           Case: 11-13802   Date Filed: 12/28/2012   Page: 1 of 25

                                                                     [PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT

                       ________________________

                             No. 11-13802
                       ________________________

                 D.C. Docket No. 5:05-cv-01547-LSC-JEO




RONALD BERT SMITH,

                                                      Petitioner - Appellant,



                                  versus



COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,



                                                      Respondent - Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________
                           (December 28, 2012)

Before TJOFLAT, BARKETT and HULL, Circuit Judges.
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PER CURIAM:

       Ronald Bert Smith appeals the dismissal of his federal habeas corpus petition

brought pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and

Effective Death Penalty Act of 1996, (“AEDPA”), Pub. L. No. 104-132, 110 Stat.

1214. The district court dismissed the federal petition because it was not filed

within AEDPA’s one-year statute of limitations. The only issues here involve

tolling.

       The district court rejected Smith’s argument that his application for state

post-conviction relief statutorily tolled AEDPA’s one-year filing deadline,

concluding that Smith had not “properly filed” his state petition within the one-year

federal deadline. The district court also rejected Smith’s argument that if the filing

deadline was not statutorily tolled, it should be tolled on equitable grounds because

of his attorneys’ conduct, which Smith argues constituted abandonment.1 After

review and oral argument, we affirm.

                      I.      AEDPA’s One-Year Limitations Period

       On November 8, 1994, Smith murdered convenience store clerk Casey

Wilson during an armed robbery. After a jury trial, Smith was convicted in


       1
          The district court denied Smith’s application for a certificate of appealability. Later,
this Court granted Smith a certificate of appealability on whether Smith’s state petition was
“properly filed” and whether the district court erroneously denied Smith’s claim of equitable
tolling or his request for an evidentiary hearing on his equitable tolling claim.
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Alabama of capital murder. Although the jury recommended by a vote of seven to

five that he be sentenced to life imprisonment without the possibility of parole, the

trial court declined to follow the jury’s recommendation and sentenced him to death.

On direct appeal, the Alabama Court of Criminal Appeals and the Alabama Supreme

Court affirmed Smith’s conviction and sentence. Smith v. State, 756 So. 2d 892

(Ala. Crim. App. 1998), aff’d, Ex parte Smith, 756 So. 2d 957 (Ala. 2000). The

United States Supreme Court denied Smith’s petition for a writ of certiorari on

October 2, 2000. Smith v. Alabama, 531 U.S. 830 (2000).

      AEDPA provides that a state prisoner has one year from the date his state

court judgment becomes final on direct review to file an application for a writ of

habeas corpus in federal court. 28 U.S.C. § 2244(d)(1). There is no dispute here

that Smith’s federal petition, which he filed on July 19, 2005, was filed well more

than one year after October 2, 2000, “the date on which [his state court] judgment

became final by the conclusion of direct review[.]” Id.

      AEDPA provides that the one-year deadline is statutorily tolled during the

time in which “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) (emphasis added). Smith, therefore, had one year from October 2,




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2000 in which to properly file his state petition pursuant to Rule 32 of the Alabama

Rules of Criminal Procedure, (“Rule 32 Petition”), so as to toll the federal deadline.2

                                    II.      Factual Background

       After his direct review was concluded, Smith sought new counsel to represent

him in his state and federal post-conviction proceedings. In late 2000, volunteer

lawyers and law students working with the Equal Justice Initiative (“EJI”) prepared

a draft Rule 32 petition for Smith. However, the EJI attorneys’ busy caseload did

not permit them to represent Smith in court. Thus, in early 2001, EJI tried to recruit

an attorney to take Smith’s case pro bono.

       On March 8, 2001, an EJI attorney wrote Smith a letter informing him that EJI

was looking for someone to represent him and that they had several months in which

to find someone. The EJI attorney letter to Smith stated:

       [T]he students this fall helped prepare a petition for you to file pro se if
       a lawyer is not found. That will ensure that you don’t miss any
       deadlines. . . . We will continue to look for someone for you in the next
       couple of months. . . . In the meantime, as we look for counsel, know
       that a petition is being drafted for you so that you will not miss your
       deadline.



2
  Under Alabama’s rules of criminal procedure in effect at the time of Smith’s state court
proceedings, the state statute of limitation for a Rule 32 Petition was two years from the date when
the state appellate court issued its Certificate of Judgment of his conviction and death sentence.
Thus, the deadline by which Smith had to file his Rule 32 Petition to comply with the state’s filing
limitation rules was later than the date by which Smith had to file that same petition in order to toll
the AEDPA filing deadline.
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      In July 2001, Tennessee attorney William Massey agreed to represent Smith

in his Rule 32 proceedings. On July 26, 2001, EJI Executive Director Bryan

Stevenson, a lawyer, sent Massey a letter thanking him for agreeing to represent

Smith. Stevenson told Massey that EJI staff was “putting together the case

materials for [Smith’s] case,” and the letter enclosed “a copy of [EJI’s]

postconviction manual.” Stevenson’s letter stated that he expected to “speak with

you [Massey] by phone before Friday, July 27, about case name and details and

[will] send a record to you.”

      Also on July 26, 2001, EJI’s Stevenson wrote Smith a letter, informing him

that Massey had “agreed to take your case” and that Smith would “hear from him

[Massey] very soon.” Stevenson’s letter to Smith further stated: “To make sure that

you can appeal your case in federal court, a preliminary Rule 32 petition may first be

filed, followed later by an amended petition after Mr. Massey learns more about

your case.”

      Because Massey was not admitted to practice in Alabama, he needed local

counsel in Smith’s Rule 32 proceedings. C. Wade Johnson, an Alabama attorney,

agreed to act as local counsel. The circumstances of Johnson’s agreeing to

represent Smith are unclear, but Smith states that Massey “recruited” Johnson.

      On September 27, 2001, within AEDPA’s one-year period for statutory

tolling, Smith’s attorneys filed the Rule 32 Petition with the state court. However,
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Smith’s attorneys Massey and Johnson failed to include either the filing fee or a

motion to proceed in forma pauperis. It is unclear whether Johnson or Massey filed

the Rule 32 petition, but it is undisputed that Smith’s attorneys sent no filing fee or in

forma pauperis petition.

      The record suggests that Massey’s firm (through either Massey or another

attorney) filed the Rule 32 Petition and then sent a copy to Johnson. We say this

because the record contains a copy of a letter, dated September 26, 2001, from C.

Michael Robbins, an attorney at Massey’s firm, to Johnson that states, “Enclosed

please find a copy of the Petition filed September 28, 2001. Please call if you have

any questions or concerns.” The enclosure the letter contained is not in the record.

The Rule 32 Petition has Massey’s name and law firm address as well as Johnson’s

name and law firm address. The only signature on the petition is Johnson’s.

      On October 15, 2001—thirteen days after AEDPA’s limitations period had

run—Johnson’s law firm in Alabama informed Massey by letter that the Rule 32

Petition had been returned by the Clerk’s office with a note advising that “a filing fee

of $154.00, or informa [sic] pauperis, is required to file the Petition” and asked

Massey to “please submit the filing fee and the application for pro hac vice to our

office at your earliest convenience, so that we may get this Petition filed.” Smith’s




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filing fee was finally paid on February 6, 2002, at which time the state court

considered Smith’s Rule 32 Petition properly filed under Alabama’s filing rules.3

       Smith states in his brief that Massey paid the filing fee, and this assertion has

some record support, too. The filing fee was paid two days after an attorney for the

State informed Johnson (by letter) and Massey (by facsimile) that Smith’s state

limitations period was about to run. And by February 2002, Johnson was on

disability inactive status with the state bar and was not representing his clients any

longer. That leaves Massey.

       At some point on or before February 20, 2002, Massey found new local

counsel for Smith’s case. On March 25, 2002, Alabama attorney Brian M. White

entered an appearance for Smith. Attorney White later associated another Alabama

attorney, Charles Pullen. On October 2, 2002, Massey’s firm notified White and

Pullen that, given the two Alabama attorneys’ representation of Smith, Massey and

his firm would withdraw.

       White and Pullen represented Smith through the conclusion of the Rule 32

proceedings. After an evidentiary hearing, the state court eventually denied relief


3
  The state court’s “Case Action Summary” lists as the first action in the notes section the
handwritten notation of “Petition for relief—check received” with a date of February 6, 2002.
Additionally, the file-stamped copy of Smith’s Rule 32 Petition shows the original September 27,
2001 date crossed out, with a hand-written date and notation below it stating, “February 6, 2002
check received.” The state court’s docket does not identify who paid the fee, just that it was paid
by check.
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on all of Smith’s many claims in May 2003. The Alabama Court of Criminal

Appeals affirmed and the Alabama Supreme Court denied Smith’s petition for a writ

of certiorari on July 15, 2005.

                                  III.   Statutory Tolling

      Although the February 6, 2002 filing was timely under Alabama’s two year

statute of limitations, it was not within the one year statute of limitations required by

AEDPA. Relying on statutory tolling, Smith argues that we should consider the

Rule 32 Petition as having been “properly filed” on September 27, 2001, when it was

originally submitted to the Clerk, albeit without the filing fee or a motion to proceed

in forma pauperis. However, Alabama law precludes such a construction of

AEDPA’s requirement for a “properly filed” state petition. See Artuz v. Bennett,

531 U.S. 4, 8 (2000) (“[A]n application is ‘properly filed’ when its delivery and

acceptance are in compliance with the applicable laws and rules governing filings.”).

Alabama law requires that a Rule 32 petition “be accompanied by the filing fee

prescribed by law or rule in civil cases in the circuit court unless the petitioner

applies for and is given leave to prosecute the petition in forma pauperis.” Ala. R.

Crim. P. 32.6(a). Alabama courts have unequivocally required that one of these

formalities, either the payment of the filing fee or the filing of an in forma pauperis

motion, be completed in order for a Rule 32 petition to be considered properly filed.

See, e.g., Ex Parte Carter, 807 So. 2d 534, 536–37 (Ala. 2001) (holding that where
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neither a filing fee nor a motion to proceed in forma pauperis were filed with a Rule

32 petition, the Alabama circuit court lacked jurisdiction to consider the petition

precisely because the petitioner had omitted them); Hyde v. Alabama, 950 So. 2d

344, 353 (Ala. Crim. App. 2006) (“A Rule 32 petition is deemed filed for purposes

of the limitations period the date the petition, accompanied by a request to proceed

in forma pauperis, is submitted to the circuit court, not the date the circuit court

grants the request to proceed in forma pauperis.”); Clemons v. State, 55 So. 3d 314,

333-37 (Ala. Crim. App. 2003) (“[I]n this case, the petition that counsel attempted to

file on December 27, 1999, was not accompanied by a filing fee or a request to

proceed in forma pauperis. Therefore, the petition was not properly filed at that

time, as contemplated by Rule 32.6(a), Ala. R. Crim. Pro.”), rev’d on other grounds,

Ex parte Clemons, 55 So. 3d 348 (Ala. 2007), overruled in part by Hyde, 950 So. 2d

at 353. 4 Accordingly, we find no reversible error in the district court’s

determination that Smith’s federal habeas petition was time barred because it was


4
  Smith’s reliance on Hyde as support for his position is unpersuasive. In Hyde, the state court
was willing to treat the date of the original submission of the Rule 32 petition as the properly filed
date because the petitioner had fully complied with the state court filing fee rules by filing a
motion to proceed in forma pauperis and it was the court that caused the delay by not ruling on the
motion to proceed in forma pauperis for some time. 950 So. 2d at 353. Hyde’s rationale is
simply inapplicable here, where neither the filing fee nor motion for in forma pauperis was filed.
Nor do we find Garrett v. State, 644 So. 2d 977 (Ala. Crim. App. 1994), overruled by Ex parte
Jenkins, 972 So. 2d 159 (Ala. 2005), applicable to support Smith’s argument that his filing date
should relate back to the date that his petition was originally sent to the Clerk. Garrett addressed
the requisite form for a Rule 32 petition. It is not applicable to the circumstances here, especially
in light of the Alabama law explicitly addressing the failure involved in this case.
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not filed within AEDPA’s one-year statute of limitations, which was not statutorily

tolled because Smith’s Rule 32 Petition had not been “properly filed” during

AEDPA’s one-year limitation period. See 28 U.S.C. § 2244(d)(2).

                                 IV.    Equitable Tolling

      Turning to Smith’s final argument, we likewise find no error in the district

court’s determination that the circumstances surrounding his attorneys’ failure to

pay the state court filing fee or file an in forma pauperis motion entitle him to

equitable tolling of the federal filing deadline. 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 filing.” Holland v. Florida, 130 S. Ct. 2549, 2562

(2010) (internal quotation marks omitted); Lawrence v. Florida, 549 U.S. 327, 336

(2007).

      With regard to diligence, the defendant is required to exercise “reasonable

diligence” rather than “maximum feasible diligence.” Holland, 130 S. Ct. at 2565

(internal citations and quotation marks omitted). Our Court likewise has noted that

“due diligence . . . does not require a prisoner . . . to exhaust every imaginable option,

but rather to make reasonable efforts.” Aron v. United States, 291 F.3d 708, 712

(11th Cir. 2002). “[T]he due diligence inquiry is an individualized one that must


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take into account the conditions of confinement and the reality of the prison system.”

Id. (internal quotation marks omitted).

      In this case, we need not decide whether the facts establish that Smith was

sufficiently diligent in pursuing his rights because, in any event, Smith has not

demonstrated that an “extraordinary circumstance” prevented him from filing his

Rule 32 petition before the AEDPA limitations period expired. As to exceptional

circumstances, the general rule is that “when a petitioner’s postconviction attorney

misses a filing deadline, the petitioner is bound by the oversight and cannot rely on it

to establish cause.” Maples v. Thomas, 132 S. Ct. 912, 922 (2012). However,

there are circumstances where “an attorney’s unprofessional conduct can . . . count

as an ‘extraordinary circumstance’ justifying equitable tolling.” Id. at 923; see id.

at 927 (holding that the particular attorney misconduct in that case rose to the level

of abandonment of a client and constituted an extraordinary circumstance); see also

Holland, 130 S. Ct. at 2563 (rejecting a per se rule that “grossly negligent” attorney

conduct can never amount to a showing of extraordinary circumstances to warrant

equitable tolling).

      Smith argues that in Holland, the Court did not limit its consideration of

Holland’s claim to the simple failure to timely file the federal petition, but addressed




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all of the surrounding circumstances 5 when concluding that Holland’s lawyer’s

misconduct may have constituted “far more than ‘garden variety’ or ‘excusable

neglect.’” Id. at 2564. Smith argues that the conduct of Massey and Johnson

likewise constituted abandonment or, at the minimum, such a gross breach of

professional conduct that he has satisfied the extraordinary circumstances element

for equitable tolling under Maples and Holland. Specifically, Smith argues that

Johnson, his Alabama counsel, was unable to competently represent him at the time

he was supposed to properly file his Rule 32 Petition and in post-conviction

proceedings generally, as a result of Johnson’s long and ongoing history of abuse of

prescription drugs and crystal methamphetamine. Smith points out that while

Johnson was supposed to be representing Smith, he was on probation for a public

intoxication conviction and often required assistance from other attorneys in

handling his cases due to his drug addiction. The affidavit of Johnson’s former

legal assistant asserted that Johnson was often intoxicated when he came into the

office and that, upon occasion, his staff had to retrieve Johnson from his home in


5
   These circumstances included failing to file Holland’s federal habeas petition on time “despite
Holland’s many letters that repeatedly emphasized the importance of his doing so,” failing to
research the proper filing deadline “despite Holland’s letters that went so far as to identify the
applicable legal rules,” not informing Holland in a timely manner that the Florida Supreme Court
had ruled on his case “despite Holland’s many pleas for that information,” and an ongoing lack of
communication from Holland’s lawyer “despite various pleas from Holland that [the attorney]
respond to his letters.” Holland, 130 S. Ct. at 2564. The Court concluded that these various
violations of “fundamental canons of professional responsibility . . . seriously prejudiced”
Holland. Id. at 2564–65.
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order to prepare him to attend court. Less than a month after Smith’s Rule 32

Petition was submitted to the Alabama state court improperly on September 27,

2001, Johnson was charged with nine counts of possession of a controlled substance,

and shortly thereafter, the Alabama State Bar appointed a supervising attorney to

take over Johnson’s files, transferring him to disability inactive status. During the

same time period, Smith alleges that Johnson experienced personal financial

problems, including a voluntary bankruptcy filing. Finally, in August 2002,

Johnson committed suicide.

      Smith points out that the mere failure to pay the filing fee or to submit an in

forma pauperis motion with his Rule 32 Petition is akin to the failure to timely file a

federal petition in Holland. Yet, he argues, the circumstances surrounding

Johnson’s so-called representation of Smith were as, if not more, egregious than the

violations of the “fundamental canons of professional responsibility,” that the Court

in Holland suggested could constitute “extraordinary circumstances.” Holland, 130

S. Ct. at 2564.

      However, even if Smith establishes that Johnson’s conduct constitutes an

extraordinary circumstance that contributed to the failure to toll the federal deadline,

he must also show the same for his out-of-state attorney, Massey. Smith alleges

that Massey never obtained pro hac vice status in Alabama, and therefore, if Massey

had tried to file the Rule 32 Petition without Johnson, the Rule 32 Petition would
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have been stricken due to Massey’s failure to obtain pro hac vice admission in

Alabama. See Black v. Baptist Med. Ctr., 575 So. 2d 1087, 1088 (Ala. 1991)

(concluding that a complaint filed by an out-of-state attorney who had no local

counsel at the time and who failed to comply with Alabama’s mandatory pro hac

vice rules “was a nullity”). As a result of his failure to obtain pro hac vice

admission in Alabama, Smith argues Massey was unauthorized to act on Smith’s

behalf in his state court proceedings, thereby constituting abandonment. Smith also

points to Massey’s withdrawal from his representation in October 2002 as further

evidence of Massey’s abandonment.

       Here, we cannot say that Massey’s conduct constitutes abandonment of

Smith. Massey undertook to represent Smith in July 2001. Although the record

does not contain evidence of what communications took place between Smith and

Massey—neither Smith himself nor Massey submitted an affidavit in the district

court—we know that EJI informed Smith on July 26, 2001 that Massey had agreed

to represent Smith and would be contacting him. And Massey took steps on

Smith’s behalf, both before and after the AEDPA limitations period ended: Massey

put his name on Smith’s Rule 32 Petition, 6 he apparently filed the Rule 32 Petition



6
 It is unclear to what extent, if any, Massey edited the draft Rule 32 Petition prepared for Smith by
EJI. Massey may have edited the petition heavily or he may have barely changed it at all, but at a
minimum he added his name to it or authorized that it be added.
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and certainly sent a copy to Johnson in September 2001, and he paid the filing fee in

February 2002. And as to the pro hac vice issue, Massey did not file the Rule 32

Petition without having local counsel and thus his not seeking pro hac vice status did

not cause the petition to be stricken. Massey’s pro hac vice status is of no moment

because local counsel was listed on the petition and local counsel’s signature was on

it, too. Also, in February 2002, Massey found new local counsel to replace Johnson

after learning that Johnson had been placed on disability inactive status. Massey

did not withdraw from representing Smith until October 2002, after Alabama

attorneys White and Pullen agreed to take Smith’s case and a full year after Smith’s

AEDPA statute of limitations had run.

      Furthermore, none of the circumstances that the Supreme Court found

constituted attorney abandonment in Maples apply to Massey. Massey did not

leave his firm and take a new job that disqualified him from representing Smith, as

Maples’ out-of-state attorneys both did. See Maples, 132 S. Ct. at 924. Nor did

Massey make clear at the outset of his representing Smith that he was not

undertaking any substantive or meaningful responsibility for the case, as Maples’

local counsel did. See id. at 926. In short, this is not a case, like Maples, where the

petitioner’s attorneys were “not operating as his agent[s] in any meaningful sense of

that word.” Id. at 923 (quotation marks and citation omitted). EJI recruited

Massey and sent him a draft Rule 32 Petition; Massey voluntarily took on the case,
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recruited local counsel, and saw that Smith’s Rule 32 Petition was submitted to the

Alabama state court. Massey simply did not include the required fee or in forma

pauperis motion to make the Rule 32 Petition’s filing proper.

       Although Massey did neglect to move for pro hac vice status, this fact alone

does not constitute abandonment of Smith under the particular facts of this case. 7

Massey was not admitted to practice in Alabama, but he recruited Johnson, who was.

Massey was in a co-counseling arrangement in which he understood that Johnson

would act as local counsel and was aware that Johnson’s name and signature line

were on the Rule 32 Petition. After Massey learned that Johnson was on disability

inactive status with the Alabama bar, he obtained new local counsel. Smith points

7
  The facts here are materially different from Maples. There, Maples’ two out-of-state attorneys
of record did not file a notice of appeal timely and abandoned him by leaving their firm and
stopping work on his case without seeking court permission to withdraw from the case or telling
Maples they were leaving. 132 S. Ct. at 919, 924–25. Although there was some evidence that
other lawyers at that same firm had worked on Maples’ case, that did not matter because the other
attorneys “had not been admitted to practice law in Alabama, had not entered their appearances on
Maples’ behalf, and had done nothing to inform the Alabama court that they wished to substitute
for” the departed attorneys, and thus “none of these attorneys had the legal authority to act on
Maples’ behalf before his time to appeal expired.” Id. at 925–26. The other attorneys’ failure to
inform the court that they were working for Maples and obtain the court’s authorization to act for
him loomed large because this failure—combined with Maples’ abandonment by his attorneys of
record—meant that no one representing Maples obtained a copy of the court’s order denying his
Rule 32 petition in time to file an appeal, causing his claims to be procedurally barred. Id. at 916–
17, 924–26.
   Here, by contrast, Massey timely filed a Rule 32 Petition but was negligent in not sending the
filing fee or in forma pauperis application. Massey also (1) put his name on Smith’s Rule 32
petition, thus informing the court of his intention to represent Smith, (2) properly retained an
Alabama attorney to act as local counsel and to sign and serve the Petition, and (3) replaced the
local counsel after learning he could not serve and found new local counsel who entered an
appearance in the case. Moreover, the error here was not abandonment but failure to timely pay a
filing fee, which Massey could have paid (and ultimately did pay) on Smith’s behalf.
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out that Massey’s failure to obtain pro hac vice status “mean[t] that if the Rule 32

petition had been filed by Mr. Massey’s firm, the court could have stricken it on that

basis,” but the Rule 32 Petition also bore Johnson’s name and a signature by (or on

behalf of) Johnson. Moreover, Smith has made no allegations that Massey, on or

before October 2, 2002, when Smith’s AEDPA limitations period expired, was

aware of Johnson’s significant personal and professional troubles such that Massey

should have known that Johnson effectively was incompetent to represent Smith and

that Massey was in effect Smith’s only lawyer. And of course, the Rule 32 Petition

was never stricken because of any pro hac vice issue. It was sent back only for lack

of a filing fee or in forma pauperis motion. Further, when Massey paid the filing

fee, the Rule 32 Petition was accepted.

      Thus, Smith has not shown that his attorney Massey abandoned him. Nor

has Smith shown that Massey’s failure to include the filing fee or in forma pauperis

motion with Smith’s Rule 32 Petition differs from simply missing a filing deadline

which, by itself, is attorney error that constitutes no more than “garden variety” or

“excusable neglect.” Holland, 130 S. Ct. at 2564.

      Accordingly, we cannot say that Smith has alleged facts that, if proven true,

would constitute extraordinary circumstances sufficient for equitable tolling of the




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federal habeas filing deadline, and therefore conclude that the district court did not

err in dismissing Smith’s federal habeas petition as untimely. 8

       AFFIRMED.




8
  For the reasons stated herein, we also find no error in the district court’s denial of Smith’s request
for an evidentiary hearing on his equitable tolling claim.
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BARKETT, Circuit Judge, dissenting:
      For the reasons articulated in my concurring opinion in Hutchinson v. Florida,

677 F.3d 1097 (11th Cir. 2012) (Barkett, J., concurring in result only), I believe that

it is unjust and inequitable to require death row inmates to suffer the consequences

of their attorneys’ negligence by denying them equitable tolling. Here, although I

agree with the majority that Smith is not entitled to statutory tolling of the federal

habeas filing deadline, I believe that Smith has alleged sufficient facts regarding

both Johnson’s and Massey’s conduct that, if true, merit the finding of extraordinary

circumstances for equitable tolling. At the minimum, Smith should be afforded an

evidentiary hearing to determine if his attorneys abandoned him or engaged in

egregious attorney misconduct sufficient to warrant equitable relief.

      Although the majority declines to decide whether Smith was diligent in

pursuing his rights, I believe that Smith’s allegations, if proven true, would be

sufficient to establish diligence for purposes of equitable tolling. Smith alleges that

as soon as his direct appeal concluded he persistently attempted to obtain pro bono

counsel through the Equal Justice Initiative for his state and federal post-conviction

proceedings and was reassured that they would find him a lawyer and that his

deadlines would not be missed. He alleges that once he was advised that Massey

had agreed to represent him, he was again reassured that his state and federal

petitions would be timely filed. Smith then alleges that he received a date-stamped

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copy of his Rule 32 Petition with the state court clerk’s date-stamp of September 27,

2001. Smith argues that he reasonably assumed that this cover page was

confirmation that his Rule 32 Petition had been timely filed on September 27,

2001—the date that was stamped by the court on the caption page. He further

alleges that he had no reason to suspect that he was not being represented by

competent counsel or that his counsel had failed to pay the required filing fee or

submit the in forma pauperis motion with his Rule 32 Petition. He alleges that he

did not discover for some time that Massey had never been properly admitted to

represent him in Alabama by failing to move for pro hac vice admission; that

Johnson was struggling with personally and professionally crippling problems due

to his drug addiction; 1 or that Johnson withdrew from his case and had a trustee

appointed to protect the interests of his clients as of November 26, 2001, at which

time he still did not have a properly filed Rule 32 Petition.2 Moreover, once the

filing fee had been paid in a timely manner under the state rules, the state court

proceeded to adjudicate the merits of Smith’s Rule 32 Petition. When Smith’s state

court post-conviction proceedings eventually concluded upon the Alabama Supreme


1
  The district court noted that Smith was unaware that Johnson had a severe drug addiction “which
resulted in his suspension by the Alabama Bar within three months of the filing [of the September
27, 2001] Rule 32 petition and [his] eventual suicide.”
2
  Smith also alleges that, Patricia Lackey, the court appointed trustee of Johnson’s affairs, was
unaware that Smith was a death penalty client when she began making inquiries to obtain Smith’s
contact information.
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Court’s denial of Smith’s petition for writ of certiorari on July 15, 2005, Smith

immediately, on July 19, 2005, filed his federal habeas petition. Under these

circumstances, in which Smith has alleged that all of the information provided to

him indicated that he had competent legal representation and that his state and

federal filing deadlines had been met, I would find that reasonable diligence did not

require him to make any additional inquiries as to whether his Rule 32 Petition had

been properly filed in order to toll his federal habeas limitation period. 3

       Moreover, Smith also demonstrated that extraordinary circumstances

prevented the timely filing of his federal habeas petition, which contrary to the

majority opinion, I believe Smith has adequately alleged. Although Johnson’s and

Massey’s failure to pay the appropriate filing fee by itself would not suffice to

establish an extraordinary circumstance for equitable tolling, see Maples v. Thomas,

132 S. Ct. 912, 922 (2012), I believe that Smith has adequately alleged that all of the

circumstances surrounding both of his attorneys’ conduct constituted “far more than

[a] ‘garden variety’ [claim of attorney negligence] or ‘excusable neglect,’” Holland

v. Florida, 130 S. Ct. 2549, 2564 (2010). Johnson’s substantial professional and

personal problems stemming from his long and ongoing history of drug addiction


3
  The district court’s determination to the contrary that Smith’s allegations demonstrate “complete
inaction” and “cannot rise to the level of due diligence” because he “never expressed concern over
the running of the AEDPA statute of limitations to either his counsel or the state court system” is
thus clearly erroneous.
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and Massey’s failure to obtain pro hac vice status in Alabama constituted

abandonment or at a minimum, a gross breach of professional conduct sufficient to

establish extraordinary circumstances for equitable tolling.

      From the beginning of his so-called representation of Smith, Johnson was on

probation for a public intoxication conviction and was actively abusing prescription

drugs and crystal methamphetamine. Reportedly, he often came to his office in a

state of intoxication and on occasion had to be retrieved from his home by his office

staff in order to attend court hearings. From time to time, he also had to call on

other attorneys to assist him in handling his cases. A few months after taking on

Smith’s case, Johnson was charged with nine counts of possession for a controlled

substance after prison officials, at a state prison where Johnson was visiting a client,

noticed Johnson’s dog had been left locked in his car and upon opening the car,

discovered a bag filled with prescription drugs and crystal methamphetamine.

Soon thereafter the Alabama State Bar placed Johnson on disability inactive status

and appointed a trustee to take over his cases. In addition to his severe drug

addiction, Johnson had his own personal bankruptcy litigation to contend with

during the time he was supposed to be representing Smith. And about one year

after Johnson took on Smith’s case, he committed suicide.

      These allegations are sufficient to show an egregious breach of Johnson’s

professional ethical obligations to Smith, which, I believe, constitute the sort of
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extraordinary circumstances that merit equitable relief under Holland and Maples.

Johnson’s alleged conduct was comparably egregious to the violations of the

“fundamental canons of professional responsibility,” that the Court in Holland

suggested could constitute “extraordinary circumstances. 130 S. Ct. at 2564; see

also Model Rules of Prof’l Conduct R. 1.16(a)(2) (2009) (stating that an attorney

must withdraw from representation if the “lawyer’s physical or mental condition

materially impairs the lawyer’s ability to represent the client.”); Robertson v.

Simpson, 624 F.3d 781, 784 (6th Cir. 2010) (concluding that, under Holland, an

attorney’s misadvice about a deadline due to cocaine use might constitute an

extraordinary circumstance). At the minimum, the district court should have

granted Smith an evidentiary hearing to allow him to develop the full factual basis of

his claim for equitable tolling.

      Moreover, I believe that Massey’s failure to obtain pro hac vice status in

Alabama, when considered in conjunction with Johnson’s inability to competently

represent Smith, is sufficient to constitute abandonment under Maples. Although

Massey agreed to represent Smith, he never sought admission under Alabama’s

mandatory pro hac vice rules and therefore was never authorized to represent Smith

in the Alabama state court proceedings. See Black v. Baptist Med. Ctr., 575 So. 2d

1087, 1088 (Ala. 1991) (holding that a pleading filed by an out-of-state attorney who

has failed to comply with Alabama’s mandatory pro hac vice rule, is to be stricken as
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a “nullity”). Indeed, Smith’s allegations indicate that, other than agreeing to

represent Smith and then a year later “withdrawing” from Smith’s case, Massey did

very little else. Smith alleges that neither Massey nor Johnson prepared the Rule 32

Petition that was filed in his case; they merely filed, albeit improperly, the Rule 32

Petition that had been prepared by a group of law student interns for the Equal

Justice Initiative. Not only did Massey fail to seek admission to practice in

Alabama and fail to properly file the already-prepared Rule 32 Petition, but even

when he was advised by Johnson’s office in October 2001 that he needed to

complete the pro hac vice process and to pay the required filing fee, he did nothing.

Indeed, it was not until several months later and only after the assistant attorney

general for the state advised Johnson (who was no longer Smith’s attorney due to his

disability inactive status) that the state two-year statute of limitations would expire

in four days that Massey paid the filing fee. The only other affirmative step that

Massey took on behalf of Smith was to find new local counsel and withdraw from

representing Smith.

      I do not see any material difference between the circumstances surrounding

Massey’s inaction and the attorney conduct in Maples, which the Court concluded

constituted abandonment. 132 S. Ct. at 927. In Maples, the Court noted that once

the out-of-state attorneys of record left their law firm, no other attorneys from the

firm had been admitted to practice law in Alabama, entered their notice of
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appearance on Maples’ behalf, or did anything to indicate that they had the legal

authority to act on Maples’ behalf. Id. at 925–26. Under these circumstances, the

Court concluded that no matter what work the attorneys may have done in their law

office, none of them had the legal authority to act on Maples’ behalf. Id. at 926.

The same can be said for Massey’s role in Smith’s case. His failure to obtain pro

hac vice status in Alabama, a qualification required to represent Smith in Alabama

state court proceedings, rendered him without any legal authority to act on behalf of

Smith at the time critical to preserving Smith’s legal rights. And because Johnson

was never competent to represent Smith, see Model Rules of Prof’l Conduct R.

1.16(a)(2) (providing that an attorney must withdraw from representing a client if

“the lawyer’s physical or mental condition materially impairs the lawyer’s ability to

represent the client”), neither Massey nor Johnson ever meaningfully functioned as

Smith’s attorneys.




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