IN THE UNITED STATES DISTRICT COURT 

 FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

QUINTIN PHILLIPPE JONES, §

Petitioner, §

 §

V. § CIVIL ACTION NO. 4:05-CV-638-Y

 §

WILLIAM STEPHENS1, Director, §

Texas Department of Criminal § (death-penalty case)

Justice, Correctional §

Institutions Division, § 

Respondent. §

MEMORANDUM OPINION AND ORDER ON REMAND

DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Quintin Phillippe Jones petitioned the Court for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254, contending that

his conviction and death sentence are unconstitutional. The Court

dismissed Jones’s petition as time-barred, and Jones appealed. The

United States Court of Appeals for the Fifth Circuit remanded the

case for consideration of the intervening opinion in Holland v.

Florida, 130 S. Ct. 2549 (2010). Jones has filed a post-remand brief

arguing that Holland allows equitable tolling. Respondent filed a

brief in opposition, and Jones filed a reply. 

The Court concludes that Holland does not allow equitable tolling

because here the untimely filing of the petition was a result of his

counsel’s ordinary negligence in miscalculating the deadline and

1

The previously-named respondent in this action was Rick Thaler. 

On June 1, 2013, William Stephens succeeded Rick Thaler as the Director

of the Correctional Institutions Division of the Texas Department of

Criminal Justice. Under Rule 25(d) of the Federal Rules of Civil

Procedure, he "is automatically substituted as a party."

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 1 of 27 PageID 1106
because the other alleged errors that Jones attributes to his federal

habeas counsel, if true, did not cause the untimely filing. 

Furthermore, Jones made no independent effort to ensure the timely

filing of his petition. 

I. BACKGROUND FACTS

Equitable tolling is a fact-intensive inquiry. The Court therefore sets forth in some detail the facts that underlie Jones’s claim,

as shown in the record and the parties’ exhibits. 

The Texas Court of Criminal Appeals (“CCA”) appointed Jack

Strickland as Jones’s state habeas counsel on December 3, 2003. Ex.

A.2 Six days later, Strickland wrote Jones a letter stating he had

been appointed and intended to visit Jones and asking Jones to provide

his version of the events leading up to his conviction. Strickland

also explained, among other things, that the deadline for filing the

state habeas application was “etched in stone” and would not be

extended. Ex. B. In his reply, Jones told Strickland he wanted to

raise Wiggins and Atkins3 claims in the state habeas application

because he did not believe that his mental and social history were

presented at trial the way they should have been. Ex. C. Two months

later, Strickland wrote another letter reminding Jones to send the

information Strickland had requested. Ex. D. 

2

The exhibits cited are attached to Jones’s post-Holland brief,

unless otherwise indicated. 

3 See Wiggins v. Smith, 539 U.S. 510 (2003); Atkins v. Virginia, 536

U.S. 304 (2002).

2

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 2 of 27 PageID 1107
Strickland and his investigator then visited Jones in prison

on July 12, 2004. See Ex. F. During this initial visit, Strickland

and Jones discussed Jones’s medical and psychiatric history. Ex.

F. After Strickland’s visit, Jones wrote him two more letters about

the Wiggins and Atkins claims, providing case law and the names of

places where Strickland could find his school and hospital records. 

Ex. E, F. The record does not show that Strickland answered these

letters.

On September 28, 2004, Strickland sent Jones a copy of the state

writ application that he had filed on Jones’s behalf. Ex. G. The

writ did not include a Wiggins or an Atkins claim.4 Jones wrote five

more letters to Strickland, asking why Strickland did not raise the

claims, complaining of Strickland’s lack of response, citing to case

law and the American Bar Association Guidelines, and advising

Strickland that the issues will be harder to bring up at the federal

stage if they are not raised in state court. Ex. H, K, M, O, Q. 

There is no indication in the record that Strickland responded

to these letters from Jones. Jones wrote to the trial judge in

February and September of 2005 asking for help in communicating with

4

The state writ contained the following claims: (1) state and

federal constitutional error under Missouri v. Seibert, 542 U.S. 600

(2004), based on the admission of a confession obtained through a

“question-first, warn-later” interrogation tactic; (2)state and federal

constitutional error in the delay of the appointment of counsel; (3)

newly discovered evidence that the laboratory employee who testified at

trial was not a credible witness, and (4) a due process claim seeking

extra-record development of new scientific research concerning the

effects of low serotonin levels on Jones’s behavior. (1 SHR 20-42)

(State Habeas Record). 

3

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 3 of 27 PageID 1108
Strickland, apparently to no avail. Ex. N, R. On May 2, 2005,

however, Strickland responded to a letter from Jones’s aunt, who had

inquired on Jones’s behalf. Ex. L. Strickland assured the aunt that

Jones’s lawyers were doing everything they could to gain him a new

trial or commute his death sentence and would continue to work on

his behalf. Ex. P. 

On September 14, 2005, the CCA denied habeas relief. Ex parte

Jones, 2005 WL 2220030, No. WR-57,299-01 (Tex. Crim. App. Sept. 14,

2005) (not designated for publication). The assistant attorney

general (“AAG”) assigned to the case wrote Strickland a letter

stating, erroneously, that relief had been denied in March of 2005

and advising him of his duty to move for the appointment of federal

habeas counsel and of the habeas deadline in 28 U.S.C. § 2244(d). 

Respondent’s Ex. A. Strickland replied to the AAG the same day,

enclosing a highlighted copy of the AAG’s letter and stating that

he was aware of his obligation in the matter. Respondent’s Ex. A.

The letter indicates that a copy was sent to Jones. Respondent’s

Ex. A. On October 5, 2005, Jones wrote Strickland, advising that

he had seen the AAG’s letter and asking that Strickland not get

appointed in federal court. Ex. S.

This Court appointed Strickland as federal habeas counsel on

November 3, 2005. In a letter dated November 15, Jones questioned

how they could work together given Strickland’s lack of communication

in the past, and he asked Strickland to visit him. Ex. T. On

4

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 4 of 27 PageID 1109
December 22, Jones again wrote to Strickland, stating he had not

received any communication about the case and complaining that

Strickland’s state writ (which, he observed, was “filed late, I might

add”) did not raise his mitigating issues. Jones asked Strickland

not to file anything in federal court except a motion to step down

as counsel. Jones also advised that a friend was assisting him in

filing a motion to appoint different counsel and notes that “the State

Bar has stated you did not violate their rules but the media might

see it differently.” See U. 

Jones filed a pro-se motion for appointment of different counsel

in this Court on December 27, 2005, and reurged the motion on March

6, 2006. The pro-se motion alleged that Strickland did not

investigate Jones’s background of mental disorders, did not request

funds to conduct intelligence tests on Jones, did not raise any

mitigation claims in the state application, was held in contempt for

untimely filing the state writ application,5

 and sought appointment

as federal counsel against Jones’s wishes. The motion accuses

Strickland of having “no intention of helping the Petitioner’s

appeals,” and being “allowed, and encouraged, to profit by sabotaging

5

New counsel for Jones agrees that Strickland was not held in

contempt. Brief, p. 34 n.6. On October 22, 2004 the trial court entered

findings that the state habeas application had been filed 30 days late

due to counsel’s numerous significant and urgent professional

responsibilities. The trial court recommended that the CCA accept the

late filing. Ex. I. The CCA found good cause for the untimely filing

and accepted the application as filed on November 10, 2004. Ex. J. 

5

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 5 of 27 PageID 1110
of a death row prisoner’s appeals.” Motion for Appointment of

Different Counsel, p. 6 [doc. 9, 14]. 

On March 7, 2006, Strickland filed a response to the motion

explaining why he believed Jones’s complaints were meritless. 

Response from Petitioner’s Counsel [doc. 16]. In it, Strickland

stated that all the information in the school, hospital, and mental

health records mentioned by Jones were discovered by trial counsel,

admitted at trial, and made available to counsel, and that Jones is

simply complaining that counsel did not “replow the same ground.” 

Strickland stated that additional IQ tests were not needed because

reliable testing had been done by a forensic psychologist who

testified at trial, that Jones’s score of 79 was outside the range

of mental retardation even considering the standard measurement error,

that the trial court did not limit the presentation of IQ evidence

or any other psychological opinions, and that it would have been

unreasonable to seek further testing under the circumstances. 

Strickland also pointed out that he did, in fact, raise a mitigationrelated claim in the state writ application regarding the effect of

serotonin levels on behavior. Response from Petitioner’s Counsel,

p. 4; (1 SHR 41, 122). Strickland further wrote:

Although it is apparently not the style in much postconviction litigation, attorneys have a professional

obligation to raise only such arguments as are supported

by the facts and the law. Perpetual testing without a

good-faith basis or fishing for compliant experts is

irresponsible and unprofessional. So too is raising

spurious claims. A wholesale, non-selective adoption of

every claim or argument which a client demands his lawyer

6

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 6 of 27 PageID 1111
to raise puts the accused squarely in control of a case

and reduces the lawyer to little more than a mouthpiece. 

Petitioner has been represented at every stage of his case

by unusually gifted and conscientious lawyers. . . . If

there had been any additional mitigation evidence, [trial

counsel] would have presented it for the jury’s consideration. Had [trial counsel] failed to do so, Strickland

would have raised that failure on petitioner’s state writ

application. Sadly for petitioner, such was not the case.

Response from Petitioner’s Counsel, p. 4-5 [doc. 16]. On March 9,

2006, this Court denied the pro-se motion for different counsel.

During the time the pro-se motion was pending, three letters

were exchanged between Strickland and Jones. In a letter from

Strickland dated January 12, 2006, responding to Jones’s letter of

December 22, 2005, Strickland said he would “once again attempt to

address some of your concerns.” Ex. V. Strickland stated that he

was appointed as federal habeas counsel against his [Strickland’s]

wishes and that under the circumstances, he will continue as counsel. 

Strickland explained he would not file frivolous or meritless claims

“nor casually impugn the integrity or competence of your prior

attorneys.” Strickland advised that, given the unusually horrific

facts of the case, it was his opinion that all of Jones’s lawyers

had done their best, and that Jones seemed “intent on blaming everyone

who has tried to assist” him “while seemingly ignoring [his] own

behavior.” Ex. V. Strickland also stated, incorrectly, that the

federal statute of limitations would expire one year from the denial

of the state writ, or September 14, 2006. He said he would keep Jones

advised of the progress, invited Jones to provide him with any

7

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 7 of 27 PageID 1112
additional information or thoughts that he believed might be helpful,

and hoped that their future relationship “proves less rocky.” Ex.

V. 

Jones responded twice to this correspondence, once on January

22, and again on February 27, 2006. The gist of both letters is that

Jones asked Strickland to remove himself from the case because

Strickland was sarcastic in his correspondence and would not raise

the issues of mental retardation, Jones’s mental hospital stay, and

special education classes. Jones then states, “Also, what should

I expect during this federal appeal stage? I know you told me that

I had a year to file. But what [does] the court expect in that time

frame? And what are you supposed to do yourself? And what’s expected

of me?” Ex. W, X.

Jones’s next letter is dated April 18, 2006, which, coincidentally, is the day the limitations period expired. In it, he acknowledged that the Court denied his motion for different counsel and

asked what type of appeal Strickland plans to file before the

“September deadline.” Ex. Y. Apparently, Strickland did not respond

to this letter, triggering Jones to request assistance from the Court

in a letter dated June 4. Ex. Z. The Court forwarded this letter

to Strickland on June 16 and asked him to respond. Ex. ZA. 

Strickland provided a status update on June 28, 2006. Ex. ZB. 

He explained to Jones the difference between an appeal, a state writ,

and a federal writ. Strickland stated he was in the process of again

8

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 8 of 27 PageID 1113
reviewing the record to determine what claims may be available in

federal court. He stated that he would be conferring with Jones by

letter and in person on the “extra-record claim concerning your mental

health issues” which was “of major concern.”6 Strickland explained

that, of all the hurdles that apply to a state prisoner’s federal

habeas claim, the most important is the one-year statute of

limitations. He said, “Under 28 USC 2244(d)(1), state prisoners

ordinarily have one year from the date their conviction became final

to file their federal petition.” He then stated, again incorrectly,

that Jones’s federal petition was due one year from the date the state

writ was denied, or September 13, 2006. Strickland also explained

that he would represent Jones in clemency proceedings but that

clemency, and habeas relief itself, are remote possibilities. He

stated that he thought it was important for Jones to have a realistic

view of his situation and closes, “I hope I have addressed your

concerns.” Ex. ZB.

On September 14, 2006, Strickland filed the federal petition

and sent a copy to Jones [doc. 19]. His cover letter states:

I know that you strongly believed that it was appropriate

to raise the mitigation issue in this petition. I

disagree. Your attorneys thoroughly investigated your

6

Jones seems to argue that this was an unfulfilled promise to

investigate Jones’s mental impairments related to the Wiggins and Atkins

claims. Reply Brief, p. 6 n.3. Given Strickland’s previously asserted

belief that such claims lacked merit, it more likely refers to the extrarecord serotonin claim, which Strickland sought to develop in state

habeas proceedings. See Response from Petitioner’s Counsel, p. 4; (1

SHR 41).

9

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 9 of 27 PageID 1114
mental health history. Evidence of that history was

presented to the jury. Two psychologists not only took

that history into account, but conducted additional testing

in order to render opinions about your competence and

mental status. A psychiatrist examined you prior to trial. 

The court submitted the mitigation special issue and your

attorneys argued the question to the jury. In short, it

is my professional opinion, based on all of the information

which I have considered, that this issue was very well

investigated and presented. The fact that the jury did

not believe the mitigation issue justified an affirmative

answer to the special issue does not raise a constitutional

claim.

Ex. ZC.

Respondent filed both an answer and a motion to dismiss the

petition. The Court dismissed the petition as time-barred on

September 21, 2007, and the clerk mailed a copy of the judgment to

both Strickland and Jones [doc. 28, 29]. On September 27, 2007, Jones

wrote to Strickland, asking if he knew about the dismissal and what

his options were. Ex. ZD. Strickland replied on October 9 that he

had received the Court’s judgment, was in the process of determining

what could be done, and had urged the district attorney to withhold

setting an execution date. Ex. ZE. Strickland did not appeal the

judgment of dismissal.

On February 27, 2008, the Court received a letter from Jones

stating he did not wish to abandon his appeal and had been unable

to contact Strickland. Letter [doc. 34]. Lydia Brandt was appointed

as new counsel on March 21, 2008. On Brandt’s motion, the Court

vacated the judgment of dismissal. Order Granting Petitioner’s Motion

for Relief from Judgment [doc. 43]. After receiving additional

10

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 10 of 27 PageID 1115
briefing from Brandt on the application of the statute of limitations,

the Court again dismissed the petition as untimely. Mem. Op. and

Order Dismissing Petition for Writ of Habeas Corpus(“Dismissal Order”)

[doc. 59]. 

Relying on Fifth Circuit precedent as well as Lawrence v.

Florida, 549 U.S. 327 (2007), this Court ruled that, absent “deceitful

or other similarly egregious conduct,” federal habeas counsel’s

actions constituted neglect, not the extraordinary circumstances

necessary for equitable tolling. Dismissal Order, p. 10-12; see

Lawrence, 549 U.S. at 336-37 (assuming equitable tolling is available

under § 2244(d) and holding that “[a]ttorney miscalculation is simply

not sufficient to warrant equitable tolling”). The Court also

addressed whether its denial of the pro-se motion for different

counsel contributed to the petition’s being filed late. The Court

concluded it did not because the motion was denied thirty days prior

to the filing deadline, and Strickland was not relieved of his duties

while that motion was pending. Strickland had 167 days from the date

of appointment before the statute-of-limitations period expired. 

The Court found no evidence that Strickland relied on anything said

or done by the Court in filing a tardy petition. Dismissal Order,

p. 10-11. The Court also addressed Strickland’s failure to file a

reply to the motion to dismiss and his failure to appeal this Court’s

first dismissal order. The Court concluded that, while not admirable,

these actions did not contribute to the lateness of the petition. 

11

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 11 of 27 PageID 1116
Even so, the Court rectified the situation by appointing new counsel

and vacating its previous judgment. Dismissal Order, p. 8-9. Jones

appealed this second dismissal order and, as noted, the case has been

remanded for consideration under Holland, 130 S. Ct. 2549 (2010).

 II. APPLICABLE LAW

The Anti-Terrorism and Effective Death Penalty Act of 1996

(“AEDPA”), establishes a one-year statute of limitations for seeking

federal habeas relief from a state-court judgment. 28 U.S.C. §

2244(d)(1). The limitations period is tolled, however, for "[t]he

time during which a properly filed application for State

post-conviction or other collateral review" is pending. § 2244(d)(2). 

Jones does not dispute that Strickland mistakenly filed the federal

petition 149 days late by failing to account for the 149 days (prior

to the filing of the state habeas application) when the federal

limitations period was not tolled by any state case. The only issue

before the court is whether the facts surrounding the representation

authorize equitable tolling so that the petition may be considered

timely.

The Supreme Court in Lawrence assumed without deciding that

equitable tolling was available under § 2244(d). Lawrence, 549 U.S.

at 336. Three years later, the Supreme Court explicitly held in

Holland that equitable tolling was available under § 2244(d) where

a petitioner shows “‘(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in

12

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 12 of 27 PageID 1117
his way’ and prevented timely filing.” Holland, 130 S. Ct. at 2562

(quoting Pace v. DeGuglielmo, 544 U.S. 408, 418 (2005)). Holland

recognized that “serious instances of attorney misconduct” short of

“bad faith, dishonesty, divided loyalty, mental impairment, or so

forth,” could meet the test for “extraordinary circumstances” and

justify equitable tolling. Id. at 2563-64. In establishing the

standard, the opinion emphasized that courts of equity “must be

governed by rules and precedents no less than courts of law,” but

also recognized the need for flexibility and for avoiding fast

adherence to “more absolute legal rules, which if strictly applied,

threaten the ‘evils of archaic rigidity.’” See id. at 2563. The

Holland majority affirmatively acknowledged the rule in Lawrence,

that a garden variety claim of excusable neglect such as a simple

“‘miscalculation’ that leads a lawyer to miss a filing deadline” does

not warrant equitable tolling. See Holland, 130 S. Ct. at 2564

(citing Lawrence).

The concurring opinion elaborated that “extraordinary circumstances” for equitable tolling involve more than ordinary or gross

negligence on the part of counsel, as these mistakes are

constructively attributable to the client, at least in the postconviction context where there is no constitutional right to an

attorney. Id. at 2566 (Alito, J., concurring). Otherwise, there

would be a basis for arguing equitable tolling in almost every case

involving a missed deadline. Id. at 2567. Justice Alito also

13

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 13 of 27 PageID 1118
observed that, “Although attorney negligence, however styled, does

not provide a basis for equitable tolling, the AEDPA statute of

limitations may be tolled if the missed deadline results from attorney

misconduct that is not constructively attributable to the petitioner.” 

Id. at 2568. Justice Alito observed that the alleged misconduct of

Holland’s attorney essentially amounted to abandonment which, if true,

could suffice to establish extraordinary circumstances beyond

Holland’s control. Id.; see Manning v. Epps, 688 F.3d 177, 184 n.2

(5th Cir. 2012) (noting that attorney abandonment can qualify as an

extraordinary circumstance for equitable tolling purposes).7

As for the diligence requirement, Holland teaches that the

diligence for equitable tolling purposes is “reasonable diligence,”

7

Jones asserts that the Supreme Court opinion in Martinez v. Ryan

could change the analysis if it creates a constitutional right to counsel

for state post-conviction proceedings. Reply at 17. The opinion in

Martinez has since issued, and it did not establish a constitutional

right to state habeas counsel. See Martinez v. Ryan, 132 S. Ct. 1309

(2012); see also Trevino v. Thaler, 133 S.Ct. 1911 (2013) (applying

Martinez to Texas cases). It determined, as a matter of equity, that the

ineffective assistance of state habeas counsel can excuse the procedural

default of federal habeas claims asserting the ineffective assistance of

trial counsel. Martinez, 132 S. Ct. at 1320. This is a narrow holding

and “does not concern attorney errors in other kinds of proceedings.” 

Id. Because of its limited application, the opinion also asserts that

it “does not implicate the usual concerns with upsetting reliance

interests protected by stare decisis principles.” Id. at 1319.

 

This clear language precludes the application of Martinez outside

the area of procedural default of ineffective assistance claims, and it

affirms that the principles established and relied upon in Lawrence and

Holland apply here. See also Maples v. Thomas, 132 S. Ct. 912, 922

(2012) (holding that the Court does not disturb the general rule 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” under Coleman).

14

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 14 of 27 PageID 1119
not “maximum feasible diligence.” Id. at 2565. The Fifth Circuit

has expanded on Holland in Manning v. Epps, holding that petitioners

seeking to establish due diligence must exercise diligence even when

they received inadequate legal representation. Manning, 688 F.3d

at 185-86. Because pro-se petitioners are expected to comply with

the AEDPA’s statute of limitations, it would be unfair to expect less

from petitioners who have counsel. Id. at 185; see Lawrence, 549

U.S. at 337 (recognizing that it would be perverse if providing

prisoners with postconviction counsel deprived the states of the

benefit of the AEDPA statute of limitations). 

With these principles in mind, the Court first addresses whether

Jones has established “extraordinary circumstances” under Holland.

III. DISCUSSION

A. Extraordinary Circumstances

While not expressly finding that extraordinary circumstances

existed8, the Court in Holland observed that the following circumstances, which violated fundamental canons of professional responsibility, may well constitute far more than “garden variety” or

“excusable” neglect so as to allow for equitable tolling: in addition

to counsel’s filing a late petition and being unaware of the filing

deadline, (1) Holland had sent many letters to counsel repeatedly

emphasizing the importance of a timely filing, (2) counsel did not

8

The Court set aside the district court’s judgment, but remanded the

case to the Eleventh Circuit to determine whether the facts entitled

Holland to equitable tolling. Holland, 130 S. Ct. at 2565.

15

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 15 of 27 PageID 1120
do the legal research to find out the proper filing date, despite

Holland’s having identified the applicable rules in his letters, (3)

his counsel failed to inform Holland in a timely manner of the crucial

fact that the state supreme court had decided his case, despite

Holland’s many pleas for that information, and (4) counsel failed

to communicate with his client for a period of years, despite various

pleas from Holland that counsel respond. Id. at 2564-65. 

Jones argues that his limitations period must be equitably tolled

because his case likewise involves violations of the Texas Rules of

Professional Conduct and the American Bar Association Guidelines for

capital defense counsel. Specifically, Jones asserts that Strickland 

made the following errors:

1. failed to conduct a mitigation investigation, despite Jones’s

repeated requests, because he perceived such an investigation

as an attack on his colleagues in the criminal defense bar

(Brief at 26-27);

2. filed his state habeas application thirty days late (Brief at

28); 

3. did not file a reply to respondent’s motion to dismiss (Brief

at 29);

4. filed applications late in three other, unrelated state habeas

cases (Brief at 29);

5. failed to communicate with Jones between January 12, 2006, and

June 28, 2006 (Brief at 31);

6. failed to inform Jones that the state and federal petitions had

been filed late (Brief at 31-32);

7. breached a duty of loyalty by being hostile towards Jones in

his communications with this Court and by failing to pursue

ineffective-assistance-of-counsel claims against Jones’s former

attorneys (Brief at 34-35);

16

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 16 of 27 PageID 1121
8. de-facto abandoned Jones after the untimely filing of the

federal petition by filing no reply to the respondent’s answer

and motion to dismiss and filing no appeal of the dismissal,

without notice to his client (Brief at 37-38). 

Assuming the veracity of these allegations, none of Strickland’s

failures in this case are shown to have contributed to the tardiness

of the petition. As stated above, Holland requires that extraordinary

circumstances stood in the petitioner’s way “and prevented timely

filing.” Holland, 130 S. Ct. at 2562; see Clarke v. Rader, ___ F.3d

___, 2013 WL 3179570, No. 12-30252 (5th Cir. June 24, 2013) (denying

equitable tolling where there was no evidence that a delay in

notifying petitioner of the denial of his state petition contributed

to the untimely filing of his federal petition); Harper v. Ercole,

648 F.3d 132, 137 (2d Cir. 2011) (“To secure equitable tolling, it

is not enough for a party to show that he experienced extraordinary

circumstances. He must further demonstrate that those circumstances

caused him to miss the original filing deadline”). The circumstances

in Holland contributed to counsel’s failure to timely file a federal

petition and inhibited Holland’s own ability to meet the filing

deadline himself. The same cannot be said in this case. 

Jones does not allege and the record does not show how

Strickland’s alleged failure to conduct a mitigation investigation

prevented a timely filing. If anything, a decision to forego an

investigation would have helped Strickland meet an earlier deadline. 

Similarly, Strickland’s 30-day delay in filing Jones’s state

application is insufficient to have caused the 149-day delay in this

17

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 17 of 27 PageID 1122
Court. Even more obvious, Strickland’s untimely filings in unrelated

state habeas cases have no asserted connection to this case.9

Counsel’s alleged failure to inform Jones that he had filed the state

application late and to communicate with Jones between January and

June of 2006 are not connected to the untimely federal filing. 

Moreover, Jones knew, at least as of December 22, 2005, that the state

application had in fact been filed late. Ex. U. Strickland’s alleged

failure to inform Jones that the federal petition was filed late and

his alleged de-facto abandonment by not replying to Respondent’s

motion to dismiss and not appealing the first dismissal order, as

neglectful as these errors may be, occurred after the petition was

filed and could not have prevented a timely filing. Moreover, as

this Court previously concluded, it addressed the situation by

appointing new counsel and vacating its previous judgment. Dismissal

Order, p. 8-9. 

Finally, Jones’s contention that counsel breached a duty of

loyalty by being hostile to Jones in his communication with the Court

and failing to pursue ineffective-assistance claims against Jones’s

former attorneys lacks any asserted relationship to the timing of

the filing. To the extent that Jones may be implying that

9

In two of the cases, Strickland’s tardy petition was excused due

to a period of hospitalization and recuperation in July of 2008, more

than two years after Jones’s federal writ was due to be filed. See Ex.

ZH, ZI. The remaining case involved a tardy state filing in 2005, the

year before the federal writ was due in this case, for which the CCA also

found good cause. See Ex. ZG. 

18

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 18 of 27 PageID 1123
Strickland’s alleged disloyalty caused him to neglect this case or

erroneously calculate the due date of the federal petition, there

is no indication of this in the record. On the contrary, Strickland

wrote and visited Jones soon after his appointment in state court

and discussed with Jones the medical, psychiatric, and special

education records that would later become the source of friction

between them. Ex. F. When Strickland wrote Jones in January 2006,

he stated he would “once again attempt to address some of your

concerns,” indicating the matter had been previously addressed. Ex.

V. During the time the case was pending in state court, Strickland

apparently did not respond to Jones’s repeated inquiries about the

Wiggins and Atkins claims, but he did respond to a letter from Jones’s

aunt. Ex. P. In his letters to Jones, Strickland stressed the

importance of meeting the filing deadlines in both state and federal

court. Ex. B, V, ZB. 

The applications filed by Strickland in both state and federal

court raise well-drawn, substantive, federal constitutional claims

that are founded in the existing record or seek extra-record

development. They involve cutting-edge Supreme Court precedent, newly

discovered evidence, and a new scientific theory in behavioral

science. (1 SHR 2-44; doc. 19). The federal petition contains 34

supporting exhibits; it anticipates and responds to a procedural bar

that was, in fact, later asserted by Respondent. [doc. 19, 26]. It

shows a clear understanding of the AEDPA standard that is required

19

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 19 of 27 PageID 1124
for obtaining relief and makes an argument to meet it. Given

Strickland’s overall representation, this record shows nothing more

than a garden-variety claim of neglect in Strickland’s failure to

account for the days in state court when no state filing tolled the

limitations period.

To be sure, allegations of ineffectiveness, unprofessionalism,

or de-facto abandonment that prevent the timely filing of a petition

may justify tolling under Holland, even absent deceitful or other

similarly egregious conduct. But the record shows that the difficulties between Jones and Strickland involved Strickland’s decision not

to include what he believed to be frivolous claims and his refusal

to discuss the matter with Jones after a certain point. Jones does

not, and cannot, argue that Strickland’s refusal to press what he

believes are meritless claims justifies equitable tolling. See Jones

v. Barnes, 463 U.S. 745, 751 (1983)(recognizing that an indigent

defendant has no constitutional right to compel appointed counsel

on appeal to press even non-frivolous points if counsel, as a matter

of professional judgment, decides not to present those points). 

Instead, Jones contends that Strickland refused to investigate these

claims because he “perceived such an investigation as an attack on

his colleagues in the criminal defense bar, whom he held in high

regard.” Brief, p. 26. 

This factual allegation has no support in the record. Jones

attributes ill motive to Strickland’s decision only by ignoring the

20

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 20 of 27 PageID 1125
explanatory evidence in the record that contradicts it. See Response

from Petitioner’s Counsel, p. 4-5; Ex. ZC (Strickland’s letter of

September 14, 2006). Jones’s assertion that Strickland acted on

misplaced loyalty rather than his assessment of the merits is further

undermined by the fact that new counsel, Brandt, filed an amended

petition that did not include a mental retardation claim under Atkins

nor did it allege that trial counsel overlooked mitigating evidence

in violation of Wiggins. See Motion for Leave to File Amended

Petition [doc. 57].

The circumstances in this case are unlike Holland. Holland’s

counsel did not file a petition until after Holland (who had

independently discovered the omission while working in the prison

law library) filed his own pro-se petition. Here, Strickland complied

with what he calculated the deadline to be, and he had previously

communicated that deadline to Jones on two occasions. Where Holland

wrote to his counsel emphasizing the importance of a timely filing,

it was Strickland who emphasized the importance of a timely filing

here; Jones’s communication focused solely on the Wiggins and Atkins

claims. Counsel in Holland did not do the legal research to learn

the proper filing date, despite Holland’s providing the applicable

rules to counsel; here, Strickland provided the applicable statute

to Jones. Ex. ZB. Counsel for Holland failed to inform Holland in

a timely manner that the state supreme court had decided his case;

here, Strickland notified Jones within twelve days. Respondent’s

21

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 21 of 27 PageID 1126
Ex. A. Holland alleged a “near-total” failure of counsel to

communicate over a period of years, while the alleged communication

gap in this case was five months, with no apparent relationship to

the filing of the petition. See Ex. V, ZB. 

In the end, this case is about a miscalculated deadline that

was clearly communicated to the client but went unnoticed and

uncorrected. Such miscalculations do not warrant equitable tolling. 

See Holland, 130 S. Ct. at 2564; Lawrence, 549 U.S. at 336 (“Attorney

miscalculation is simply not sufficient to warrant equitable tolling,

particularly in the postconviction context where prisoners have no

constitutional right to counsel.”); see also Maples v. Thomas, 132

S. Ct. 912, 922 (2012) (“Thus, 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. . . . We do not

disturb that general rule.”). Under existing precedent, the Court

finds that Jones did not face extraordinary circumstances that

prevented the timely filing of his federal petition.

B. Due Diligence

The Court next considers whether Jones has demonstrated due

diligence, which is a closer call. The majority in Holland did not

decide whether Holland exercised due diligence, but it disagreed with

the district court’s conclusion that Holland did not exercise

diligence. The Court observed that Holland (1) wrote his counsel

letters seeking crucial information and providing direction, (2)

22

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 22 of 27 PageID 1127
repeatedly contacted the state courts, clerks, and state bar

association to have counsel removed, and (3) filed a pro-se habeas

petition the very day he discovered that the AEDPA clock had expired. 

Id. at 2565. Jones argues that he, like Holland, exercised reasonable

diligence in the following ways:

1. he wrote numerous letters to Strickland requesting crucial

information and providing direction (Brief at 9-11);

2. he wrote two letters to the trial judge asking for help (Brief

at 12);

3. he filed a grievance against Strickland with the State Bar of

Texas (Brief at 13); and

4. he wrote a letter to this Court stating that he wanted to appeal

the 2007 dismissal, after which the Court appointed new counsel

and granted a motion for relief from the judgment (Brief at 20-

21).

These facts are distinguishable from Holland in important ways. 

First, Jones’s efforts to secure his right to appeal the 2007

dismissal are arguably diligent. But Jones does not show that such

diligence, exhibited after the petition had already been filed,

justifies the tolling of the earlier time period within which the

petition had to be filed. See Doe v. Menefee, 391 F.3d 147, 175 (2d

Cir. 2004) (Sotomayor, J.) (affirming district court’s rejection of

equitable tolling where petitioner did not establish that he was

diligent “during the period that he seeks to toll.”).

Second, Jones took no independent steps to ensure that his

federal petition was timely filed. The law requires Jones to do no

more or less than a prisoner unrepresented by counsel, and “[i]t would

23

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 23 of 27 PageID 1128
be perverse indeed if providing prisoners with postconviction counsel

deprived States of the benefit of the AEDPA statute of limitations.” 

Lawrence, 549 U.S. at 337; see Melson v. Comm’r, 713 F.3d 1086, 1089

(11th Cir. 2013) (finding no “due diligence” where petitioner took

no independent steps to ensure that his federal habeas petition was

timely filed). Holland was kept uninformed about the status of his

state habeas application and was therefore prevented from taking

independent steps to ensure the filing of the petition. Under these

circumstances, it would be reasonable to conclude that Holland’s

repeated, unanswered requests for the information needed to take

independent action amounted to reasonable diligence.

But Jones was not similarly hindered. The CCA denied Jones’s

state writ application on September 14, 2005. In his letter to

Strickland on October 5, Jones acknowledges that the application had

been denied. See Respondent’s Ex. A; Petitioner’s Ex. S. Jones knew

that Strickland believed the federal deadline to be September 14,

2006, and, as of June 2006, Jones knew the statute of limitations

was located in 28 U.S.C. § 2244(d)(1). See Ex. V, ZB. It would have

taken very little effort to locate the statutory tolling provision

in (d)(2), immediately below (d)(1). It is true that Jones communicated with Strickland and the courts but his communication did not

concern the filing of his petition–-timely or otherwise–-but the

disagreement with Strickland over its contents. Having taken no

independent steps to ensure the timely filing of his petition, Jones

24

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 24 of 27 PageID 1129
fails to show reasonable diligence for equitable-tolling purposes.10

See Doe, 391 F.3d at 175 (holding that, even where extraordinary

circumstances involve attorney incompetence, petitioner must

demonstrate that he himself made reasonably diligent attempts to

ensure that his petition was filed on time). 

Jones argues that this focus is too narrow, that Holland only

requires a defendant to have exercised reasonable diligence “to

protect his legal rights.” Reply, p. 4. He asserts that he exercised

all the diligence Holland requires by filing a pro-se motion for

different counsel and that, but for the Court’s denial, “the legal

jeopardy that Mr. Jones now faces could have been prevented

altogether.” Reply, p. 4. This is true only in retrospect, as Jones

does not assert that the Court’s denial of his motion for different

counsel was erroneous when it was made. The Court finds no support

in Holland that reasonable diligence exists when a petitioner seeks

to remove counsel because he disagrees with the contents of the

petition. Moreover, as the Court previously determined, the denial

of different counsel did not prevent the timely filing of his

10In a footnote, Jones observes that his voluminous correspondence

to Strickland “does not rebut evidence of his significant mental

impairments,” and he cites to his 2006 pro-se filing, typed with the

assistance of another inmate. Brief, p. 20 n.1. This footnote could

suggest that the reasonable diligence required of the mentally impaired

petitioner is less than that required of petitioners with no mental

impairments. But Jones does not actually assert that he has significant

mental impairments; he merely refers generally in a footnote to the

supposed existence of such evidence. The Court observes, too, that

Jones’s mental status apparently did not prevent him from filing pro-se

motions in this Court, asserting a grievance with the State Bar, and

providing legal authority and advice in his letters to Strickland.

25

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 25 of 27 PageID 1130
petition, Dismissal Order, p. 10, nor would the appointment of

different counsel have necessarily resulted in a timely petition. 

Jones’s post-hoc argument would allow tolling in every case where

a court had denied a request for new counsel, no matter the reason

or validity of the ruling. 

Because Jones did not take any independent steps to ensure that

his petition was filed on time, he has not shown the reasonable

diligence required for equitable tolling. See Manning, 688 F.3d at

186 (The “act of retaining an attorney does not absolve the petitioner

of his responsibility for overseeing the attorney’s conduct or the

preparation of the petition.”) (citing Doe, 391 F.3d at 175); see

also Palacios v. Stephens, ___ F.3d ___, 2013 WL 3762674, No. 11-41080

(5th Cir. July 18, 2013) (denying equitable tolling because petitioner

failed to exercise reasonable diligence in hiring an attorney and

because the two week period he had after discharging his attorney

was enough time to file a protective federal petition).

IV. CONCLUSION

This Court has considered that there is a serious consequence

to dismissing a federal habeas petition in a death-penalty case. 

Nevertheless, “courts of equity ‘must be governed by rules and

precedents no less than the courts of law.’” Holland, 130 S. Ct.

at 2563. Jones does not provide authority, and this Court has found

none, holding that circumstances that do not prevent a timely filing

can nevertheless justify equitable tolling. On the other hand, there

26

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 26 of 27 PageID 1131
is binding authority that the negligent miscalculation of the deadline

is not grounds for equitable tolling–even in a death-penalty case. 

See Holland, 130 S. Ct. at 2564; Lawrence, 549 U.S. at 336. Further,

Jones has not shown that he acted with reasonable diligence in

attempting to file his habeas petition during the period he seeks

to toll. 

Respondent’s motion to dismiss the petition for writ of habeas

corpus as time-barred under 28 U.S.C. § 2244(d) is granted.

 SIGNED August 15, 2013.

____________________________

TERRY R. MEANS

UNITED STATES DISTRICT JUDGE

27

Case 4:05-cv-00638-Y Document 101 Filed 08/15/13 Page 27 of 27 PageID 1132