendant who is represented by counsel has no right to act as his own co-counsel, i.e., there is no right to "hybrid representation" partly by counsel and partly by defendant)).
Bing, for that matter, could not show abandonment even if King agreed to assist him with his § 2255 motion, but then bungled it. Cadet, 742 F.3d. at 483-85 (habeas counsel's misinterpretation of the filing deadline and failure to conduct any research into the matter, particularly when faced with petitioner's persistent challenges to his calculation, while negligent, did not constitute "abandonment" of the attorney-client relationship, and thus did not qualify as an "extraordinary circumstance" required to equitably toll the one-year limitations period for petitioning for federal habeas relief; fact that counsel ought to have known better or ought to have done the necessary research to know better did not mean that he was "acting adversely" to petitioner's interests, as required to constitute abandonment under principles of agency law).
Christopher Michael Bing's 28 U.S.C. § 2255 motion therefore must be DENIED as untimely. His request for appointment of counsel,  doc. 50 at 1, is DENIED. Applying the Certificate of Appealability (COA) standards set forth in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9, 2009), the Court discerns no COA-worthy issues at this stage of the litigation, so no COA should issue. 28 U.S.C. § 2253(c)(1). And, as there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith. Thus, in forma pauperis status on appeal should likewise be DENIED. 28 U.S.C. § 1915(a)(3).
SO REPORTED AND RECOMMENDED.