Splits Noted: Does Severe Attorney Misconduct Justify Equitable Tolling? Is Equitable Tolling More Justified in Capital Cases?

Per Downs v. McNeil, 2008 WL 756348, *17-*26 (11th Cir. Mar. 24, 2008)

Ernest Downs was paid $5,000 dollars to kill Forest Jerry Harris in 1971. He was convicted of first degree murder and sentenced to death in 1978. Since then, he has filed numerous appeals. Beginning in 1992, Downs was represented by Florida’s Capital Collateral Regional Counsel organization, a special government body charged with assisting indigent death-row inmates. This appeal originates that same year, when CCRC filed a motion to vacate the sentence. That motion remained pending for five years, during which time AEDPA established a new time limit for state prisoners to seek federal habeas corpus. The district court summarily dismissed Downs’s habeas petition, so this Eleventh panel assumes Downs’s allegations, as set forth below, are true.

Downs was aware of the law and wrote his CCRC counsel several times to ensure that he comply with the strict one year deadline. Counsel informed Downs that a state petition had been filed (which would toll the federal deadline) when, in fact, it had not. The state petition was eventually filed on the last day of the federal timeline. After it was filed, the two attorneys at CCRC who were qualified to be lead counsel on a capital case resigned from Downs’s case, leaving CCRC without an attorney who could serve as lead counsel. When a new counsel was finally hired a year later, Downs informed him of the timing issue and sought to file for federal habeas immediately. The new CCRC counsel did not follow this directive and, indeed, returned Downs’s draft of a federal habeas motion. The Florida Supreme Court denied the motion to vacate and, nine days later, CCRC attorneys filed a petition for federal habeas corpus. The district court found the petition to be time-barred by AEDPA.

This panel of the Eleventh Circuit reverses, holding that serious attorney misconduct, more than mere negligence, constitutes an extraordinary circumstance which merits equitable tolling of AEDPA’s deadline. In order to qualify for tolling, such a circumstance must not only be ‘extraordinary’, but also beyond petitioner’s control and unavoidable even with due diligence. In so holding, the CA 11 widens a split between the CAs 3,5,9,10 (so holding) and the CA 7 (applying a bright-line rule that all attorney misconduct is attributable to the client under agency theory, and thus denying all tolling). The CA 4, in dicta, has suggested that it would agree with the CA 7. The Eleventh Circuit panel questions the agency law underpinnings of the Seventh Circuit’s rationale, noting that when an agent acts adversely to the principal, the principal cannot be charged with the agent’s misdeeds.

The panel states that its decision on this issue is not influenced by the fact that this is a capital case. Indeed, it cites circuit precedent which disfavors giving the fact that a case is a capital case any special weight. During this discussion, the panel notes that CAs 4,7,11 agree, whereas CAs 1,3 do treat death as different in determining whether equitable tolling should apply.

Totally regardless of the merits of Downs appeals, the course of behavior by the state capital attorneys in this case does raise larger questions regarding the justice of system...