IN THE UNITED STATES DISTRICT COURT

 FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

CHADWICK BANKS,

Petitioner,

v. Case No.: 4:03cv328/RV

JAMES V. CROSBY, JR., Secretary,

Florida Department of Corrections, and

CHARLIE J. CRIST, JR., as Attorney General

of the State of Florida,

Respondents.

____________________________________/

ORDER

Before the Court is a motion for summary judgment filed by the respondents.

Petitioner has filed a response to this motion and respondents filed a reply to

petitioner’s response, as well as a notice of supplemental authority.

BACKGROUND

Petitioner pled no contest to two counts of first-degree murder for the deaths

of his wife and stepdaughter and no contest to the sexual battery on his stepdaughter,

a child under twelve years of age. He has been sentenced to death for the murder of

his stepdaughter. He received a life sentence with a minimum mandatory of 25 years

for the murder of his wife and a sentence of life without the possibility of parole for

25 years for the sexual battery against his stepdaughter. The facts as recited by the

Supreme Court of Florida are as follows:

[Banks] entered Cassandra Banks’ trailer with a gun at approximately

2:50 a.m. on September 24, 1992. He shot Cassandra Banks in the

head while she was asleep. Ms. Banks died without ever gaining

consciousness. [Banks] then went to Melody Cooper’s bedroom at the

other end of the trailer. He set the gun down and sexually battered her

for approximately twenty minutes before shooting her in the top of the

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head, killing her.

Banks v. State, 700 So.2d 363, 365 (Fla. 1997). The sentencing jury recommended

by a vote of nine to three that petitioner receive a sentence of death. The trial judge

found the following aggravators had been established: (1) Banks was previously

convicted of another capital felony or a felony involving the use or threat of violence

to the person; (2) the capital felony was committed while the defendant was engaged

in the commission of a felony; and (3) the capital felony was especially heinous,

atrocious, or cruel. Id. The trial judge gave little weight to Banks’s age in statutory

mitigation, in light of his maturity and intelligence. The judge found in nonstatutory

mitigation that Banks’s service in the military, employment history, good character,

and contribution to his family and community had been established, but he gave these

factors little weight. The judge also found that Banks had a potential for rehabilitation,

had the love and support of his family, and had cooperated with police, but these also

were not given great weight. Id. The trial judge sentenced Banks to death, finding

that the aggravating circumstances outweighed the mitigating circumstances.

Petitioner’s conviction was affirmed by the Supreme Court of Florida on direct

appeal in an opinion dated August 28, 1997. Banks v. State, 700 So.2d 363 (Fla.

1997). The Supreme Court of the United States denied petitioner’s petition for a writ

of certiorari on March 23, 1998. Banks v. Florida, 523 U.S. 1026, 118 S. Ct. 1314

(Mem), 140 L. Ed. 2d 477 (1998). The dates on which his collateral review filings

were made are crucial in this case. Petitioner filed a motion in state court on June 10,

1999, for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

The trial court denied petitioner’s motion, and this denial was affirmed by the Supreme

Court of Florida on March 20, 2003. Banks v. State, 842 So.2d 788 (Fla. 2003). 

Petitioner filed his federal petition for a writ of habeas corpus on December 1,

2004 (doc. 7). Petitioner challenges his conviction and death sentence as to the

murder of his stepdaughter, Melody Cooper, on the following grounds:

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1. Petitioner was denied constitutionally effective assistance of counsel at

the penalty phase when his counsel failed to retain a mental health

expert to evaluate possible statutory and nonstatutory mitigating

evidence which was available for presentation to the jury;

2. Petitioner’s constitutional rights were violated in that Florida’s capital

sentencing scheme violates the Fifth, Sixth, Eighth and Fourteenth

Amendments to the United States Constitution (Ring v. Arizona, 536

U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), claim);

3. The trial court erred in its instructions to the jury as to the aggravating

factor of “cold, calculated and premeditated;”

4. The trial court erred in finding that the murder was especially heinous,

atrocious, and cruel;

5. The trial court impermissibly doubled the statutory aggravators of “during

the commission of a felony” and “heinous, atrocious, or cruel;”

6. The trial court erred in instructing the penalty phase jury that the murder

was committed during the commission of a sexual battery, when the

same was an underlying felony for purposes of first degree felony

murder; and

7. The trial court abused its discretion in rejecting or in assigning only slight

or little weight to the nonstatutory mitigating factors proven by

petitioner.

These are the same claims petitioner presented on direct and state collateral review.

The respondents’ motion does not deal with the merits of the case, however, but only

addresses the untimely filing of this federal petition.

DISCUSSION

Pursuant to Section 2244 of Title 28, United States Code, enacted in 1996 as

part of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a one-year period

of limitation applies to the filing of federal habeas petitions by persons in custody

pursuant to a state court judgment. The limitation period runs from the latest of:

(A) the date on which the judgment became final by the conclusion of

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direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by

State action in violation of the Constitution or laws of the United States

is removed, if the applicant was prevented from filing by such State

action;

(C) the date on which the constitutional right asserted was initially

recognized by the Supreme Court, if the right has been newly recognized

by the Supreme Court and made retroactively applicable to cases on

collateral review; or

(D) the date on which the factual predicate of the claim or claims

presented could have been discovered through the exercise of due

diligence.

28 U.S.C. §2244(d)(1). The time during which a “properly filed application” for state

post-conviction or other collateral review is pending is not counted. 28 U.S.C.

§2244(d)(2). 

Petitioner’s conviction became final for purposes of Section 2244(d) on March

23, 1998, when his petition for a writ of certiorari on the direct appeal was denied by

the Supreme Court of the United States. 28 U.S.C. §2244(d)(1)(A). See Jackson v.

Secretary for Dept. of Corrections, 292 F.3d 1347 (11th Cir. 2002). Absent any

tolling, petitioner’s federal habeas petition should have been filed no later than one

year from this date, or March 24, 1999. Petitioner did not file his state postconviction motion until June 10, 1999. Therefore, the one-year limitations period had

already run before he filed his state court motion, and his state filing did not toll the

limitations period provided for in AEDPA. See Tinker v. Moore, 255 F.3d 1331, 1333

(11th Cir. 2001) (holding that state court post-conviction petition filed four months

after expiration of AEDPA’s one-year limitations period “‘cannot toll that period

because there is no period remaining to be tolled.’” (citing Webster v. Moore, 199 F.3d

1256, 1259 (11th Cir. 2000)). The Tinker court also cautioned petitioners as follows:

 “[w]e remind petitioners that a properly and timely filed petition in state court only

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1

Petitioner waited over one year and eight months after the March 2003 decision affirming the trial

court’s denial of post-conviction relief to file his federal petition. Even if petitioner’s attorney believed the

extension granted by the Supreme Court of Florida in the 3.850 proceeding somehow tolled the federal

limitations period, it does not explain his failing to file the federal petition for an additional year and eight

months after the decision in the post-conviction proceeding became final.

Case No.: 4:03cv328RV

tolls the time remaining within the federal limitation period. Thus, care must be taken

to assure that sufficient time remains within the federal statutory period to file the

federal petition.” Id. at 1334, n. 4. Petitioner did not file his federal habeas petition

until December 1, 2004, or approximately five years and eight months after the

limitations period provided for in AEDPA had expired. 

In his response to the motion for summary judgment (doc. 24), petitioner

acknowledges that his federal habeas corpus petition was filed after the federal

limitations period had expired. He argues that the incompetence of his collateral postconviction counsel was the excuse for his failure to file the instant petition in a timely

manner. Petitioner also contends that equitable tolling is warranted based on the fact

that his court-appointed collateral post-conviction counsel requested an extension of

time in which to file his initial post-conviction motion and “failed to know that he had

filed Mr. Banks’s Rule 3.850 post-conviction motion after the federal statute of

limitations had run. He did not know that an extension of time granted by the circuit

court did not toll the federal clock.” See Doc. 24 at 2-3.1

Petitioner argues that the alleged incompetence of his post-conviction counsel

is an extraordinary circumstance and that he has exercised due diligence. “Equitable

tolling is appropriate when a movant untimely files because of extraordinary

circumstances that are both beyond his control and unavoidable even with diligence.”

 Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999)(emphasis added) cf.

28 U.S.C. § 2244(d)(1)(D)(setting forth explicit diligence requirement). Equitable

tolling is an “extraordinary remedy” which has been used “only sparingly” by the

federal courts. Jones v. United States, 304 F.3d 1035, 1038-39 (11th Cir.

2002)(quoting Irwin v. Dept. of Veteran Affairs, 498 U.S. 89, 96, 111 S. Ct. 453,

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457, 112 L. Ed. 2d 435 (1990)); Johnson v. United States, 340 F.3d 1219, 1226

(11th Cir. 2003) aff’d, 125 S. Ct. 1571, 161 L. Ed. 2d 542 (2005). The issues raised

here, then, are: (1) whether the ineffective assistance of counsel in collateral postconviction proceedings can be the basis of Section 2254 habeas corpus relief; (2)

whether petitioner was diligent in his attempt to file a timely petition; and (3) whether

the circumstances advanced by petitioner were so “extraordinary” and beyond his

control as to excuse his untimely filing.

First, it is settled that ineffective assistance of collateral post-conviction counsel

is not a claim cognizable in a federal habeas corpus proceeding. See 28 U.S.C. §

2254 (i)(2000)(“The ineffectiveness or incompetence of counsel during Federal or

State collateral post-conviction proceedings shall not be a ground for relief in a

proceeding arising under section 2254.”); Pennsylvania v. Finley, 481 U.S. 551, 555,

107 S. Ct. 1990, 1993, 95 L. Ed. 2d 539 (1987). Moreover, the court in Helton v.

Secretary for Dept. of Corrections, 259 F.3d 1310, 1314-15 (11th Cir. 2001), when

addressing the district court’s holding that the merits of the case contributed to a

finding of extraordinary circumstances warranting equitable tolling, stated as follows:

The “extraordinary circumstances” standard applied in this circuit focuses

on the circumstances surrounding the late filing of the habeas petition,

rather than the circumstances surrounding the underlying conviction.

(Cites omitted). The circumstantial nature of the case against Helton

does not relate to the circumstances, if any, justifying his failure to

timely file his section 2254 petition. The district court erred, therefore,

in focusing upon the merits of the case to justify equitable tolling.

Second, petitioner’s response (doc. 24) fails to assert facts which could be

construed as an attempt by petitioner to act diligently with regard to filing his federal

habeas petition within the applicable time limitations. The response simply states that

“[i]t was not until Mr. Hazen intervened pursuant to Mr. Banks’s diligence that his

petition for writ of habeas corpus was filed at all.” (Doc. 24 at 3). This bare

assertion, without more, is insufficient to meet the requirement that petitioner

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2

Other circuit courts of appeal have also held that attorney negligence is not sufficient to warrant

application of the equitable tolling doctrine in this context. See Trenkler v. United States, 268 F.3d 16 (1st Cir.

2001); Smaldone v. Senkowski, 273 F.3d 133 (2nd Cir. 2001); Rouse v. Lee, 339 F.3d 238 (4th Cir. 2003),

cert. denied, 541 U.S. 905, 124 S. Ct. 1605, 158 L. Ed. 2d 248 (2004); Cousin v. Lensing, 310 F.3d 843 (5th

Cir. 2002); United States v. Martin, 408 F.3d 1089 (8th Cir. 2005).

Case No.: 4:03cv328RV

demonstrate that he acted with diligence in pursuing his federal petition. In addition,

it is relevant to note that while attorney Hazen was appointed to represent petitioner

in this federal proceeding on October 15, 2003 (doc. 2), petitioner’s petition for a writ

of habeas corpus was not actually filed until December 1, 2004, when it was

incorrectly filed as a new case in the Tallahassee division. Therefore, once attorney

Hazen intervened, no petition was filed for over thirteen months. No explanation has

been given for this lengthy delay. See Diaz v. Secretary for the Dept. of Corrections,

362 F.3d 698, 702 (11th Cir. 2004)(“Without considering the time that the initial

federal habeas petition was pending or the time that the state collateral proceedings

were pending, the two foregoing delays total 532 days, exceeding Diaz’s one-year

time limitation by 167 days. Diaz offers no excuse for this delay. Thus, this delay

alone constitutes a lack of due diligence and disentitles Diaz to equitable tolling.”);

Drew v. Dept. of Corrections, 297 F.3d 1278, 1287 (11th Cir. 2002)(While claiming

that he did not receive the district court’s order dismissing his initial federal habeas

petition until almost a year after it was rendered, “Drew’s own lack of diligence

precludes us from equitably tolling the statute of limitations . . . . the record reflects

that, for a period of some sixteen months, Drew made virtually no effort to ascertain

the status of his first habeas petition in the district court. This lack of diligence

ultimately prevented Drew from filing the instant federal habeas petition until well after

the AEDPA statute of limitations had expired.”). 

Finally, with respect to whether the circumstances set out by the petitioner

were so “extraordinary” as to excuse the untimely filing, the law in this circuit is clear

that attorney error does not create the “extraordinary circumstances” which equitable

tolling requires.2

 Sandvik, supra, (holding that mere attorney negligence is not a basis

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for equitable tolling). See also Helton, supra (holding that petitioner’s attorney’s

misinforming him as to deadline to file federal habeas petition did not constitute

“extraordinary circumstance” warranting equitable tolling); Steed v. Head, 219 F.3d

1298, 1300 (11th Cir. 2000) (holding “[a]ny miscalculation or misinterpretation by

Steed’s attorney in interpreting the plain language of the statute does not constitute

an extraordinary circumstance sufficient to warrant equitable tolling.”); Jackson v.

Crosby, 375 F.3d 1291 (11th Cir. 2004) (holding in a capital case that attorney’s

miscalculation of applicable time limits does not support application of equitable

tolling). As noted in a special concurrence in Jackson, “. . . the rules relating to

timeliness of filing and appellate court jurisdiction apply without respect to the identity

of parties or the nature of the case. We do not have one set of rules for petitioners

and their attorneys in capital cases and another set for everyone else.” Id. at 1300

(Carnes, J., concurring). 

The fact that petitioner’s collateral post-conviction counsel filed his Rule 3.850

motion without leaving sufficient time to file a federal petition is not an extraordinary

circumstance which warrants application of the equitable tolling doctrine. Howell v.

Crosby, No. 04-16542, 2005 WL 1554202 (11th Cir. July 6, 2005), is directly on

point with the facts of this case. In Howell, the petitioner’s attorney obtained an

extension of time to file his Rule 3.850 petition, which was filed two months after the

federal limitations period elapsed. Howell’s federal petition was filed two months

after the denial of his post-conviction relief was affirmed by the Supreme Court of

Florida and over five years after the federal limitations period had expired. Howell

argued his attorney’s negligence in failing to file within the applicable limitations period

was an extraordinary circumstance which warranted equitable tolling. In keeping with

established precedent, the court held “attorney negligence is not a basis for equitable

tolling, especially when the petitioner cannot establish his own diligence in

ascertaining the federal habeas filing deadline.” Id. 

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Petitioner has not alleged any facts which demonstrate his diligence in

ascertaining the federal habeas limitations period, nor in pursuing the timely filing of

his federal petition. Additionally, his assertion of attorney negligence is not an

“extraordinary” circumstance which warrants application of the equitable tolling

doctrine. Therefore, he has presented an insufficient factual basis to establish that

equitable tolling should apply to his case. Petitioner’s federal habeas petition was filed

well after the limitations period provided for in AEDPA had expired. Thus, his petition

was untimely filed.

Accordingly, it is hereby ORDERED:

 1. Respondent’s motion for summary judgment (doc. 10) is GRANTED.

2. The petition for writ of habeas corpus (doc. 7) challenging the sentence

in State v. Chadwick D. Banks, in the Circuit Court of Gadsden County,

Florida, Case No. 92-841, is DISMISSED. The Clerk is directed to close

the file in this case.

DONE AND ORDERED this 29th day of July, 2005.

/s/ Roger Vinson 

ROGER VINSON

Senior United States District Judge

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