             Case: 11-13512     Date Filed: 04/04/2013   Page: 1 of 10


                                                                         [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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