United States District Court, S.D. Georgia, Savannah Division
DINO L. HARDING, Petitioner,
CLINTON PERRY, WARDEN, Respondent.
STAN BAKER, UNITED STATES MAGISTRATE JUDGE
careful, de novo review of the file, the Court
concurs with the Magistrate Judge's December 20, 2018
Report and Recommendation, (doc. 4), to which Plaintiff has
filed Objections (doc. 10). Accordingly, the Court
OVERRULES Plaintiff's Objections and
ADOPTS the Report and Recommendation as the
opinion of the Court. The Court DISMISSES
Petitioner's 28 U.S.C. § 2254 Petition for Habeas
Corpus, (doc. 1), DENIES Petitioner a
Certificate of Appealability, and DENIES
Petitioner in forma pauperis status on appeal. The
Court DIRECTS the Clerk of Court to
CLOSE this case.
Objections, Plaintiff concedes that his petition is untimely
filed but argues that his state counsel was ineffective for
failing to apprise him that his federal habeas petition
deadline was running. (Doc. 10 at 1.) Under Holland v.
Florida, 560 U.S. 631 (2010), a petitioner “is
entitled to equitable tolling only 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 filing.” Holland, 560 U.S. at 649
(quotes omitted). “The diligence required for equitable
tolling purposes is reasonable diligence, not maximum
feasible diligence.” Id. at 653 (quotes and
cite omitted). As for extraordinary circumstances, it is
petitioner's burden to prove them; “[m]ere
conclusory allegations are insufficient to raise the issue of
equitable tolling.” San Martin v. McNeil, 633
F.3d 1257, 1268 (11th Cir. 2011) (cite omitted). He also must
“show a causal connection between the alleged
extraordinary circumstances and the late filing of the
petition.” Id. at 1267. This Court thus must
consider: (1) the weight that should be accorded to the
lawyers' (lack of) advice in determining whether
petitioner meets the extraordinary circumstances prong; and
(2) Harding's own diligence.
his lawyers, only “serious attorney misconduct,
including acts of gross negligence and acts of outright
willful deceit, can constitute ‘extraordinary
circumstances' which would justify equitable tolling of a
movant's § 2254 motion. Smith v. United
States, 420 Fed.Appx. 944 (11th Cir. 2011) (quotes and
alterations omitted); see also Lawrence v. Florida,
421 F.3d 1221, 1226 (11th Cir. 2005) (rejecting
petitioner's argument that the state impeded his timely
filing of his § 2254 petition by providing him an
incompetent attorney through the Florida counsel registry
system), aff'd, 549 U.S. 327 (2007); Webster
v. Sec'y for Dep't of Corrs., 384 Fed.Appx. 979,
983 (11th Cir. 2010) (same result based on attorney's
failure to inform petitioner of the decision on his direct
appeal and his “abandonment” of petitioner).
Here, Plaintiff only contends that counsel failed to warn him
about the one-year rule. That deficiency falls far short of
the type of attorney misconduct that warrants tolling.
Clarkson v. Williams, 2011 WL 6328367 at * 1 (S.D.
Ga. Nov. 14, 2011). Counsels' failure to warn him, then,
is not enough here. Chavez v. Sec'y Fla. Dep't of
Corrs., 647 F.3d 1057, 1066-70 (11th Cir. 2011). Like
everyone else, he must bear the sometimes fatal risk of
simple malpractice. See Coleman v. Thompson, 501
U.S. 722, 752-57 (1991) (condemned prisoner pursuing state
habeas relief waived right to federal review, and thus could
be executed, after his state habeas counsel negligently
missed, by 3 days, deadline for appealing denial of
state habeas petition); id. at 754 (applying Rest.
Agency 2D § 242 (1958) (the “master is subject to
liability for harm caused by negligent conduct of servant
within the scope of his employment”)).
his own diligence, Plaintiffs good faith effort to file
“before what he believed was the deadline
(based on his attorney's erroneous advice)” is not
an “extraordinary circumstance” that tolls the
statute of limitations. Helton v. Sec'y for Dep
't of Corrs., 259 F.3d 1310, 1313 (11th Cir. 2001).
Plaintiff was convicted July 17, 2009 (see State v.
Harding, No. CR08-2946 (Chatham Super. Ct.)) and his
conviction was affirmed in September 2011 (Harding v.
State, 311 Ga.App. 724 (2011); see also Harding v.
State, No. A11A0918 (Ga.App. Oct. 6, 2011) (remittur
issued)). He did not file his petition until December 19,
2018 (see doc. 1 at 15) - more than seven years
later. “Judicial systems, ” after all, “are
operated by human beings who err. Defendants know this. They
thus must make a reasonable inquiry, even if told they may
rest easy and do nothing, where a large amount of time
marches by and nothing happens in their cases.”
Clarkson, 2011 WL 6328369 at *3; see also McGraw
v. McCall, 2010 WL 4825747 at * 9 (D.S.C. Aug.4, 2010)
(“equity is not intended for those who sleep on their
rights.”) (cites omitted)).
as time waits for no one, there are limits on how long our
legal system will wait for anyone to bring a claim.”
Chavez, 647 F.3d at 1058. Dino Harding's §
2254 petition is time-barred.