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 STEPHENS, Director, §

Texas Department of Criminal § (death-penalty case)

Justice, Correctional §

Institutions Division, § 

Respondent. §

MEMORANDUM OPINION AND ORDER GRANTING PETITIONER’S MOTION TO 

ALTER OR AMEND THE JUDGMENT UNDER FED. R. CIV. P. 59(e)

Petitioner Quintin Phillippe Jones has moved to alter or amend

the Court’s judgment on remand dismissing his petition for a writ

of habeas corpus. Motion to Alter or Amend [doc. 103]; Memorandum

Opinion and Order [doc. 101]. Among other things, Jones’s motion

asserts for the first time that the Court’s 2005 order appointing

his federal habeas counsel satisfies the “extraordinary circumstances”

requirement for equitable tolling because the order undertook to

protect Jones’s right to a timely filed petition.1 Respondent contends that this new argument may not be raised in a 59(e) motion and

that, in any case, the appointment order does not provide the extraordinary circumstances necessary for equitable tolling. Respondent

argues that the order is directed to “Petitioner” and not to counsel

1

After appointing Jack Strickland for the purpose of “preparing, filing and

litigating” a petition for writ of habeas corpus, the appointment order states,

“It is further ordered that Petitioner shall timely file his federal petition for

writ of habeas corpus. The petition shall demonstrate that it is timely filed

under 28 U.S.C. § 2244(d)(1).” Order [doc. 7](“Appointment Order”).

 

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alone, that it simply restates what is already required by statute,

and that it did not prevent Jones from timely filing his petition.

I.

Upon careful reconsideration, the Court concludes that Jones’s

motion should be granted and that Respondent’s motion to dismiss the

petition as time-barred should be denied. The Court does not reach

these conclusions lightly. 

Equitable tolling requires Jones to show both that (1) he has

been pursuing his rights diligently, and (2) some extraordinary

circumstances stood in his way and prevented a timely filing. See

Holland v. Florida, 560 U.S. 631(2010). The appointment order changes

the analysis of both of these requirements.

A.

The 2005 appointment order, together with the following facts,

satisfy the diligence requirement. Seven days after the Court

received this case on Strickland’s motion to appoint counsel, Jones

wrote a letter asking the Court not to appoint Strickland based, among

other things, on the breakdown in communications between them during

state habeas proceedings. Pro Se Motion to Appoint Counsel [doc.

5]. Jones also wrote to Strickland, asking him not to “get appointed”

in federal court.2

 Ex. S.3 Nevertheless, the Court appointed Strick2

 To clarify, Strickland did not seek to have himself appointed in this

Court. Texas law simply requires state counsel to file the motion once state

habeas relief has been denied. See Tex. Code Crim. Proc. Ann. art. 11.071, §

2(e) (West 2009).

3 Exhibits cited are attached to Jones’s Post-Holland Brief [doc. 86].

2

 

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land because of his familiarity with the case and issued the appointment order instructing that “Petitioner” timely file the petition

and that the petition demonstrate its timeliness. 

Jones then filed a pro-se motion to remove Strickland and appoint

different counsel, alleging that Strickland’s failure (1) to timely

file the state writ application and (2) to investigate and present

certain mitigation-related claims, showed that Strickland “will not

represent Petitioner in a competent much less professional manner.” 

Applicant’s Pro Se Motion for the Appointment of Different Counsel

at 2 [doc. 9] (“Motion to Substitute Counsel”). Jones also wrote

to Strickland, asking him to step down as counsel. Ex. U. Strickland’s response asserted (among other things) that the late filing

was excused by the state court for good cause and that it was not

found to be a result of a conscious disregard of professional responsibilities. Strickland also noted that he had advised the federal

magistrate that he did not wish to be appointed in this proceeding. 

Response from Petitioner’s Counsel to Pro Se Motion for Appointment

of Counsel at 5-6 [doc. 13]. 

In a second pro-se motion, Jones sought, in the alternative,

to have co-counsel appointed in the case. Applicant’s Second Pro

Se Motion for the Appointment of Different Counsel at 5 [doc. 14].

The Court denied both of the pro-se requests. Order Denying Pro Se

Motion for Appointment of Counsel [doc. 17]. Both Jones and Strickland apparently acquiesced to this ruling. See Ex. V, Y. Strickland

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then filed the petition about six months later, after the statute

of limitations deadline had passed. Petition [doc. 19]. 

The correctness of the ruling on Jones’s pro-se motions is not

before this Court.4 Nevertheless, it is difficult to overlook the

fact that Jones’s concerns about Strickland’s ability to provide

“competent” and “professional” representation proved in retrospect

to be justified. Even if he could not have known that Strickland

would miss the filing deadline, Jones had taken multiple, timely steps

toward ensuring competent habeas representation. Furthermore, the

appointment order addressing the timeliness of the petition could

reasonably have caused Jones to relax his vigilance regarding the

exact filing deadline, as well as his obligation to make sure

Strickland met it. In sum, Jones’s independent efforts to avoid,

to remove, and then to provide co-counsel for Strickland, all of which

occurred during the period he seeks to toll, together with the

appointment order, show that Jones exercised reasonable diligence

in the pursuit of his federal habeas rights. See Holland, 130 S.

Ct. at 2565 (holding that, in addition to other factors, Holland’s

efforts to remove counsel, “the central impediment to the pursuit

of his legal remedy,” constituted reasonable diligence).

4 In this regard, the Court notes that the Supreme Court has since established an "interests of justice" standard for the substitution of counsel in

death-penalty cases. See Martel v. Clair, 132 S. Ct. 1276 (2012). 

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B.

The Court also concludes that the 2005 appointment order, when

considered with the other circumstances in this case, satisfies the

extraordinary-circumstances requirement. Jones makes many allegations

of unprofessionalism against Strickland, but he does not dispute that

what actually prevented a timely filing was Strickland’s negligent

miscalculation of the deadline.5

 Such a “garden variety” claim of

excusable neglect does not warrant equitable tolling. See Holland,

560 U.S. at 651-52; Lawrence v. Florida, 549 U.S. 327, 336-37 (2007). 

This rule is premised on the rationale that mistakes of counsel are

constructively attributable to the client, at least in the postconviction context, because the attorney is acting as the petitioner’s

agent. Holland, 560 U.S. at 656 (Alito, J., concurring); Coleman

v. Thompson, 501 U.S. 722, 753-54(1991) (citing Link v. Wabash R.R.

Co., 370 U.S. 626 (1962)). 

5 By way of further explanation, Jones’s first state habeas counsel, Wes

Ball, was appointed on May 17, 2002, but filed nothing. On December 3, 2003,

Ball was removed and Strickland was appointed in his place. Strickland was given

270 days to file a writ application, during which time the Supreme Court denied

certiorari from the direct appeal and the limitations period began to run. See

28 U.S.C. § 2244(d). By the time Strickland’s state application was filed, which

tolled the limitations period, 149 days had elapsed. This is the exact number

of days late that Strickland’s federal petition was filed. 

In the usual case, Texas inmates must file the state application no later

than 180 days after appointment of habeas counsel or 45 days after the State’s

direct appeal brief is filed, whichever date is later, and one 90-day extension

is permitted. See Tex. Code Crim. Proc. Ann. art. 11.071, § 4 (West 1995). 

Because of this, the federal limitations period is often tolled by an existing

application on the very day the direct appeal becomes final and the limitations

period would otherwise begin. Thus, it is commonly the case that no portion of

the limitations period has elapsed before the filing of a state application. 

Strickland’s calculation of the deadline in this case was consistent with these

common circumstances. 

5

 

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Here, there was simple negligence that might normally be

controlled by Lawrence. Upon further consideration, however, the

Court concludes that the Lawrence rule should not be applied because

the negligence occurred during the course of a mutually undesired

attorney-client relationship that had broken down. To be sure, the

friction between Jones and Strickland mainly concerned Strickland’s

refusal to pursue what he believed to be frivolous Atkins and Wiggins

claims, claims upon which Jones has no right to insist. See Jones

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

defendant has no constitutional right to compel appointed counsel

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

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

the friction also concerned, albeit to a lesser extent, Strickland’s

inability to meet a state filing deadline, something Jones has a right

to insist upon. Motion to Substitute Counsel at 1-2 [doc. 9]. The

Court concludes that equity should not compel a mutually undesired

agency relationship that, in the end, proved entirely fruitless for

the client, who had made diligent efforts to avoid it in the first

place. Cf. Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P’ship,

507 U.S. 380, 396-97 (1993)(holding that dismissal of claim because

of counsel’s late filing in bankruptcy case does not impose an unjust

penalty on the client who “voluntarily chooses” his attorney); Link,

370 U.S. 626, 633-34 (1962) (Harlan, J.)(holding that client in

personal injury action cannot avoid the consequences of the acts or

6

 

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omissions of his “freely selected” lawyer-agent); see also Crutcher

v. Aetna Life Ins. Co., 746 F.2d 1076, 1083 (5th Cir. 1984) (denying

relief for attorney incompetence where client voluntarily chose his

attorney because this voluntary choice is “at the heart of our

representative litigation process”); Lucas v. Abbott Labs., No.

3:12cv3654-B, 2013 WL 2905488, *7 (N.D. Tex. June 13, 2013) (holding

that plaintiffs “voluntarily chose” their attorney and cannot avoid

the consequences of the acts or omissions of this freely selected

agent).

This is not to say that capital habeas petitioners may have the

appointed counsel of their choosing or can dictate the claims to be

raised by counsel, but simply acknowledges that the agency rule that

makes a client responsible for his lawyer’s acts or omissions is

founded on, at least, a voluntary relationship. The record is

abundantly clear that, while they acquiesced to this Court’s orders,

Jones and Strickland had both taken affirmative steps to avoid Strickland’s appointment in federal court. Strickland’s failure to reply

to Respondent’s motion to dismiss and his failure to appeal the

Court’s first dismissal order, while they occurred after the filing

of the petition, demonstrate just how broken the relationship

continued to be, even after appointment. Strickland had given his

“whole-hearted” approval to another attorney to speak to Jones and

pick up the reigns of this case. Strickland’s 2008 Letter to the

Court [doc. 33]. 

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Assuming Lawrence does not control, the granting of equitable

tolling still would require extraordinary circumstances to have 

prevented Jones from timely exercising his rights. Respondent points

out that the 2005 appointment order did not “prevent” Jones from

filing his petition or mislead him about the due date; it merely

ordered what was already required by statute. Respondent is correct. 

This case is not like previous cases that allowed equitable tolling

due to reliance on a court order that misleads or provides incorrect

information. E.g., Prieto v. Quarterman, 456 F.3d 511, 514-15 (5th

Cir. 2006)(allowing for equitable tolling in death penalty case where

court order granting extension of time ordered petitioner to file

his petition well after the statutory deadline); Cousin v. Lensing,

310 F.3d 843, 848 (5th Cir. 2002)(holding that extraordinary

circumstances have been found where petitioner is misled by an

affirmative but incorrect representation of a district court on which

he relies to his detriment); United States v. Patterson, 211 F.3d

927, 932 (5th Cir. 2000)(allowing equitable tolling where court order

granted, on the last day of the limitations period, pro-se request

to dismiss petition without prejudice and permitted later refiling);

see also Pliler v. Ford, 542 U.S. 225, 232 (2004) (acknowledging that

procedural instructions from a court regarding abeyance or dismissal

can “run the risk of being misleading”); Spottsville v. Terry, 476

F.3d 1241, 1245-46 (11th Cir. 2007)(allowing equitable tolling where

appeal from state habeas proceeding was done incorrectly but in

8

 

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accordance with instructions in federal habeas court’s order of

abeyance). But as the Court has already observed, the appointment

order reasonably could have caused (and probably did cause) Jones

to relax his vigilance as to the filing deadline. In the unusual

circumstances of this case, where petitioner anticipated he would

receive “incompetent” representation and his timely requests to avoid

it were denied in an order that attempts to address his concerns about

competence and timeliness, the Court concludes that is enough. A

stricter interpretation of the meaning of “prevent” would not be in

keeping with the spirit of Holland, which similarly rejected as “too

rigid” a standard that would have required “bad faith, dishonesty,

divided loyalty, mental impairment or so forth on the lawyer’s part.” 

Holland, 560 U.S. at 634. 

Jones maintains, based on Ross v. Varano, 712 F.3d 784, 802-03

(3rd Cir. 2013), that Strickland exhibited “extreme neglect” in

“missed deadlines, overall failure to communicate, and inaccurate

and misleading assurances concerning the status of legal proceedings.” 

Motion at 4. The record does not support the allegations of misleading assurances concerning the “status” of legal proceedings or

an “overall” failure to communicate. Strickland’s untimely state

petition, filed thirty days late, did not cause the 149-day delay

in this Court, and Strickland timely communicated to Jones important

rulings as well as the federal deadline as he believed it to be. 

Counsel complied with the deadline, as he calculated it to be. For

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all of Jones’s allegations, there is no factual support to conclude

that any attorney action--other than Strickland’s negligence in

calculating the due date--caused the untimeliness of the petition.

Jones also contends he should be entitled to equitable tolling

due to his limited intellectual ability and education, poor mental

health, and limited resources while incarcerated. The record clearly

does not show that Jones’s mental status or incarceration status have

been “severe obstacles” preventing him from pursuing his rights. 

See Robertson v. Simpson, 624 F.3d 781, 785 (6th Cir. 2010)(recognizing that several courts of appeal have held that, for the mental

incapacity of a petitioner to warrant equitable tolling, petitioner

must demonstrate that the incompetence affected his or her ability

to file a timely habeas petition); see also Scott v. Johnson, 227

F.3d 260, 263 n.3 (5th Cir. 2000)(noting that inadequate prison law

library does not constitute a “rare and exceptional” circumstance

warranting equitable tolling). Jones’s own exhibits reflect the

opposite: Jones has written several letters to counsel asserting

legal claims and providing legal authority. He apparently filed a

grievance with the State Bar. He wrote letters to the state judge

and lodged pro-se filings and letters in this Court asserting his

federal habeas rights. The fact that Jones contends he had help with

some of these things shows only that he knows to ask for help; it

does not demonstrate that his allegedly poor mental health or the

conditions of incarceration prevented him from doing anything. See

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Blount v. Biter, No. SACV 12-865 VBF (AN), 2012 WL 3150943, *6 (C.D.

Cal. Aug. 1, 2012)(stating that for equitable-tolling purposes, petitioner’s assertion that he received help from his father amounts to

a concession that he, unlike many prisoners, was able to obtain legal

assistance from a source other than the prison law library).

The Court acknowledges the observation in Lawrence that it would

be perverse if providing prisoners with post-conviction counsel

deprived the states of the benefit of the AEDPA statute of limitations. Lawrence, 549 U.S. at 337. But the post-conviction representation provided here was unwanted by both the client and the attorney

alike. The Court also observes that the perfect storm of postconviction counsel in this case was likely not the sort of counsel

contemplated by the Supreme Court in Lawrence. Jones’s first

appointed state habeas counsel filed nothing and was terminated after

seventeen months. Failing to account for this unusual passage of

time, Strickland filed an untimely petition in this Court. And new

federal habeas counsel, appointed in 2008 to represent Jones for the

sole purpose of challenging the dismissal of his petition as timebarred, failed to bring the 2005 appointment order to this Court’s

attention until a post-judgment motion. 

The flexibility inherent in an equitable procedure allows this

Court to consider these unusual circumstances and to “meet new

situations that demand equitable intervention, and to accord all the

relief necessary to correct . . . particular injustices.” Holland,

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130 S. Ct. at 2563. The Supreme Court has recognized the need for

avoiding fast adherence to “more absolute legal rules, which if

strictly applied, threaten the ‘evils of archaic rigidity.’” See

Holland, 130 S. Ct. at 2563; Patterson, 211 F.3d at 931 (holding that

“we must be cautious not to apply the statute of limitations too

harshly”). So while Lawrence dictates the denial of equitable tolling

for a negligently miscalculated deadline, the application of this

absolute rule would impose archaic rigidity given the rare and

exceptional circumstances present in this case: the petitioner lodged

multiple, timely requests to avoid counsel’s appointment based, at

least in part, on concerns about counsel’s previous failure to meet

a state deadline, and the Court nevertheless forced the continuation

of a mutually undesired attorney-client relationship in an order that,

while not misleading or preventing Jones from doing anything, probably

caused Jones to relax his vigilance regarding the federal deadline. 

II.

The Court turns next to whether Rule 59(e) is the proper vehicle

for raising this new argument. Grounds for granting a Rule 59(e)

motion to alter or amend the judgment include (1) an intervening

change in controlling law; (2) the availability of new evidence not

previously available; or (3) the need to correct clear error or

prevent manifest injustice. See In re Benjamin Moore & Co., 318 F.3d

626, 629 (5th Cir. 2002). It is “an extraordinary remedy that should

be used sparingly,” but courts have a great deal of discretion in

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ruling on a 59(e) motion. Templet v. HydroChem Inc., 367 F.3d 473,

479 (5th Cir. 2004).

Respondent does not argue against manifest injustice. Citing

Templet, he argues only that Jones’s new argument could and should

have been presented before now. Templet, 367 F.3d at 478-79 (holding

that 59(e) is not the proper vehicle for rehashing evidence, legal

theories or arguments that could have been raised before judgment

was entered). Jones replies that, irrespective of whether the

argument should have been raised before, it may now be considered

to prevent manifest injustice. 

The Court agrees for several reasons. First, the grounds for

granting a 59(e) motion set out in Benjamin Moore are listed in the

alternative, such that an argument that does not satisfy ground (1)

or (2) could nevertheless satisfy the “manifest injustice” ground

in (3). Second, there is no general definition of manifest injustice;

it is a case-by-case decision based on equitable considerations. 

See Bender Square Partners v. Factory Mut. Ins. Co., No. 4:10cv4295,

2012 WL 1952265, *4 (S.D. Tex. May 30, 2012) (agreeing that manifest

injustice requires a fundamental flaw in the court’s decision that

without correction would lead to a result that is both inequitable

and not in line with applicable policy)(citations omitted). Third,

this Court is required to strike the proper balance between the need

for finality and the need to render a just decision on the basis of

“all the facts.” See Edward H. Bohlin Co. v. Banning Co., 6 F.3d

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350, 355 (5th Cir. 1993). Because the 2005 appointment order is an

indisputable fact that changes the equitable-tolling analysis, the

need to render a just decision outweighs the need for finality. 

Granting the 59(e) motion would prevent a manifest injustice, namely,

the denial of federal habeas review in a death-penalty case because

of the compounded errors of appointed counsel. Were this Court to

deny Jones the opportunity to have his habeas petition heard at this

point, he will have been subject to the errors of not one but three

post-conviction attorneys. Equity should not tolerate these results,

especially in a death-penalty case.

III.

Jones’s motion to alter or amend the judgment [doc. 103] is

granted. This Court’s judgment dismissing Jones’s habeas petition

[doc. 102] is vacated. The clerk is directed to reopen these proceedings effective the date of this order. Jones shall file an amended

petition not more than ninety days from the date of this order. 

Respondent shall answer the amended petition within sixty days of

the date the amended petition is filed. Jones shall file any reply

not more than thirty days after the date the answer is filed.

SIGNED February 6, 2014.

____________________________

TERRY R. MEANS

UNITED STATES DISTRICT JUDGE

TRM/ks:bb

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