Amicus Curiae Brief — Lawrence v. Florida

oy

No. 05-8820

IN THE

Supreme Court of the United States

i tit

GARY LAWRENCE, ;

Petitioner,

—Voe

FLORIDA,

Respondent.

um ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

° BRIEF AMICUS CURIAE OF

THE AMERICAN CIVIL LIBERTIES UNION

AND THE ACLU OF FLORIDA IN SUPPORT OF PETITIONER

JOHN HOLDRIDGE

Counsel of Record

BRIAN W. STULL

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

201 West Main Street, Suite 402

Durham, North Carolina 27701

(919) 682-5659

STEVEN R. SHAPIRO

. AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

125 Broad Street

New York, New York 10004

LARRY W. YACKLE

BOSTON UNIVERSITY

SCHOOL OF LAW

765 Commonwealth Avenue

Boston, Massachusetts 02215

ARGUMENT

TABLE OF CONTENTS

A PETITIONER’S DETRIMENTAL

RELIANCE ON FLORIDA’S

REPRESENTATION THAT ITS

COURTS WILL MONITOR THE

PERFORMANCE OF HIS REGISTRY

ATTORNEY TO ENSURE “QUALITY

REPRESENTATION,” INCLUDING

THE FILING OF “APPROPRIATE

MOTIONS IN A TIMELY MANNER,”

IS AN EXTRAORDINARY

CIRCUMSTANCE WARRANTING

APPLICATION OF EQUITABLE

TED Wibsiielcibiniivitiintnciiinniiianiitinaimiivmnieapsn

A. Detrimental Reliance on Florida’s

Pledge That Its State Courts Will

Ensure That Registry Counsel Is

Providing Quality Representation,

Including The Timely Filing Of

Motions, Is An Extraordinary

Circumstance Warranting Equitable

ee iiciindiedisiatuicitadannihscinediissnpiachinverntadiveia

SOPH HSER HEHE CHEE HET EREEEE EE

SECRETE HEHEHE EOE EEE HE

SOOT EEE EEE EEE EEE EEE EEEEEEHEEEEOHEEHE EEE E TEESE

B. Florida Has Not Fulfilled Its Pledge

That “Quality” Counsel Will File

Appropriate Pleadings “In A Timely

Manner

C. Florida Has Long Known That Its

Registry Counsel System Is In

Crisis, Including Repeated

Failures To File Timely Pleadings................00+«

CONCLUSION

SPSS EEE SH ETE SESE EET EEEEE EERE EEE EEE ES HEHEHE EEE OHO CEES

ii

15

TABLE OF AUTHORITIES

~ Page

CASES

Abela v. Martin,

348 F.3d 164 (6th Cir. 2003) 20.0... esesseseseenseseeees 4

Asay v. Crosby, No. 05 Civ. 00147,

Order (M.D. Fla. Feb. 27, 2006)..........:ssssceseeerereseess 19

Banks v. Crosby, ino. 03 Civ. 0032,

Dec. and Order (N.D. Fla. July 29, 2005).............0004 17

Banks v. Horn, 271 F.3d 527 (3d Cir. 2001),

rev'd on other grounds, 536 U.S. 266 (2002)............ 10

Burger v. Scott,

SUT B.3S 1133 CEG Cir. 2OGB) .cccccccvsscccccescsscesccsessscees ]

Coates v. Byrd,

211 F.3d 1225 (11th Cir. 2000) 2000.0... ceceeeeeeeesseeenees 3

Cole v. Crosby, No. 05 Civ. 222,

2006 WL 1169536 (M.D. Fla.

May 3, 2006), COA request pending,

EEA RO TO 16

Corjasso v. Ayers,

Fe eg CO Gals ED Seencercenstinsscesinntonocssnonsane 10

Downs v. Crosby, No. 01 Civ. 139,

Dec. and Order (M.D. Fla. Oct. 21,

2004), COA request pending,

a Re 0 Pee Gd asin cn sectncsecisssnrnsngicnnincisinnesninns 17

Foster v. Crosby, No. 03 Civ. 109,

Dec. and Order (N.D. Fla. Dec. 13,

2004), COA denied, 05-10344

(11th Cir. Sept. 30, 2005), cert. pending ...............00+ 17

Griffin v. Rogers,

399 F.3d 626 (6th Cir. 2005) .............csccccsescesessssesserees 9

Hallstrom v. Tillamook County,

ee ee ee ircosetnetninndnienisencereietetriinninietaiadins 14

Hensley v. Mun. Court,

Se sa IT os) street naiandechacibishniticiaetalenbileiindaa 15

House v. Bell, US._, |

2006 WL 1584475 (June 12, 2006) 200.0... cece cceeeseeee 15

Howell v. Crosby, 415 F.3d 1250

(11th Cir. 2005), cert. denied, US. ,

irc ii steisscinnihstisdnchidsinminisotaelienantdisbentines 16

In re Rules of Criminal Procedure

3.851 & 3.850, 719 So. 2d 869 (1998) ....... 2, 3, 11, 20

Keenan y. Bagley,

Fe ee FE ale BI covincscnessicccnsastodseenenntennecda 9

King v. Bell,

Be Fe re IE Ga, AIOE vescnsechnsovenczsosssinionnentsenpennis 9

Knight v. Schofield, —

292 F.3d 709, (11th Cir. 2002) (per curiam)............0+ 9

Marsh v. Soares,

SD Fe BEEF COE Re OOD sccicrsnvsisscncintiniencicisiass 8

iV

Merritt v. Blaine,

ee be 8

Murray v. Giarratano,

es Be tt tinrindstetncinsncenenicetceiecieianmaninadiiininiie 13

Pace v. DiGuglielmo,

Ne Cs Se terrterticivrnsmntinnininnne 8,12

Pliler v. Ford,

ee Re ee rraiteiniedbcnisennciiptiarienibamiiaiiaiatitin 8

Reed v. Ross,

FE as BC cniersetacnsinncnenien hibiiteintininiindicinianinibiie 15

Rhines v. Weber,

Pe as ee Ge Miiciscuidsbsctenabcaieiiernceanee 12, 13, 15

Rouse v. Lee,

339 F.3d 238 (4th Cir. 2003)........... sichhcdihdiidohiinatiis 10

Sandvik v. United States,

177 F.3d 1269 (11th Cir. 1999) (per curiam).............. S

Stillman v. LaMarque,

319 F.3d 1199 (Sth Cir. 2003) ............cccccccscsessseerseres 10

Strickland v. Washington,

Re eres Ce ee ikitiinsicndes seactdteuntinesabtiiendatamsanniniiia 14

Sweet v. Crosby, No. 03 Civ. 00844,

Dec. and Order, (M.D. Fla. Aug. 5,

2005), appeal pending, No. 05-15199

C0 DEP Rae Dicinclcicinicinnpiinhintentiabpbisccondistaithceindivnidpuiitisentaniabchadoiie 17

Wainright v. Crosby, No. 05 Civ. 0027,

Dec. and Order, (M.D. Fla. Mar. 10,

2006), appeal pending (1 1th Cir.)......:......c000 16, 17

Williams v. Taylor,

IEE ceveieintnreticrcetenenrermentecerensions 12, 15

Young v. United States,

ee IE icinctees evcestspcsnapsinstnsctececightatainttionate 14

STATUTES AND KULES

es i Se i cictirennssiabemncetetichnnapsinonsetstrienedietoeapahes 14

Se tins SET dn inrinciicasncinistpinesteimednenntetnntatnienes 3,8

EATS 2

Sse SP See deste decieccietnteneestiniiasnccwuntan 3,4, 10

1998 Fla. Laws ch. 98-197, § 3...ccccccscccsscssessscessesecessecesses 6

2000 Fla. Laws ch. 2000-3, § U1 .......cceecccsceesseesereseeneeeees 6

2003 Fla. Laws ch. 2003-399, § 84..cccsccocesesocesnssesnsseee 6

Pc A AEDS CPP OPED petotscencvecesncesbebescosensncoseinéanecs 6

PLA. STAT. ANN. $8 27.701(2) ......cccccccccccosscccsesevesees 2, 5,6

FLA. STAT. ANN. § 27.709 .........ccccccccceeeeeees pviehiaiacehiiiallite 21

FLA. STAT. ANN. § 27.710 ......cccsessvecsesseceseseversesseren 2, 5,6

ae 8 | EEO 6, 20

vi

FLA. STAT. ANN. § 27.71 1(1)(C) ..-cececsocsseserenrvenssnsnsesnes 5,7

FLA. STAT. ANN. § 27.711(12) ..........-0cece0000 3, 5, 7, 19, 20

JS FF §) 3, | 21

Bed: BR, FG, BPE cenngssrceicenerncciminnenis 15

Pee ie: HEI edecnecateonssestccsennsapmnemeinestetnernnestaniits 2

United States District Court for the

Northern District of Florida

Local Rule 11.1(D)...ssssssssssssessssessesssesseecssseesseeeseeeeeees 13

United States Supreme Court Rule 37.3 .....00...cc.cccereeseeees |

United States Supreme Court Rule 37.6 ...........::ccscceeserees l

OTHER AUTHORITIES

ABA GUIDELINES FOR THE

APPOINTMENT AND PERFORMANCE

OF DEFENSE COUNSEL IN DEATH

PENALTY CASES, No. 10.15.1

ee eR ctttntinipnesintscttniicticnincutnntnints 13

Jo Becker, System May Be Slowing

Appeals: Introduced as a Way to

Streamline the Death Penalty Process,

a Registry System Using Private

Defense Attorneys Has Led to

Delays, Critics Say, St. PETERSBURG

TIMES, July 17, 2000, at LB... cece eeeeees 18, 19, 22

Vii

Death Appeals Not Quite Dead,

DAILYBUSINESS REVIEW.COM,

April 30, 2003, elptnatpay

Carl Jones, State Officials Appeal to

Florida Supreme Court on Attorney —

Fee Caps, DAILYBUSINESSREVIEW.CoM,

May 15, 2006, at http://www.aclufl.org/

news_events/alert_archive/index.cfm

?action=viewRelease& emailAlertID=1856............. 20

Jan Pudlow, Justice Rips Shoddy

Work of Private Capital Case

Lawyers, THE FLORIDA BAR NEWS,

biti etteenichialeiarenishettipitigtmasigemaliontin 20, 21

United States District Court for the

Northern District of Florida Official

Court Electronic Document Filing

System website at https://ecf.flnd.

uscourts.gov/ cgi-bin/login. pl ............c..cseeeeeeees 16, 17

Vill

INTEREST OF AMICI

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with more

than 500,000 members dedicated to the principles of liberty

and equality embodied in the Constitution. The ACLU of

Florida is one of its statewide affiliates. Amici respectfully

submit this brief to assist the Court in resolving a

fundamental issue of equity under the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA): Can the state

represent to death-row inmates that it will provide them with

“quality” counsel in postconviction proceedings, and then

argue that their federal habeas petitions should be dismissed

because appointed counsel missed a crucial filing deadline?

Given its longstanding interest in fair and meaningful access

to the courts, the proper resolution of that question is a

matter of substantial importance to the ACLU and its

members.

STATEMENT OF THE CASE

In March 1995, petitioner Gary Lawrence was

convicted of premeditated murder in the first degree and

conspiracy to commit murder, and sentenced to death. See

Lawrence v. Florida, 421 F.3d 1221, 1222 (11th Cir. 2005).

On August 28, 1997, the Florida Supreme Court affirmed his

convictions and death sentence. See Lawrence vy. State, 698

So.2d 1219 (Fla. 1997). This Court denied certiorari on

January 20, 1998, concluding direct review of Lawrence’s

' Pursuant to Rule 37.3, letters of consent to the filing of this brief have

been lodged with the Clerk of the Court. Pursuc ot to Rule 37.6, counsel

for amici curiae state that no counsel for a party authored this brief in

whole or in part and no person other than amici curiae, their members or

their counsel made a monetary contribution to this brief.

l

conviction. Lawrence v. Florida, 522 U.S. 1080 (1998).

Although Florida law requires its supreme court to

appoint postconviction counsel when the court issues its

“mandate affirming a judgment and sentence of death,” FI.

R. Crim. P. 3.851, Gary Lawrence was not appointed counsel

until August 10, 1998, see Case Information/Progress Docket

— Santa Rosa, Florida (Case #94000397CFMA), close to

seven months after His conviction had become final and more

than ten months after the Florida Supreme Court had issued

its mandate. See Lawrence vy. State, No. SC60-85725,

Docket Entry of Oct. 2, 1997 (Fla) (available at

http://www. floridasupremecourt.org/). Appointed counsel

moved to withdraw on August 31, 1998. Case

Information/Progress Docket — Santa Rosa, Florida (Case

#94000397CFMA). Lawrence did not receive counsel who

took an active role in representing him until November 5,

1998, when the motion to withdraw was granted and counsel

from Florida’s statutory “registry” system was appointed.

Id.; see FLA. STAT. ANN. §§ 27.701(2); 27.710.

During this period, Florida was in the beginning

stages of implementing a new system of providing capital

postconviction representation to some death-row inmates

through a “registry” of private attorneys. See generally In re

Rules of Criminal Procedure 3.851 & 3.850, 719 So. 2d 869,

870 (1998). As a result of the chaos-created by this

transition, in 1998 the Florida Supreme Court took the

extraordinary step of tolling the statute of limitations for

? AEDPA’s one-year statute of limitations for federal habeas petitions

runs from the “conclusion of direct review” of the state court judgment,

including the time for filing for certiorari or the time necessary for the

certiorari petition to be resolved. 28 U.S.C. § 2244(d)(1)A). Thus,

Lawrence’s one-year limitations period under AEDPA began to run on

January 20, 1998. The conclusion of direct review also triggered

Florida’s one-year statute of limitations for seeking state postconviction

relief. See Fla. R. Crim. P. 3.851.

state postconviction motions filed on behalf of Lawrence and

other death-row inmates who were likely to be appointed

registry attorneys. 719 So.2d at 870 & app. B.

When registry counsel was appointed on November

5, 1998, only 67 days remained for Lawrence to file either a

state postconviction motion which would have tolled

AEDPA’’s statute of limitations or a federal habeas petition.’

Counsel filed Lawrence’s motion for state postconviction

relief on January 19, 1999, with only one day remaining on

AEDPA’s clock. This motion remained pending in the

Florida courts until November 18, 2002, when the Florida

Supreme Court affirmed the trial court’s denial of state

postconviction relief, Lawrence v. State, 831 So.2d 121 (Fla.

2002), and issued its mandate. See Lawrence v. State, No.

$C01-674, Docket Entry of Nov. 18, 2002 (Fla.) (available at

http://www. floridasupremecourt.org/).

Under the current law in the Eleventh Circuit,

Lawrence had one day from November 18, 2002, to file a

petition for federal habeas corpus. See Coates v. Byrd, 211

F.3d 1225, 1227 (11th Cir. 2000) (“[T]he time during which

a petition for writ of certiorari is pending, or could be filed,

following the denial of collateral relief in state courts, is not

to be subtracted from the running of time for 28 U.S.C. §

2244(d)(1) statute of limitations purposes.”). But instead of

filing a petition for habeas corpus on November 19, 2002,

Lawrence’s registry attorney filed a petition for certiorari in

this Court on January 9, 2003. Court-appointed and court-

monitored,’ registry counsel pursued this course because he

was under the mistaken belief that the limitations period

3 AEDPA’s one-year limitations period is tolled during the pendency of

“a properly filed application for State post-conviction or other collateral

review.” 28 U.S.C. § 2244(d\2).

* Florida law requires that its courts “shall monitor the performance of

assigned [registry] counsel to ensure that the capital defendant is

receiving quality representation.” FLA. STAT. ANN. § 27.711(12)

(emphasis added).

would remain tolled until after this Court’s certiorari review

of the denial of state postconviction relief.°

This Court denied Lawrence’s petition for a writ of

certiorari on March 24, 2003. Meanwhile, on March 11,

2003, Lawrence filed a pro se petition for a writ of habeas

corpus in the United States District Court for the Northern

District of Florida. The district court ultimately barred the

petition as untimely under AEDPA because more than one

year had elapsed since the state supreme court’s denial of

postconviction relief; it also declined to apply equitable

tolling. See Decision and Order, No. 03 Civ. 97 (N.D. FI.

May 27, 2004). The Eleventh Circuit affirmed. Lawrence v.

Florida, 421 F.3d 1221 (11th Cir. 2005). On March 27,

2006, this Court granted Lawrence’s current petition for a

writ of certiorari. Lawrence v. Florida, _ U.S. __, 126

S.Ct. 1625 (2006).

SUMMARY OF ARGUMENT

This case can and should be resolved in the

petitioner’s favor by holding that AEDPA’s one-year

limitations period is tolled pending this Court’s decision on a

timely petition for certiorari from the denial of state

postconviction relief. Even if the Court disagrees with that

* Counsel was mistaken in the sense that the Eleventh Circuit had

previously ruled otherwise, as noted above. The Sixth Circuit has

reached the opposite conclusion. See, e.g, Abela v. Martin, 348 F.3d

164, 170 (6th Cir. 2003) (“[I}f there is a certiorari petition pending to

review the validity of the state's denial of such an application for state

post-conviction review, the application is still pending . . .” and the

AEDPA's statute of limitations is tolled under 28 U.S.C. § 2244(d)(2))

(quotations omitted)). The resolution of that conflict is one of the

questions now before the Court. Although amici do not address that

question in this brief, see n.6 infra, we agree with petitioner that the Sixth

Circuit’s view of the law is correct and the AEDPA’s limitations period

should be tolled when a petition for certiorari is pending from the denial

of state postconviction review. ‘

4

conclusion, however, Lawrence’s habeas petition was

improperly dismissed. AEDPA’s filing deadline is subject to

equitable tolling, and equitable tolling is appropriate on the

facts of this case.°

Florida has established a system to provide legal

representation for death-row inmates in state postconviction

proceedings that heavily relies on the appointment of private

attorneys from a state-created registry. See FLA. STAT. ANN.

§ 27.701(2); FLA. STAT. ANN. § 27.710. Registry attorneys

are required by statute to continue representing their clients

through federal habeas review. FLA. STAT. ANN. § 27.711

(1) (c). Florida’s system of registry counsel requires its

courts to “monitor the performance of assigned counsel to

ensure that the capital defendant is receiving quality

representation,” including the “filfing] of appropriate

motions in a timely manner.” FLA. STAT. ANN. § 27.711(12).

Numerous courts have held that habeas petitioners

are entitled to equitable tolling when their filings are late due

to reliance on inaccurate representations or unfair actions by

the courts or a state. Amici submit that equitable tolling

should similarly be available where as here, and in a

profoundly troubling number of other Florida cases: 1) the

cause of a petitioner’s late habeas filing is the extraordinary

circumstance of his detrimental reliance on Florida’s

representation that its courts will monitor state-selected

counsel to ensure they are providing “quality

representation,” including filing appropriate pleadings in a

timely manner; and 2) the petitioner neither has engaged in

dilatory tactics nor had reason to believe that counsel would

fail to meet AEDPA’s statute of limitations.

® This brief addresses only the issues raised by the third Question

Presented in the petition for certiorari. Amici also support petitioner’s

position on Questions | and 2, although we have not separately briefed

them.

5

ARGUMENT

A PETITIONER’S DETRIMENTAL RELI-

ANCE ON FLORIDA’S REPRESENTATION

THAT ITS COURTS WILL MONITOR THE

PERFORMANCE OF HIS’ REGISTRY

ATTORNEY TO ENSURE “QUALITY REP-

RESENTATION,” INCLUDING THE FILING

OF “APPROPRIATE MOTIONS IN A

TIMELY MANNER,” IS AN_ EXTRA-

ORDINARY CIRCUMSTANCE WARRANT-

ING APPLICATION OF EQUITABLE

TOLLING.

Florida has established a registry of attorneys to

provide-legal representation for many death-row inmates in

state postconviction proceedings. See FLA. STAT. ANN. §

27.701(2); FLA. STAT. ANN. § 27.710.’ In creating that

system, Florida has expressly pledged to death-row inmates,

like Lawrence, that the state courts will “monitor the

performance of assigned counsel to ensure that the capital

=

” Until 1998, almost all non-conflict capital cases in Florida were

handled by three regional (northern, southern, and middle) offices of

“capital collateral counsel.” FLA. STAT. ANN. § 27.701(1). In 1998,

Florida enacted legislation creating a “‘registry’ of attorneys in private

practice who are available to be appointed to represent defendants in

postconviction capital collateral proceedings.” 1998 Fla. Laws ch. 98-

197, § 3 (creating section 27.710 of the Florida Statutes). This 1998 law,

and its 2000 amendment, effectively channeled some of the cases that

had previously been handled by capital collateral counsel to private

attorneys listed on the “regigtry.” See FLA. STAT. ANN. § 27.710(5);

2000 Fla. Laws ch. 2000-3, § 11 (amending FLA. STAT. ANN. §

27.710(5), as originally set forth in 1998 Fla. Laws ch. 98-197, § 3). In

2003, Florida enacted further legislation eliminating the office of capital

collateral counsel for the northern region of the state and, in a pilot

program, expanding the registry system to handle cases arising in that

region. See 2003 Fla. Laws ch. 2003-399, § 84 (creating FLA. STAT.

ANN. § 27.701(2)).

6

defendant is receiving quality representation,” including the

“filf[ing] of appropriate motions in a timely manner.” FLA.

STAT. ANN. § 27.711(12).*® Despite that assurance, Florida

has repeatedly and often successfully moved to dismiss

habeas petitions filed by registry counsel as untimely under

AEDPA to the obvious detriment of death-row inmates who

are then foreclosed from ever seeking federal habeas review.

As demonstrated below, equitable principles of basic

fairness demand the application of equitable tolling where as _

here, and in a profoundly troubling number of other Florida

cases: ~

1) the cause of a petitioner’s late habeas filing is the

extraordinary. circumstance of his detrimental

reliance on Florida’s representation that the state

courts will monitor state-selected counsel to ensure

they are providing “quality representation,” including

filing appropriate pleadings in a timely manner; and

2) the petitioner has neither engaged in dilatory tactics

nor had reason-te-believe-counsel would fail to meet

AEDPA’s deadline.

® Florida’s provision of postconviction counsel to capitally-sentenced

prisoners includes representation in “one series of collateral litigation of

an affirmed conviction and sentence of death, including the proceedings

in the trial court that imposed the capital sentence, any appellate review

of the sentence by the Supreme Court, any certiorari review of the

sentence by the United States Supreme Court, and any authorized federal

habeas corpus litigation with respect to the sentence.” FLA. STAT. ANN. §

27.711 (1) (c).

A. Detrimental Reliance On Florida’s Pledge That Its

State Courts Will Ensure That Registry Counsel Is

Providing Quality Representation, Including The

Timely Filing Of Motions, Is An Extraordinary

Circumstance Warranting Equitable Tolling.

Equitable tolling of the AEDPA’s statute of

limitations for filing a federal habeas corpus petition set forth

in 28 U.S.C. § 2244(d)(1) is appropriate where: (1) the

petitioner has been prevented from asserting his rights in

some extraordinary way, and (2) the petitioner has exercised

reasonable diligence. See, e.g., Merritt v. Blaine, 326 F.3d

157, 168 (3d Cir. 2003); Sandvik v. United States, 177 F.3d

1269, 1271 (11th Cir. 1999) (per curiam) (explaining that

AEDPA’s statute of limitations can be equitably tolled where

a petitioner “untimely files because of extraordinary

circumstances that are both beyond his control and

unavoidable even with diligence”); Marsh v. Soares, 223

F.3d 1217, 1220 (10th Cir. 2000).

This Court has recognized that equitable tolling of

AEDPA’s statute of limitations can be appropriate when the

cause of the late filing is a petitioner’s detrimental reliance

on representations by either the courts or a state. See, e.g.,

Pliler v. Ford, 542 U.S. 225, 234 (2004) (remanding to 9th

Circuit to consider whether “Court of Appeals’ concern that

respondent had been affirmatively misled” by magistrate

judge provides justification for equitable tolling of statute of

limitations); id. at 235 (O’Connor, J., concurring) (“if the

petitioner is affirmatively misled . .. by the court or the

State . . . , equitable tolling might well be appropriate” and

“{t]his is a question for the Ninth Circuit to consider on

remand”); id. (Stevens, J., concurring in the judgment)

(endorsing majority’s approach of “remanding to the Ninth

Circuit to determine the propriety of equitable tolling”);

Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (suggesting

that detrimental reliance constituted an extraordinary

circumstance warranting equitable tolling, but ultimately

declining to decide petitioner’s contention that “state law and

Third Circuit exhaustion law created a trap on which [he]

detrimentally relied as his federal time limit slipped away”

because petitioner was far from diligent in pursuing his

claims).

Similarly, the federal courts of appeals have held that

equitable tolling can be appropriate when petitioners

reasonably rely to their detriment on representations or

actions of the courts,’ the prosecution,'® court personnel,'!

9 See Keenan v. Bagley, 400 F.3d 417, 421 (6th Cir. 2005) (remanding

for determination whether petitioner “reasonably viewed the Ohio

Supreme Court’s order {which was issued after expiration of state court

limitations period and which stayed petitioner's execution and afforded

six months in which to file for state postconviction relief] as granting him

extra time to properly file a-petition for state postconviction relief. . .

{and] [reasonably] assumed that any time spent pursuing this avenue

would toll his federal statute of limitations”); Griffin v. Rogers, 399 F.3d

626, 635-38 (6th Cir. 2005) (finding that petitioner, whose mixed petition

was dismissed for lack of “total exhaustion” and who relied on federal

court's assurance that federal review could be sought after return to state

court, was entitled to equitable tolling even though petitioner did not file

State-court petition until half a year later, given that petitioner “had no

reason to know that she was required to file within 30 days of her

dismissal from federal court” and, “[iJn the absence of any known

deadline, six months for preparation and filing by a busy public

defender’s office is not unreasonable”).

10 See King v. Bell, 378 F.3d 550, 553, 554 (6th Cir. 2004) (granting

equitable tolling because “government’s failure to produce the voir dire

transcripts prevented [petitioner] from complying with the court’s

original scheduling order”).

'! See Burger v. Scott, 317 F.3d 1133, 1143 (10th Cir. 2003) (granting

equitable tolling for four-month period between prisoner’s deposit of

state postconviction petition in prison mail and date on which documents

were stamped “filed” by state court because “substantial circumstantial

evidence” suggested that “court was in possession of the petition during

the entire four-month period,” notwithstanding its delay in affixing file

stamp to documents); Knight v. Schofield, 292 F.3d 709, 709-10 (11th

Cir. 2002) (per curiam) (granting equitable tolling for prisoner, who was

assured by “Georgia Supreme Court clerk . . . that he would be notified

9

prison personnel,'” or unclear law.'? In the extraordinary

circumstance where such reliance results in a petitioner

missing a filing deadline, equitable tolling protects against

the unduly harsh and unfair result of the petitioner losing the

right to pursue potentially meritorious claims.

~ Just as petitioners are entitled to equitable tolling

when their filings are late due to reliance on iaaccurate

representations or unfair actions by the courts or a state, so

too are they entitled to equitable tolling when they

detrimentally rely on a state’s representation that it will

provide them quality counsel, including the timely filing of

pleadings, and their state-selected, state-monitored counsel

fail to meet AEDPA’s time bar. Amici recognize that

litigants ordinarily bear the risk of the mistakes made by

their counsel. See, e.g., Rouse v. Lee, 339 F.3d 238, 249 (4th

Cir. 2003) (relying on agency principles to deny equitable

tolling to petitioner whose postconviction counsel violated

as soon as a decision was made,” but in fact was belatedly informed of

decision because clerk “inadvertently sent notice of the decision to the

wrong person,” until “the day he received [actual] notice of the final

denial of the Georgia Supreme Court”); Corjasso v. Ayers, 278 F.3d 874,

878-80 (9th Cir. 2002) (granting equitable tolling for delay caused by

mishandling of pro se papers by district court clerk’s office).

2 See Stillman v. LaMarque, 319 F.3d 1199, 1202-03 (9th Cir. 2003)

(granting equitable tolling because “prison litigation coordinator

promised Stillman’s lawyer to obtain Stillman’s signature in time for

filing, but then broke his promise, causing the filing to be late”).

3 See Banks v. Horn, 271 F.3d 527, 534 (3d Cir. 2001) (precluding

tolling for “properly-filed” state postconviction motion under 28 U.S.C. §

2244(d\(2), but granting equitable tolling to petitioner whose second

application for state postconviction relief had been barred as untimely

because “the state of the Pennsylvania law regarding the nature of the

filing requirement was unclear, and [petitioner] could reasonably have

viewed the state time limit as a mere statute of limitations subject to

equitable tolling, not, as the Pennsylvania Supreme Court later held [in

petitioner's own case], a jurisdictional requirement”), rev'd on other

grounds, 536 U.S. 266 (2002).

10

AEDPA’s time bar). But the rationale for this assignment of

risk cannot reasonably be applied where (a) state and its

courts — not the petitioner — have chosen the lawyer and have

assured the petitioner that the courts will ensure quality

representation, including the timely filing of motions, and (b)

where the petitioner detrimentally relies on this assurance

and then merely seeks equitable tolling of a federal statute of

limitations that counsel has missed.

To its credit, Florida itself has formally

acknowledged that problems arising from the appointment of

registry counsel to represent capitally-sentenced defendants

in postconviction proceedings may require equitable tolling,

at least in some circumstances. Thus, in Jn re Rules of

Criminal Procedure 3.851 & 3.850, 719 So.2d 869, app. B

(Fla. 1998), the Florida Supreme Court tolled the state’s own

one year deadline for filing state postconviction motions for

a specified list of capital defendants, including Lawrence,

who were eligible for the appointment of registry counsel

under the then newly-enacted law. Jd. at 871 (tolling statute

of limitations set forth in Fla. R. Crim. P. 3.851(d)(1)).

Absent equitable tolling, numerous capitally-sentenced

defendants would have lost their right to pursue state

postconviction remedies through no fault of their own during

this transition period. As the state supreme court explained,

“the registry of attorneys will have to be established before

trial courts can appoint private counsel as required by the

legislation and [] a large number of attorneys will need to be

included in the registry because of the many capital

postconviction defendants that may fall within the categories

under which private counsel will have to be appointed.” /d.

at 870. !

The Florida Supreme Court had no power, of course,

to toll AEDPA’s statute of limitations. That is up to the

federal courts. There is no reason, however, why the

principle of equitable tolling should depend on whether the

state’s failure to ensure the timely filing of postconviction

11

pleadings, as promised, is the result of problems occurring at

the inception of the registry counsel program or at later

stages of its implementation.

The record in Damren vy. Crosby, No. 03 Civ. 0039

(M.D. Fla.), vividly illustrates the problem. In the process of

reassigning cases to registry counsel, the Florida courts did

not assign Damren registry counsel until October 12, 1998,

nine months after his conviction had become final. See

Docket No. 60 at 2, 4. Unfortunately for Damren, the

Florida Supreme Court’s order did not, and obviously could

not, toll AEDPA’s statute of limitations. Under the AEDPA,

registry counsel had approximately two months remaining to

file a federal habeas petition after Damren’s state

postconviction challenges concluded in 2003, and counsel

missed the deadline.

To be sure, a party seeking equitable tolling must act

diligently and reasonably to preserve his rights. Pace, 544

U.S. at 418 & n.8. But reliance on registry counsel who is

allegedly being monitored by the state to ensure quality

representation, including the timely filing of pleadings,

hardly demonstrates a lack of diligence by death-row

inmates who took the state at its word. On this record, there

is nothing to suggest that petitioner should have been on

notice that his attorney would not abide by AEDPA’s filing

deadline, Williams v. Taylor, 529 U.S. 420, 442 (2000)

(examining due diligence in the context of whether a

petitioner’s failure to develop a factual record in state court

precludes a fact hearing in federal court). Nor is there any

evidence that “petitioner engaged in intentionally dilatory

litigation tactics.” Rhines v. Weber, 544 U.S. 269, 278 (2005)

(setting forth test for determining whether a petition may be

stayed so that petitioner may return to state court to exhaust

federal claims in state court).

Under these circumstances, habeas petitioners like

Lawrence should not be deprived of equitable tolling

12

because they failed to assume that the state would default on

its pledge of “quality representation,” and thus never

attempted to navigate on their own what this Court has aptly

described as the exceedingly complicated nature of capital

and federal habeas jurisprudence. See Murray v. Giarratano,

492 U.S. 1, 14 (1989) (Kennedy, J., concurring) (“The

complexity of our jurisprudence in this area . . . makes it

unlikely that capital defendants will be able to file successful

petitions for collateral relief without the assistance of

persons learned in the law.”); Rhines, 544 U.S. at 279

(Souter, J., concurring) (noting that “pro se petitioners (as

most habeas petitioners are) do not come well trained to

address” such “trick[y]” habeas matters as exhaustion).'*

That is especially true in this case because Lawrence lacked

anything close to the intellectual capacity to monitor his

registry attorney’s performance himself: he suffers from “a

limited intellectual ability, impairment of judgment, [and]

educational deprivation.” Sentencing Tr. (Mar. 17, 1995) at

490.

In any event, filing a timely pro se federal petition as

insurance in case counsel is late in filing — even assuming the

local rules permit such a pro se filing, which is often not the

case, see, e.g., United States District Court for the Northern

District of Florida Local Rule 11.1(D) — hardly serves the

ends of judicial efficiency or even a petitioner’s own

interests. If represented litigants were required to file their

own pro se habeas petitions to comply with AEDPA’s time

bar, the courts would be inundated with repetitive filings

that, among other things, would increase the risk that later

petitions filed by counsel would be rejected as successive.

'* Because of the procedural default and exhaustion doctrines applicable

to federal habeas review, thorough knowledge of both capital and federal

habeas jurisprudence is essential. See generally ABA GUIDELINES FOR

THE APPOINTMENT AND PERFORMANCE OF DEFENSE COUNSEL IN DEATH

PENALTY CASES, No. 10.15.1 & Commentary (2003).

~

13

See 28 U'S.C. § 2244(b).

The availability of equitable tolling when a habeas

petitioner has detrimentally relied on a state’s assurance that

it will provide quality representation, including the timely

filing of appropriate pleadings, does not depend on a

constitutional right to counsel. See, e.g., Young v. United

States, 535 U.S. 43, 47-48, 49-50 (2002) (holding that

“lookback period” in 11 U.S.C. § 507(aX(8\A,i) of

Bankruptcy Code subject to traditional equitable tolling

principles; “[{i}t is hornbook law that limitations periods are

customarily subject to equitable tolling”) (internal quotation

marks omitted). See also Hallstrom v. Tillamook County,

‘sadn U.S. 20, 27 (1989) (“Time requirements in lawsuits

between private litigants are customarily subject to equitable

tolling”). '° It does not require the Court to address the

merits of petitioner’s underlying claim. And it does not

require the Court to second-guess the strategic judgments of

appointed counsel. The relief that petitioner is seeking in

this case is therefore quite limited. It is, nonetheless,

essential to achieve elemental fairness and to ensure that the

state does not benefit from its own misrepresentations,

especially when someone’s life is at stake.

Florida has, too often, done precisely that. As

detailed below, the state has frequently and often

successfully sought to dismiss federal habeas petitions filed

on behalf of death-row inmates based on a failure by state-

selected and state-monitored registry counsel to meet

AEDPA deadlines. Equitable tolling is both necessary and

appropriate under these circumstances. Without it, many

petitioners in Florida may be executed without a federal

'S Equitable tolling principles are, of course, doctrinally distinct from the

traditional analysis of the effectiveness of counsel provided under the

Sixth and Fourteenth Amendments. See generally Strickland v.

Washington, 466 U.S. 668, 687-88 (1984) (requiring objectively

unreasonable attorney errors which cause a reasonable probability of a

different outcome to make showing of ineffective assistance of counsel).

14

court ever reviewing their habeas claims, even if they did not

engage in dilatory tactics, Rhines, 544 U.S. at 278, and had

no reason to believe counsel would fail to meet AEDPA’s

deadline. See Williams, 529 U.S. at 442. This

unconscionable outcome will serve neither the hallowed

purpose of the Great Writ nor Florida’s interest in just capital

judgments.’

B. Florida Has Not Fulfilled Its Pledge That “Quality”

Counsel Will File Appropriate Pleadings “In A

Timely Manner.”

The results of Florida’s unfulfilled pledge of “quality

representation” are unsettling. As the following chart

demonstrates, Gary Lawrence is one of eight men sentenced

to death in Florida, six represented by registry counsel, who

since 2004 have had their federal habeas petitions rejected as

untimely (appeals, petitions for certiorari, and/or requests

for certificates of appealability (“COA”) are pending in six

'® See, e.g., House v. Bell, U.S. __, 2006 WL 1584475, * 14 (June 12,

2006) (citing Lonchar v. Thomas, 517 U.S. 314, 324 (1996) (cautioning

that “[d]ismissal of a first federal habeas petition is a particularly serious

matter, for that dismissal denies the petitioner the protections of the Great

Writ entirely, risking injury to an important interest in human liberty”));

Reed v. Ross, 468 U.S. 1, 10 (1984) (noting the writ’s purpose to

“‘interpose the federal courts between the States and the people, as

guardians of the people’s federal rights-to protect the people from

unconstitutional action’) (quoting Mitchum v. Foster, 407 U.S. 225,

242, (1972)); Hensley v. Mun. Court, 411 U.S. 345, 349-50 (1973)

(“[H]abeas corpus is not a static, narrow, formalistic remedy, but one

which must retain the ability to cut through barriers of form and

procedural mazes.”) (internal quotation marks and citations omitted);

FLA. STAT. ANN. § 27.7001 (“It is the intent of the Legislature to. . .

provide for the collateral representation of any person convicted and

sentenced to death in this state, so that collateral legal proceedings to

challenge any Florida capital conviction and sentence may be

commenced in a timely. manner and so as to assure the people of this

state that the judgments of its courts may be regarded with the finality to

which they are entitled in the interests of justice.”’).

15

of these cases):

Case Name and Citation: |How late habeas or state

postconviction petition filed:

Lawrence v. Florida, 421 \If this court resolves

F.3d 1221 (11th Cir. 2205),

Icert. granted, _US. _,

126 S.Ct. 1625 (2006).

Question I against Petitioner,

he filed his pro se habeas

petition, while advised by

registry counsel, close to

four months late.

Howell v. Crosby, 415 F.3d

1250 (11th Cir. 2005), cert.

denied, _ US. _, 126

S.Ct. 1059 (2006).

Registry counsel filed state

postconviction motion

fourteen months after

viction became final,

failing to toll AEDPA’s

lock for later filing.

Cole v. Crosby, No. 05

Civ. 222, 2006 WL

1169536 (M.D. Fla. May 3,

2006), COA _ request

pending, No. 06-13090

ai Cir.)

ital collateral counsel,”

FLA. STAT. ANN. § 27.701

1), filed close to sixteen

ths late.

Wainright v. Crosby, No.

5 Civ. 0027, Dec. and

Order, (M.D. Fla. Mar. 10

2006), appeal pending (11

Cir.)."’

Registry counsel filed

approximately two months

late.

'7 The dockets and documents cited for each case which lacks a reported

decision may be found on the web site for the respective court by linking

to the court’s Public Access to Court Electronic Records (“PACER”) or

Case Management/Electronic Case Filing (“CM/ECF”) system. See, e.g.,

(Northern District

https://ecf find.uscourts.gov/cgi-bin/login.p!

Florida). The date noted in each such citation is the date on which the

16

Sweet v. Crosby, No. 03

Civ. 00844, Dec. and

Order, (M.D. Fla. Aug. 5,

2005), appeal pending, No.

05-15199 (1 1th Cir.).

Registry counsel filed

approximately two years

late.

_ |Banks v. Crosby, No. 03

Civ. 0032, Dec. and Order

(N.D. Fla. July 29, 2005).

Registry counsel filed state

postconviction - motion

ourteen months after

viction became final,

failing to toll AEDPA’s

|clock for later filing.

Foster v. Crosby, No. 03

Civ. 109, Dec. and Order

(N.D. Fla. Dec. 13, 2004),

a denied, 05-10344

(11th Cir. Sept. 30, 2005),

cert. pending.

Registry counsel filed

ximately one year late.

Downs v. Crosby, No. 01

Civ. 139, Dec. and Order

.D. Fla. Oct. 21, 2004),

OA request pending, No.

5-10210 (11th Cir.).

Capital collateral counsel

filed approximately one year

late.

In addition, the following chart shows that eight

other inmates on Florida’s death row — all represented by

registry counsel] — have federal habeas petitions pending that

the state is arguing should be barred as untimely:

court ruled that the petition would be rejected as untimely.

The Eleventh Circuit has not yet docketed the appeal

Wainright v. Crosby, though a notice of appeal has been filed in

district court, which has transmitted relevant parts of the record to

Eleventh Circuit. PACER does not make clear whether a COA has been

issued or requested in this case.

in

the

the

17

Case Name

Citation: 7

and

State’s Contention:

Holland v. Crosby, No.

06 Civ. 20182 (S.D.

Fla.).

Thirty-eight days after

registry counsel missed

deadline, petitioner filed pro

Se.

Civ. 00147 (M.D. Fla.).

Brown v. Crosby, No. | Registry counsel _filed

06 Civ. 00142 (M.D. | approximately one year late.

Fla.).

Asay v. Crosby, No. 05 | Registry Counsel _filed

approximately seven months

late.

Hamilton v. Crosby, No.

05 Civ. 813 (M.D. Fia.).

Registry counsel filed state

postconviction motion more

than fourteen months after

conviction became final,

failing to toll AEDPA’s clock

for later filing.

Johnson v. Crosby, No.

0S Civ. 23293 (S.D.

Fla.).

Registry counsel filed state

postconviction motion more

than three years _ after

conviction became final,

failing to toll AEDPA’s clock

for later filing.'*®

18 The St. Petersburg Times reported that Johnson’s registry attorney

publicly admitted in 2000 that he missed the deadline and withdrew from

the case without filing either a state post-conviciton motion or a habeas

petition, because although he knew that the field of postconviction

litigation was “specialized, [he] did not «now to what extent.” The

attorney reportedly admitted that “[i}t was a terrible mistake for [him] to

get involved” as registry counsel. Jo Becker, System May Be Slowing

18

Gordon vy. Crosby, No.| One month after registry

04 Civ. 0035 (M.D.| counsel missed deadline,

Fla.). petitioner filed pro se.

Damren v. Crosby, No. | Registry counsel _filed

03 Civ. 0039 (M.D. | approximately seven months

Fla.). ‘ late.

_

Thomas v. McDonough, | Registry counsel __filed

03 Civ. 00237 (M.D. | approximately fifteen months

Fla.). late. '?

In short, notwithstanding Florida’s assurance of

“quality” representation, including the filing of appropriate

pleadings in a timely manner, the legal representation

provided by the state and purportedly monitored by its courts

has led directly to an intolerably long list of capitally-

sentenced defendants who may never have an opportunity to

pursue federal habeas review.

C. Florida Has Long Known That Its Registry Counsel

System Is In Crisis, Including Repeated Failures To

File Timely Pleadings.

Florida and its courts have long known about the

_ severe deficiencies of the registry counsel system. Charged

with overseeing registry counsel, FLA. STAT. ANN. § 27.711

(12), the Florida courts became aware as early as 1998 that

the transition from capital-collateral relief counsel to registry

Appeals: Introduced as a Way to Streamline the Death Penalty Process,

a Registry System Using Private Defense Attorneys Has Led to Delays,

Critics Say, ST. PETERSBURG TIMES, July 17, 2000, at IB.

'9 In three of these cases, Asay, Damren, and Thomas, the district court

has assigned a separate attorney to argue for equitable tolling of the

statutory deadline. See, e.g., Asay v. Crosby, No. 05 Civ. 00147, Order

(M.D. Fla. Feb. 27, 2006) (omnibus order pertaining to all three cases).

19 \

counsel had created a backlog of people on death row who

had no lawyers, even while AEDPA’s one-year clock was

running. See In Re Rules of Criminal Procedure 3.851 &

3.850, 719 So.2d 869 (Fla. 1998) (addressing practical

implications of newly-enacted FLA. STAT. ANN. § 27.710

(5)). As the Florida Supreme Court stated, in that year, “the

registry of attorneys will have to be established before trial

courts can appoint private counsel as required by the

legislation and . . . a large number of attorneys will need to

be included in the registry because of the many capital

postconviction defendants that may fall within the categories

under which private counsel will have to be appointed.” Jd.

at 870.

According to Florida Bar and-media reports, Florida

legislators and Florida Supreme Court justices have

repeatedly complained publicly, including in Florida’s

legislative record, about the poor quality of representation

from registry attorneys. See Carl Jones, State Officials

Appeal to Florida Supreme Court on Attorney Fee Caps,

DAILYBUSINESSREVIEW.COM, May 15, 2006 (reporting that

while Governor “argues that private lawyers are better and

cheaper. . . [,] many legal experts, Democrats in the

Legislature and some Republican Legislators, disagree. . . .

State Senator Victor Cris, R-Tampa, a member of the

Commission on Capital Cases . . . criticized the 2003 switch

from the statewide [Capital Collateral Regional Counsel]

system to the mixed system using both state-employed and

registry lawyers. ‘We had a system that wasn’t broke and

was functioning well before we went into this private

counsel . . .”) (available without payment at

http://www.aclufl.o events/al hive/index.cfm?

action=viewRelease& emailAlertID=1856 (last visited June

14, 2006); Jan Pudlow, Justice Rips Shoddy Work of Private

Capital Case Lawyers, THE FLORIDA BAR NEws, March 1,

2005 (recording remarks of Florida Supreme Court Justice

Raoul Cantero during Florida Senate Committee on Justice

20

meeting of February 16, 2005: “/ think some of the worst

lawyering I've seen is from some of registry counsel,

unfortunately. If you look at some of the oral arguments,

you will understand why. It seems to me some registry

counsel have little or no experience in death penalty cases.

They have not raised the right issues, from our review of the

record. . . In arguments, they are unable to respond to

questions or don’t know what the record shows. They don’t

have a real good-understanding of death penalty cases, I

don’t think.”) (emphasis added). Chief Justice Barbara

Pariente wrote a letter to Roger Maas, Executive Director of

the Commission on Capital Cases, *° in which she stated: “As

for registry counsel, we have observed deficiencies and we

would definitely endorse the need for increased standards

for registry counsel, as well as a continuing system of

screening and monitoring to ensure minimum levels of

competence.” Id. (emphasis added).

The severe deficiencies in the registry counsel system

were well known in 2003, when Florida expanded the

registry system to cover the northern region of the state. See

Death Appeals Not Quite Dead, DAILYBUSINESS

REVIEW.COM, April 30, 2003 (reviewing several problems

with registry counsel, including missed federal deadlines,

attempting to charge clients additional funds for their work,

and charging Florida exorbitant sums for shoddy work)

(available without payment at _http://www.fadp.org/

news/bizrev 5 20.html) (last visited June 1, 2006).

Interviewed for a 2003 article, Mr. Maas cautioned against

proposals to eliminate the other two regional offices of

Capital Collateral Regional Counsel because “there are

20 Florida’s Commission on Capital Cases oversees the registry. FLA.

STAT. ANN. § 27.2710 (1). The Commission is a six-member body,

including two members appointed by Florida’s governor, two members

appointed by the Florida’s Senate, and two members appointed by its

House of Representatives. FLA. STAT. ANN. § 27.709. The Commission

is staffed by Florida's Office of Legislative Services. /d.

21

problems with the registry. There’s an inability to directly

control the lawyers, to make sure the cases are being

worked.” /d. Demonstrating that the Florida legislature was

aware of these problems, the article also reviewed several

changes to the registry system recommended by Florida’s

Legislative Accountability Office, including a

recommendation for increased training and additional prior

experience. /d.

In fact, Florida was on notice of the registry system’s

deficiencies as early as 2000, two years after its creation,

when reports emerged that registry attorneys were failing to ©

provide quality representation and that their failures included

missing deadlines for filing federal habeas corpus petitions.

See Becker, supra n.21, at 1B. The Becker article reported

that “[i]n six of the cases in which private attorneys are being

paid to pursue required death penalty appeals, lawyers have

blown deadlines that could preclude their clients from having

their claims heard in federal court.” /d. The article also

suggested that the fault for missed deadlines was attributable

in part to the Commission on Capital Cases itself because the

“training manual Maas gave the [registry] lawyers as

recently as January [of 2000] mistakenly said there are no

federal deadlines, a point later corrected.” Jd.

Thus, Florida has long known that, despite its

assurance of “quality representation,” its registry system has

repeatedly resulted in missed habeas deadlines.

*- * *

Florida induces reasonable reliance by capitally-

sentenced persons on its pledge to ensure, through court

monitoring, the quality of registry attorneys, including the

filing of appropriate pleadings in a timely manner.

Petitioners on Florida’s death row may obtain fair review of

their capital sentences only through extraordinarily

complicated and intertwining state and federal judicial

procedures. When they are assigned registry counsel, they

22

have no choice but to accept counsel’s representation,

backed by Florida’s pledge to monitor such representation,

or to forgo such representation by appearing pro se and

attempting to navigate this labyrinthine system without the

aid of counsel. So long as a petitioner has otherwise acted

with due diligence, his detrimental reliance on the state’s

representation of “quality” counsel is an extraordinary

circumstance warranting the application of equitable tolling

if registry counsel misses the AEDPA’s clear filing deadline.

It is certainly not unfair for Florida to bear the cost of a

petitioner’s detrimental reliance on its misrepresentation by

limiting the state’s ability to rely on the AEDPA’s statute of

limitations. And for a petitioner who detrimentally relied on

Florida’s unfulfilled assurance of quality representation by

an attorney who will file timely pleadings, surely equitable

tolling, merely providing the petitioner a chance to be heard

on federal habeas review, is the only fair and just result.

23

CONCLUSION

For the reasons stated herein, the judgment below

should be reversed.

Respectfully submitted,

John Holdridge

(Counsel of Record)

Brian W. Stull

American Civil Liberties Union

Foundation

201 West Main Street, Suite 402

Durham, N.C. 27701

(919) 682-5659

Steven R. Shapiro

American Civil Liberties Union

Foundation

125 Broad Street

New York, NY 10004

Larry W. Yackle

Boston University School of Law

765 Commonwealth Avenue

Boston, MA 02215

24