Robert Bryant Melson v. Commissioner, Alabama Department of Corrections

713 F.3d 1086, 2013 WL 1346774, 2013 U.S. App. LEXIS 6880
CourtCourt of Appeals for the Eleventh Circuit
DecidedApril 4, 2013
Docket11-13512
StatusPublished
Cited by19 cases

This text of 713 F.3d 1086 (Robert Bryant Melson v. Commissioner, Alabama Department of Corrections) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robert Bryant Melson v. Commissioner, Alabama Department of Corrections, 713 F.3d 1086, 2013 WL 1346774, 2013 U.S. App. LEXIS 6880 (11th Cir. 2013).

Opinions

PER CURIAM:

Robert Bryant Melson appeals the district court’s dismissal of his 28 U.S.C. § 2254 federal habeas corpus petition as untimely. The district court rejected Mel-son’s argument that the one-year statute of limitations for filing a federal habeas petition should be equitably tolled, finding [1087]*1087that Melson was not reasonably diligent in pursuing his rights and that the conduct of Melson’s attorneys did not constitute an extraordinary circumstance that warrants equitable relief. After a review of the record and oral argument, we affirm.

I. PROCEDURAL AND FACTUAL BACKGROUND

Melson was convicted of three counts of capital murder on April 26, 1996, and was sentenced to death on May 16, 1996. On direct appeal, the Alabama Court of Criminal Appeals and the Alabama Supreme Court affirmed the conviction and sentence. Melson v. State, 775 So.2d 857 (Ala.Crim.App.1999), aff'd Ex parte Mel-son, 775 So.2d 904 (Ala.2000). The United States Supreme Court denied Melson’s petition for a writ of certiorari on March 5, 2001. Melson v. Alabama, 532 U.S. 907, 121 S.Ct. 1233, 149 L.Ed.2d 141 (2001).

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, a state prisoner must file an application for a writ of habeas corpus in federal court within one year of the date that his state court judgment becomes final. 28 U.S.C. § 2244(d)(1). However, the one-year deadline is statutorily tolled while “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” Id. § 2244(d)(2). Accordingly, Mel-son had to file a petition under Rule 32 of the Alabama Rules of Criminal Procedure (“Rule 32 petition”) by March 6, 2002, in order to toll the federal deadline.

Alabama does not provide counsel to indigent capital defendants in post-conviction proceedings and Melson was left unrepresented after the Supreme Court denied his petition for a writ for certiorari. Melson was assured by his former counsel that the Equal Justice Initiative, a nonprofit organization, would find a volunteer attorney to take his case and file in both state and federal courts for habeas relief. In November 2001, Melson’s former counsel told him that Ingrid DeFranco, an attorney from Colorado, had agreed to represent him. DeFranco was not licensed to practice law in Alabama, but met with Melson in December 2001 and promised him that she would obtain pro hac vice status through a local attorney. Melson did not hear from DeFranco again and wrote to her in February 2002 to inquire about his federal habeas petition, saying that he was losing sleep because he did not know whether the federal deadline had passed.

On March 4, 2002, two days before the AEDPA statute of limitations was due to run, DeFranco filed a Rule 32 petition in the Etowah County Circuit Court. However, DeFranco had not yet obtained pro hac vice status in Alabama and, further, had failed to verify the petition as required by the Alabama Rules of Criminal Procedure. See Ala. R.Crim. P. 32.6(a) (“A proceeding under this rule is commenced by filing a petition, verified by the petitioner or the petitioner’s attorney, with the clerk of court.”). Consequently, the circuit court dismissed the petition as not properly filed. Melson points out that, although the circuit court order states that the Rule 32 petition was dismissed “due to lack of verification,” any pleading filed by an out-of-state attorney who has not obtained pro hac vice status is to be stricken as a “nullity” under Alabama law. Black v. Baptist Med. Ctr., 575 So.2d 1087, 1088 (Ala.1991). Melson argues that the petition would have been stricken due to De-Franco’s lack of pro hac vice status regardless of the verification and that he was effectively unrepresented by counsel, notwithstanding DeFranco’s “filing.”

[1088]*1088DeFranco filed an amended Rule 32 petition with the proper verification on March 25, 2002, but this was after the federal deadline had already passed. She then associated local counsel, Loretta Collins, and obtained pro hac vice status. She forwarded a copy of the amended state petition to Melson along with a letter assuring him that all was well with his case. DeFranco did not inform Melson that the original Rule 32 petition had been dismissed or that, as a result, he had missed the deadline for tolling the AEDPA statute of limitations.

Because the amended Rule 32 petition was timely filed under Alabama law, it was considered by the state courts. However, the circuit court denied relief on October 17, 2002, holding that the petition failed to raise a material issue of fact or law, that it failed to state a claim for which relief could be granted, and that Melson’s claims were insufficiently pled. The clerk forwarded a copy of the dismissal order to Melson and, in December 2002, sent Melson a packet of documents informing him of his right to appeal the dismissal in state court. Mel-son testified at the evidentiary hearing that he did not understand what the dismissal order or documents meant. His lawyers, DeFranco and Collins, never properly filed a notice of appeal from the dismissal of the Rule 32 petition and Mel-son’s appeal was dismissed as untimely on December 16, 2002. Neither DeFranco nor Collins ever informed Melson that his Rule 32 petition had been dismissed or that they missed the deadline for filing the notice of appeal, resulting in the dismissal of the appeal as untimely.

On February 11, 2003, the Alabama Attorney General’s office sent a letter to Melson, informing him that his Rule 32 proceedings were complete and that the State planned to set an execution date unless Melson filed a federal habeas corpus petition, which, in the State’s view, would be untimely. Melson testified that, until he received this letter, he was unaware that his Rule 32 petition and appeal had been dismissed. A few days after receiving the letter, Melson wrote to De-Franco on February 13, 2003, for an explanation. She responded on March 3, 2003, that Collins had failed to timely file the notice of appeal, that she was in the process of requesting an out-of-time appeal, and that she planned to file the federal habeas corpus petition after the state appeal was resolved. However, neither Mel-son nor his attorneys took any action to file the federal petition until almost two years after Melson received the Attorney General’s letter.

On December 13, 2004, Melson, through different counsel, filed a habeas corpus petition in federal court pursuant to 28 U.S.C. § 2254. This was more than two years after the federal AEDPA deadline had passed. The district court dismissed the petition as time-barred. This Court affirmed the dismissal. Melson v. Allen, 548 F.3d 993 (11th Cir.2008). However, the U.S. Supreme Court vacated the decision and remanded the case to this Court for further consideration in light of Holland v. Florida, — U.S. -, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). Melson v. Allen, — U.S. -, 130 S.Ct. 3491, 177 L.Ed.2d 1081 (2010).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
713 F.3d 1086, 2013 WL 1346774, 2013 U.S. App. LEXIS 6880, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robert-bryant-melson-v-commissioner-alabama-department-of-corrections-ca11-2013.