Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, January 02, 2013

Smith: No Abandonment by lawyers

In Smith v. Comm. Ala. Dep’t of Corrections, No. 11-13802 (Dec. 28, 2012) (2-1), the Court affirmed the denial of habeas relief to an Alabama inmate sentenced to death for a 1994 murder, finding his petition to be time-barred under AEDPA.

Smith filed for an application post-conviction relief in Alabama within the one-year period during which the filing for State post-conviction relief tolls the federal AEDPA statute of limitations. However, the lawyers who filed the application neglected to pay the filing fee, or to seek leave of court to proceed in forma pauperis. Consequently, the application was not “properly filed” under Alabama law – and, therefore, for purposes of tolling the AEDPA limitations period.

One of the lawyers had an ongoing history of substance abuse, and was charged with possessing a controlled substance – less than a month after Smith’s application was filed. The other lawyer was not admitted to the Alabama bar, and did not move for admission pro hac vice. The Court nonetheless found that Smith was not “abandoned” by his lawyers and therefore could not qualify for equitable tolling of the AEDPA limitations period. The mere fact of failing to pay a filing fee, or to move for pro hac vice status, does not constitute abandonment.