by Dale Chappell

In a case where habeas counsel purposely waited until it was too late to file a federal habeas corpus petition, the U.S. Court of Appeals for the Eleventh Circuit held on March 31, 2021, that counsel’s actions amounted to “abandonment” and allowed equitable tolling to excuse the late filing.

The case came before the Court for a second time after a tortured history in Florida state and federal courts, where William Thomas sought habeas relief from his murder conviction and death sentence. He was convicted of first-degree murder, burglary, and kidnapping in 1997 after a jury found that he killed his ex-wife over a divorce dispute. He had exhausted his appeals and then filed a postconviction motion in the state trial court with numerous claims of trial error and ineffective assistance of counsel (“IAC”). After a hearing, the state court denied relief, and Thomas turned to the federal courts.

In 2003, Thomas hired Mary Catherine Bonner, a lawyer who urged him to request that she be appointed to his case to pursue federal habeas relief. She was appointed on April 2, 2003, and Thomas’ petition was due June 18, 2003. But Bonner didn’t file the petition until March 22, 2004 – nine months after the deadline. When Thomas asked Bonner why she was waiting to file the petition, she told him it was already late before she was retained, and she wanted to investigate more. She promised it wouldn’t be an issue. Thomas sent her a petition that he drafted based upon his state claims, and he would later testify that Bonner advised that she filed it.

But Bonner lied to Thomas. It was not too late to file when she was appointed, and she never filed his petition he sent her. In fact, at the hearing in the U.S. District Court for the Middle District of Florida on whether equitable tolling should apply, the court found that Bonner purposely delayed filing Thomas’ habeas petition because she wanted to challenge the constitutionality of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) statute of limitations. The district court concluded that Bonner had “engaged in an egregious pattern of misfeasance” beyond even gross negligence. “Bonner had exhibited divided loyalty to Thomas by intentionally missing the statute of limitations in order to challenge” the AEDPA, the court said, finding that equitable tolling applied and declared Thomas’ petition timely. Ultimately, however, the court denied Thomas’ petition under the AEDPA’s harsh “deference” standard of review, giving the state court the benefit of the doubt.

On appeal, Thomas argued that the district court erred in procedurally barring his claims and that the court misunderstood his claims. The State then responded that the district court erred in equitably tolling the AEDPA clock and finding that Thomas’ petition was timely. The Court addressed the State’s argument first.

The U.S. Supreme Court has held that the AEDPA may be tolled for equitable reasons. In Holland v. Florida, 560 U.S. 631 (2010), the Supreme Court stated that equitable tolling may apply if a petitioner shows “(1) that he has been pursuing his right diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” These two prongs are separate, and both must be met to allow equitable tolling.

The Court explained that the diligence required of a petitioner “is reasonable diligence, not maximum feasible diligence.” Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216 (11th Cir. 2017). Additionally, a court “must take into account the conditions of confinement and the reality of the prison system” when assessing diligence, the Court noted. Smith v. Comm’r, Ala. Dep’t of Corr., 703 F.3d 1266 (11th Cir. 2012).

The Court found that Thomas was diligent. “Thomas had no reason to believe that Bonner would deliberately ignore his directions to file his completed petition following her appointment as his counsel in order to pursue her personal goal of challenging AEDPA’s limitations period, and Bonner’s letters left Thomas with the impression that Bonner was still competently representing him and that time issues were ‘technical’ and could be resolved later,” the Court stated.

The Court also found that the record contained enough evidence to support that Thomas had diligently tried to file his petition on time by urging counsel to do so, by writing to the court, and by writing his own petition and sending it to counsel to file for him. He further believed that counsel was filling her obligations to him as counsel.

As for extraordinary circumstances under the second prong, generally an attorney’s error, even if grossly negligent, isn’t enough to warrant equitable tolling. Holland. However, the Supreme Court has acknowledged that it’s possible that a lawyer’s professional misconduct could “amount to egregious behavior and create an extraordinary circumstance that warrants equitable tolling.” Id.

In Holland, the Supreme Court addressed an issue similar to Thomas’ case, and it agreed that equitable tolling applied. But Thomas’ case contained one added fact that favored equitable tolling: his lawyer purposely filed the petition late for her own personal interests. The question then became whether this amounted to “attorney abandonment,” according to the Court.

The Court noted that the issue involved the principle of “agency.” This means that if Bonner was acting as Thomas’ “agent” when she filed the petition late, agency could foreclose equitable tolling. “The principal [Thomas] bears the risk of negligent conduct on the part of his agent and the attorney is the prisoner’s agent,” the Court explained. However, the Court explained that attorney abandonment “severs the principal-agent relationship,” meaning Thomas would not be liable for Bonner’s conduct.

Advancing one’s own agenda, the Court said, is one way an attorney abandons her client. Thomas and the State stipulated in state court that Bonner had purposely filed his petition too late as a test case to challenge AEDPA’s statute of limitations. “Bonner sacrificed Thomas’s guaranteed opportunity of federal habeas review in order to pursue her own novel – and ultimately meritless – constitutional argument against AEDPA’s limitations period. Bonner’s personal goal not only failed to benefit Thomas (or other, non-party capital defendants), they were clearly adverse to his interests in the case. Considering the entire record, we find that Bonner acted in bad faith and abdicated her duty of loyalty to Thomas so that she could promote her own interests,” the Court concluded.

Accordingly, the Court upheld equitable tolling of Thomas’ late habeas petition but ultimately affirmed the denial of his petition on the merits by the district court. See: Thomas v. Attorney General, State of Florida, 992 F.3d 1162 (11th Cir. 2021).

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