Ernest Cadet v. State of Florida Department of Corrections ( 2017 )

Case: 12-14518 Date Filed: 02/24/2017 Page: 1 of 71
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14518
________________________
D.C. Docket No. 9:07-cv-80758-DTKH
ERNEST CADET,
Petitioner-Appellant,
versus
STATE OF FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 24, 2017)
ON PETITION FOR REHEARING
Before ED CARNES, Chief Judge, WILSON and FAY, Circuit Judges.
ED CARNES, Chief Judge:
Case: 12-14518 Date Filed: 02/24/2017 Page: 2 of 71
Ernest Cadet has filed a petition for rehearing en banc, which also serves
under our rules as a petition for rehearing before the panel. See 11th Cir. R. 35,
I.O.P. 2. At least until an order granting or denying the petition for rehearing en
banc is issued, a panel retains authority to modify its decision and opinion. Id. We
take advantage of the opportunity to clarify our decision in order to prevent any
misunderstanding of it. We grant the petition for rehearing to the panel to the
extent that we vacate our previous opinion, Cadet v. Fla. Dep’t of Corr., 742 F.3d
473 (11th Cir. 2014), and substitute in its place the following one.
I.
The Antiterrorism and Effective Death Penalty Act imposes a one-year
statute of limitations period for filing a federal habeas petition challenging a state
court judgment. 28 U.S.C. § 2244(d)(1). The limitations period is subject to
equitable tolling. Holland v. Florida, 560 U.S. 631, 645, 130 S. Ct. 2549, 2560
(2010). Defining the circumstances that justify equitable tolling of that limitations
period is a work in progress, the significant work on it having been done in three
Supreme Court decisions. See Maples v. Thomas, 565 U.S. 266, 132 S. Ct. 912
(2012); Holland, 560 U.S. 631, 130 S. Ct. 2549; Lawrence v. Florida, 549 U.S.
327, 127 S. Ct. 1079 (2007); see also Menominee Indian Tribe of Wisc. v. United
States, 577 U.S. __, 136 S. Ct. 750, 755–57 (2016); Christeson v. Roper, 574 U.S.
__, 135 S. Ct. 891 (2015) (discussing the Holland and Maples equitable tolling
2
Case: 12-14518 Date Filed: 02/24/2017 Page: 3 of 71
requirements). This case requires us to determine the current test for equitable
tolling of the § 2244(d) statute of limitations period, which requires interpreting
what the Supreme Court said about it in those decisions.
II.
In 2000, Ernest Cadet was convicted in Florida of battery and sexual battery
of the five-year-old daughter of a friend of his, crimes for which he was sentenced
to life imprisonment. His convictions were affirmed on direct appeal. See Cadet
v. State, 809 So. 2d 43 (Fla. 4th DCA 2002), cert. denied, 828 So. 2d 384 (Fla.
Sept. 23, 2002). The judgment of conviction became final 90 days later, on
December 23, 2002, when the time for seeking a writ of certiorari from the United
States Supreme Court expired. See McCloud v. Hooks, 560 F.3d 1223, 1227 (11th
Cir. 2009). On that same date, Cadet’s one-year statute of limitations for filing a
federal habeas petition began to run. See 28 U.S.C. § 2244(d)(1)(A).
On October 30, 2003 — 311 days after his convictions became final —
Cadet filed a pro se state habeas petition, which statutorily tolled the federal
limitations period until January 22, 2004, the date his state habeas proceedings
came to an end. See id. § 2244(d)(2) (“The time during which a properly filed
application for State post-conviction or other collateral review . . . is pending shall
not be counted toward any period of limitation under this subsection.”). Another
49 days of untolled time elapsed until Cadet, on March 11, 2004, filed a pro se
3
Case: 12-14518 Date Filed: 02/24/2017 Page: 4 of 71
motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850.
Before Cadet filed that motion, attorney Michael Goodman, who had represented
him on direct appeal, reviewed and edited it pro bono for Cadet. The Rule 3.850
motion suspended the running of the federal habeas limitations period but with
only five days of the period remaining.
After the State had received more than a year’s worth of extensions to
respond to Cadet’s state post-conviction motion, Goodman filed a notice of
appearance in the state trial court indicating that he would be representing Cadet
during the remainder of the Rule 3.850 proceedings. The state trial court later
denied Cadet’s Rule 3.850 motion, and a Florida district court of appeal affirmed
the denial on August 9, 2006. See Cadet v. State, 935 So. 2d 14 (Fla. 4th DCA
2006) (table decision). That court’s mandate issued on August 25, 2006, restarting
the running of the federal limitations period and giving Cadet until August 30,
2006, just five more days, to file a § 2254 petition. See Nyland v. Moore, 216 F.3d
1264, 1267 (11th Cir. 2000) (holding that a Florida post-conviction motion remains
pending until the appellate court’s mandate issues).
During the pendency of the Rule 3.850 proceedings, Goodman and Cadet
had at least five discussions about the limitations period for filing a federal habeas
petition. In at least some of those discussions, based on what his fellow prisoners
had said to him, Cadet told Goodman that he did not think that they had “much
4
Case: 12-14518 Date Filed: 02/24/2017 Page: 5 of 71
time” left to file a § 2254 petition. In response, Goodman mistakenly and
repeatedly assured Cadet that they had one year from the resolution of his state
post-conviction motion to file a federal petition. Goodman based those assurances
on his own misreading of § 2244(d)(1). Reading the statutory provision is all that
Goodman did to determine how to calculate the running of the limitations period.
He did not research the matter.
After the state court of appeal’s decision affirming the denial of his
Rule 3.850 motion but before the mandate issued, Cadet became increasingly
anxious about the federal limitations period and insisted that Goodman file a
§ 2254 petition “right away.” Goodman reassured Cadet that he had one year from
the end of his Rule 3.850 appeal to file a federal petition. Cadet “forcefully but
respectfully” disagreed with Goodman’s calculation of the filing deadline,
explaining that “jailhouse lawyers” had advised him that he did not have much
time left to a file a § 2254 petition and repeatedly asking Goodman, “Are you sure?
Are you sure?” The jailhouse lawyers had not calculated a precise deadline for
Cadet, and he believed that he had a few weeks left to file a § 2254 petition when
he actually had only five days left after the mandate issued. Again, Goodman
assured Cadet that there was ample time to file a federal habeas petition,
rhetorically asking him, “who are you going to believe, the real lawyer or the
jailhouse lawyer?” The majority of the conversations between Cadet and
5
Case: 12-14518 Date Filed: 02/24/2017 Page: 6 of 71
Goodman about the statute of limitations period occurred before the period ran out
on August 30, 2006.
Goodman eventually put his advice in writing in a letter to Cadet dated
September 29, 2006, one month after the limitations period had run out.
Goodman’s letter, to which he attached copies of § 2244(d) and the Florida
appellate court decision in Cadet’s Rule 3.850 case, asserted: “As you[ ] can see
you have one year after the denial of your appeal to file for Habeas relief.” Cadet
eventually accepted that advice because Goodman, unlike the jailhouse lawyers,
was a real lawyer.
Goodman ultimately filed a § 2254 petition on Cadet’s behalf on August 23,
2007. That would have been timely with two days to spare had Goodman’s
understanding of the statute of limitations been correct. But because his
understanding was incorrect, the filing was almost a full year late; the limitations
period had expired on August 30, 2006. Cadet was ordered to show cause why his
federal habeas petition should not be dismissed as untimely. Goodman responded
that the petition was timely because it had been filed within one year of the
issuance of the mandate by the Florida appellate court in the appeal from the denial
of the state post-conviction motion. The State replied that the petition was
untimely and explained why. That prompted Goodman to conduct some research,
realize his mistake, and feel “horrendous.”
6
Case: 12-14518 Date Filed: 02/24/2017 Page: 7 of 71
Now conceding the untimeliness of the § 2254 petition, Goodman argued for
equitable tolling of the federal limitations period based on the fact that he had
miscalculated the filing deadline and repeatedly assured Cadet that it did not begin
to run until after the denial of his state post-conviction motion. Goodman was later
discharged as counsel and a federal public defender was appointed to represent
Cadet.
After an evidentiary hearing, a magistrate judge recommended that the
district court conclude that equitable tolling applied, which would save Cadet’s
petition from being dismissed as untimely. The magistrate judge found that Cadet
had exercised due diligence in his efforts to timely file a § 2254 petition in light of
the “undisputed facts” that he “repeatedly argued with Goodman about his
calculation of the deadline and [he had insisted] that the petition be filed
immediately.” The magistrate judge also concluded that while Goodman’s initial
misreading of the statute of limitations was “simple attorney error” that did not
warrant equitable tolling, his failure to investigate further when confronted with
Cadet’s doubts and his “hollow assurances” to Cadet that his calculation was
correct amounted to “constructive abandonment,” an extraordinary circumstance
sufficient to merit relief.
The State objected to the magistrate judge’s report and recommendation,
contending that Goodman had not constructively abandoned Cadet because he had
7
Case: 12-14518 Date Filed: 02/24/2017 Page: 8 of 71
maintained regular contact with Cadet, had responded to his concerns about the
filing deadline, and had not deliberately deceived him. The district court sustained
the State’s objections and dismissed Cadet’s § 2254 petition as time-barred. While
adopting the magistrate judge’s factual findings and his legal conclusion that Cadet
had exercised due diligence in pursuing his rights, the district court nevertheless
determined that Goodman’s conduct did not constitute an extraordinary
circumstance sufficient to warrant equitable tolling because it was not “so
egregious as to amount to an effective abandonment of the attorney-client
relationship.” The court reasoned that “counsel’s error in failing to correctly
calculate the deadline for filing the habeas petition” constituted an act of
negligence “during the attorney-client relationship,” not a constructive
abandonment of that relationship.
Cadet appealed the dismissal of his federal habeas petition, and we granted
him a certificate of appealability on the sole issue of “[w]hether the district court
improperly determined that [his] 28 U.S.C. § 2254 habeas petition was time-
barred, based on its finding that he was not entitled to equitable tolling.”
III.
We review a district court’s factual findings only for clear error, but that
does not matter here because there are no disputed facts. We review de novo the
court’s application of equitable tolling law to the facts. See Steed v. Head, 219
8
Case: 12-14518 Date Filed: 02/24/2017 Page: 9 of 71
F.3d 1298, 1300 (11th Cir. 2000). In doing so, we keep in mind that equitable
tolling is an extraordinary remedy “limited to rare and exceptional circumstances
and typically applied sparingly.” Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir.
2009) (quotation marks omitted). To warrant that extraordinary remedy, a
petitioner must demonstrate “(1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way and prevented timely
filing.” Holland, 560 U.S. at 649, 130 S. Ct. at 2562 (quotation marks omitted).
The State does not contest the district court’s determination that Cadet
diligently pursued his rights, given his repeated questioning of counsel’s
calculation of the § 2254 deadline and his insistence that the petition be timely
filed. We do not question that determination either. See id. at 653, 130 S. Ct. at
2565 (“The diligence required for equitable tolling purposes is reasonable
diligence, not maximum feasible diligence.”) (citations and quotation marks
omitted); Downs v. McNeil, 520 F.3d 1311, 1323 (11th Cir. 2008) (concluding that
petitioner’s allegations, if true, showed that he had exercised reasonable diligence
by writing multiple letters to counsel “to express concern over the running of the
AEDPA filing period and to urge the filing of his federal habeas petition”). The
dispositive question, then, is whether Goodman’s actions in failing to timely file a
§ 2254 petition constitute an “extraordinary circumstance” for purposes of
equitable tolling. To answer that question, we must first address the appropriate
9
Case: 12-14518 Date Filed: 02/24/2017 Page: 10 of 71
standard for gauging when attorney error amounts to an extraordinary
circumstance. There are three Supreme Court decisions addressing that standard.
A.
The first decision, Lawrence, squarely holds that an attorney’s mistake in
calculating the statute of limitations period, even when caused by the failure to do
rudimentary legal research, does not justify equitable tolling. Lawrence, 549 U.S.
at 336–37, 127 S. Ct. at 1085. The attorney’s blunder in that case was based on his
uninformed belief that the limitations period was statutorily tolled under 28 U.S.C.
§ 2244(d)(2) during the pendency in the Supreme Court of a certiorari petition to
review the state courts’ denial of state collateral relief. See id. The attorney
obviously did not do even rudimentary legal research (such as a Westlaw search of
circuit decisions discussing the statutory tolling provision); if he had, he could
have learned with less than five minutes of effort that “[t]hen-applicable Eleventh
Circuit precedent foreclosed any argument that § 2244’s statute of limitations was
tolled by the pendency of a petition for certiorari seeking review of a state
postconviction proceeding.” See id. at 331, 127 S. Ct. at 1082; see also Coates v.
Byrd, 211 F.3d 1225, 1227 (11th Cir. 2000). Not only that, but with a few minutes
more research the attorney could have also discovered that “every other Circuit to
address the issue agreed that the limitations period was not tolled by certiorari
petitions.” Lawrence, 549 U.S. at 336, 127 S. Ct. at 1085. Because the attorney
10
Case: 12-14518 Date Filed: 02/24/2017 Page: 11 of 71
did not perform any legal research, he was ignorant of what the Court
characterized as “[t]he settled state of the law at the relevant time,” id., and missed
the filing deadline.
The Supreme Court explained that if credited, Lawrence’s argument that his
attorney’s mistake in miscalculating the limitations period entitled him to equitable
tolling “would essentially equitably toll limitations periods for every person whose
attorney missed a deadline.” Id. Recognizing that would never do, the Court
unequivocally held that: “Attorney miscalculation is simply not sufficient to
warrant equitable tolling, particularly in the postconviction context where prisoners
have no constitutional right to counsel.” Id. at 336–37, 127 S. Ct. at 1085. In the
decade since the Lawrence decision was issued, that holding has never been
questioned. It has, instead, been reiterated by the Supreme Court. See Menominee
Indian Tribe, 136 S. Ct. at 757 (citing Lawrence for the proposition that “a simple
‘miscalculation’ that leads a lawyer to miss a filing deadline” does not justify
equitable tolling) (quotation marks omitted); Holland, 560 U.S. at 651–52, 130
S. Ct. at 2564 (same); see also Maples, 565 U.S. at 282, 132 S. Ct. at 923 (“[A]n
attorney’s negligence, for example, miscalculating a filing deadline, does not
provide a basis for tolling a statutory time limit.”); cf. id. at 280–81, 132 S. Ct. at
922 (“Negligence on the part of a prisoner’s postconviction attorney does not
qualify as ‘cause’ [for excusing a procedural default relating to a filing
11
Case: 12-14518 Date Filed: 02/24/2017 Page: 12 of 71
deadline]. . . . because the attorney is the prisoner’s agent, and under well-settled
principles of agency law, the principal bears the risk of negligent conduct on the
part of his agent.”) (citation and quotation marks omitted); Coleman v. Thompson,
501 U.S. 722, 753, 111 S. Ct. 2546, 2566–67 (1991) (“Attorney ignorance or
inadvertence is not ‘cause’ [for excusing a procedural default relating to a filing
deadline] because the attorney is the petitioner’s agent when acting, or failing to
act, in furtherance of the litigation, and the petitioner must bear the risk of attorney
error.”) (quotation marks omitted).
B.
The second Supreme Court decision addressing the standard for equitable
tolling of the § 2244(d) statute of limitations, Holland v. Florida, rejected as “too
rigid” this circuit’s rule that even attorney conduct that is “grossly negligent”
cannot justify equitable tolling of AEDPA’s limitations period absent proof of “bad
faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer’s
part.” 560 U.S. at 649, 130 S. Ct. at 2562–63 (quoting Holland v. Florida, 539
F.3d 1334, 1339 (11th Cir. 2008)). The Court acknowledged that, under its own
precedent, a petitioner ordinarily “must bear the risk of attorney error” and that a
“garden variety claim of attorney negligence,” such as a “simple miscalculation
that leads a lawyer to miss a filing deadline, does not warrant equitable tolling.”
Id. at 650–52, 130 S. Ct. at 2563–64 (citation and quotation marks omitted). It
12
Case: 12-14518 Date Filed: 02/24/2017 Page: 13 of 71
nevertheless held that, “at least sometimes, professional misconduct that fails to
meet the Eleventh Circuit’s standard could nonetheless amount to egregious
behavior and create an extraordinary circumstance that warrants equitable tolling.”
Id. at 651, 130 S. Ct. at 2563 (emphasis added).
The Supreme Court implied, but did not definitively hold, that counsel’s
conduct in the Holland case may have constituted an extraordinary circumstance
because it involved “far more than ‘garden variety’ or ‘excusable neglect.’” Id. at
652, 130 S. Ct. at 2564. The Court explained that, while counsel’s failure to timely
file a § 2254 petition and apparent ignorance of the correct filing deadline
“suggest[ed] simple negligence,” there were four facts in Holland’s case that might
lead to the conclusion that counsel’s conduct “amounted to more” than negligence:
(1) counsel’s failure to file the petition on time “despite Holland’s many letters that
repeatedly emphasized the importance of his doing so”; (2) counsel’s failure to “do
the research necessary to find out the proper filing date, despite Holland’s letters
that went so far as to identify the applicable legal rules”; (3) counsel’s failure to
inform Holland that the Florida Supreme Court had affirmed the denial of his state
post-conviction motion, “again despite Holland’s many pleas for that information”;
and (4) counsel’s failure to communicate with Holland during the two-and-a-half
year period in which his state motion was pending before the Florida Supreme
Court, “despite various pleas from Holland that [counsel] respond to his letters.”
13
Case: 12-14518 Date Filed: 02/24/2017 Page: 14 of 71
Id. at 652, 130 S. Ct. at 2564; see also id. at 636–38, 130 S. Ct. at 2555–56. The
first one of those four factors is present in this case and the second one arguably
is,1 but the last two factors are not.
And there was another critical fact in Holland that is not present in this case.
During his state post-conviction proceedings, Holland had unsuccessfully sought to
discharge his attorney, complaining to the Florida Supreme Court that there had
been “a complete breakdown in communication,” that counsel had “not kept him
updated on the status of his capital case,” and that counsel had “abandoned” him.
Id. at 637, 130 S. Ct. at 2555 (quotation marks and alterations omitted). The state
supreme court had denied Holland’s attempts to get rid of his attorney. See id. at
637, 130 S. Ct. at 2556. Even with all of that, including the “serious instances of
attorney misconduct,” the United States Supreme Court declined to state its
“conclusion in absolute form,” and remanded for a determination of whether the
circumstances involved in that case “indeed constitute extraordinary circumstances
sufficient to warrant equitable relief.” Id. at 652–54, 130 S. Ct. at 2564–65. The
holding of the Holland decision is that attorney misconduct sufficiently egregious
and extraordinary to justify equitable tolling is not limited to “bad faith,
dishonesty, divided loyalty, mental impairment or so forth on the lawyer’s part.”
1
Although he repeatedly expressed his concern to Goodman that there was less time left
than Goodman thought, Cadet never “went so far as to identify the applicable legal rules,”
Holland, 560 U.S. at 652, 130 S. Ct. at 2564, to Goodman.
14
Case: 12-14518 Date Filed: 02/24/2017 Page: 15 of 71
Id. at 649, 130 S. Ct. at 2562–63. The Court did not hold that an attorney’s gross
negligence alone would justify tolling or even whether the facts in that case, which
went beyond gross negligence, entitled Holland to equitable holding. See id. at
654, 130 S. Ct. at 2565 (“[W]e leave it to the Court of Appeals to determine
whether the facts in this record entitle Holland to equitable tolling, or whether
further proceedings, including an evidentiary hearing, might indicate that
respondent [the State] should prevail.”).
In his concurring opinion in Holland, which set the template for the Supreme
Court’s later decision in Maples, Justice Alito agreed with the majority that
Holland had alleged “certain facts that go well beyond any form of attorney
negligence” and that the standard we had applied in the case was too limited, but
he criticized the majority opinion because it “does not do enough to explain the
right standard” for determining when attorney misconduct rises to the level of an
extraordinary circumstance. Id. at 654–55, 130 S. Ct. at 2566 (Alito, J.,
concurring).
Justice Alito set out his views about the right standard for attorney error and
misconduct tolling issues. He pointed out that earlier decisions, in particular
Lawrence, “make it abundantly clear that attorney negligence is not an
extraordinary circumstance warranting equitable tolling.” Id. at 655–56, 130 S. Ct.
at 2566 (citing Lawrence, 549 U.S. at 336, 127 S. Ct. at 1085). As we have
15
Case: 12-14518 Date Filed: 02/24/2017 Page: 16 of 71
explained, that decision held that attorney miscalculation of a filing deadline “is
simply not sufficient to warrant equitable tolling, particularly in the postconviction
context where prisoners have no constitutional right to counsel.” Id. at 655–56,
130 S. Ct. at 2566 (quoting Lawrence, 549 U.S. at 336–37, 127 S. Ct. at 1085)
(emphasis omitted). Justice Alito explained that any distinction between ordinary
and gross negligence would be “impractical,” “highly artificial,” and “hard to
administer.” Id. at 658, 130 S. Ct. at 2567. Instead, the relevant distinction should
be between all forms of attorney negligence, “however styled,” which would be
“constructively attributable to the client,” and “attorney misconduct that is not
constructively attributable to the petitioner” because counsel had “essentially
abandoned” the client. Id. at 657, 659, 130 S. Ct. at 2567–68 (quotation marks
omitted). In his view, the petitioner in Holland might be entitled to equitable
tolling, not because his attorney had acted with gross negligence, but because
counsel had effectively abandoned him, “as evidenced by counsel’s near-total
failure to communicate with petitioner or to respond to petitioner’s many inquiries
and requests over a period of several years.” Id. at 659, 130 S. Ct. at 2568.
“Common sense,” Justice Alito concluded, “dictates that a litigant cannot be held
constructively responsible for the conduct of an attorney who is not operating as
his agent in any meaningful sense of that word.” Id.
16
Case: 12-14518 Date Filed: 02/24/2017 Page: 17 of 71
C.
Two years later in Maples v. Thomas, the Supreme Court revisited the
question of when attorney misconduct might rise to the level of “extraordinary
circumstances beyond [a petitioner’s] control,” albeit in the context of what it takes
to establish cause to excuse a state procedural bar to federal habeas relief. 565
U.S. at 283, 132 S. Ct. at 924 (quotation marks omitted). The petitioner in Maples
was an Alabama death-row inmate who had been represented in post-conviction
proceedings by two pro bono attorneys from a New York law firm and a local
attorney recruited for the sole purpose of allowing the out-of-state attorneys to be
admitted pro hac vice. Id. at 274–75, 132 S. Ct. at 918–19. While Maples’ state
post-conviction petition was pending, the two New York attorneys left their firm
for positions that made them ineligible to continue to represent him. Id. at 275,
283–84, 132 S. Ct. at 919, 924. Neither attorney notified Maples of their departure
and resulting inability to represent him. Id. at 275, 132 S. Ct. at 919. And neither
of them asked the state trial court for leave to withdraw or moved for substitution
of counsel. See id. They absconded from the case and deserted their client.
Without the assistance of his listed attorneys of record, Maples did not receive
timely notice of the denial of his state post-conviction petition and, as a result,
failed to timely appeal that ruling, which led to the procedural default of his claims
in federal court. Id. at 275–79, 132 S. Ct. at 919–21.
17
Case: 12-14518 Date Filed: 02/24/2017 Page: 18 of 71
In its discussion in Maples, the Supreme Court reaffirmed the general rule
that, “under well-settled principles of agency law,” a petitioner “bears the risk of
negligent conduct on the part of his [attorney]” and, for that reason, is ordinarily
bound by counsel’s failure to meet a filing deadline. Id. at 280–81, 132 S. Ct. at
922 (quotation marks omitted). The Court held, however, that “[a] markedly
different situation is presented . . . when an attorney abandons his client without
notice” and thereby “sever[s] the principal-agent relationship,” at which point
counsel’s “acts or omissions . . . cannot fairly be attributed to [the client].” Id. at
281, 132 S. Ct. at 922–23 (quotation marks omitted) (final alteration in original).
The Maples Court agreed with, and adopted, Justice Alito’s view that “under
agency principles, a client cannot be charged with the acts or omissions of an
attorney who has abandoned him,” and emphasized that Justice Alito’s Holland
concurrence had “homed in on the essential difference between a claim of attorney
error, however egregious, and a claim that an attorney had essentially abandoned
his client.” Id. at 282–83, 132 S. Ct. at 923–24 (emphasis added). Underscoring
that “essential difference,” the Court also clarified that its Holland decision had
turned on counsel’s “abandonment” of his client, instead of on counsel’s egregious
errors, and it held that there was “no reason . . . why the distinction between
attorney negligence and attorney abandonment should not hold in both” the
18
Case: 12-14518 Date Filed: 02/24/2017 Page: 19 of 71
equitable tolling and procedural default contexts. Id. at 282 & n.7, 132 S. Ct. at
923 & n.7 (emphasis added).
Having laid down the doctrinal framework for determining when attorney
error is not constructively attributable to a petitioner, the Supreme Court then
analyzed “whether Maples ha[d] shown that his attorneys of record abandoned
him, thereby supplying the ‘extraordinary circumstances beyond his control’
necessary to lift the state procedural bar to his federal petition.” Id. at 283, 132
S. Ct. at 924 (citation omitted); see also Menominee Indian Tribe, 136 S. Ct. at 756
(“We therefore reaffirm that the second prong of the equitable tolling test is met
only where the circumstances that caused a litigant’s delay are both extraordinary
and beyond [the litigant’s] control.”) (footnote omitted). The Court concluded that
counsel had abandoned Maples because, as a matter of both common sense and
agency law principles, he was effectively “left without any functioning attorney of
record” and “had been reduced to pro se status.” Maples, 565 U.S. at 288–89, 132
S. Ct. at 927.
D.
Cadet’s circumstances are different. He did act with reasonable diligence,
but the reasonable diligence and extraordinary circumstance requirements are not
blended factors; they are separate elements, both of which must be met before
there can be any equitable tolling. Menominee Indian Tribe, 136 S. Ct. at 756, 757
19
Case: 12-14518 Date Filed: 02/24/2017 Page: 20 of 71
n.5. We assume for present purposes that attorney Goodman’s sincere but
persistent misreading of § 2244(d) after his client expressed doubt amounted to
gross negligence. The resulting question is whether attorney error that amounts to
gross negligence standing alone is a sufficiently extraordinary circumstance for
equitable tolling purposes, or whether the attorney’s negligent error must amount
to or be accompanied by some other factor such as, to name one example,
abandonment of the attorney-client relationship.
Even though the Supreme Court in Holland expressly declined to decide
whether Holland himself was entitled to equitable tolling, 560 U.S. at 653–54, 130
S. Ct. at 2565, and that case involved more than attorney negligence of any degree,
see id. at 651–52, 130 S. Ct. at 2564, the dissent in this case reads the majority
opinion in Holland to mean that an attorney’s gross negligence alone may warrant
equitable tolling. See Dissenting Opn. at 50–53, 63. In the Holland opinion itself,
however, the Court pointed out that the attorney had essentially abandoned
Holland. See, e.g., 560 U.S. at 637–38, 130 S. Ct. at 2555–56 (noting the
attorney’s failure to inform Holland of the Florida Supreme Court’s decision
“despite Holland’s many pleas for that information” and the attorney’s failure to
communicate with him during the two-and-a-half year period in which his state
motion was pending in the Florida Supreme Court); see also id. at 635–38, 130
S. Ct. at 2554–56 (describing those facts).
20
Case: 12-14518 Date Filed: 02/24/2017 Page: 21 of 71
In any event, the Holland opinion cannot be read by itself. It must be read in
light of the Court’s explanation of Holland eighteen months later in its Maples
decision. While Maples involved the issue of cause to excuse procedural default
instead of equitable tolling, the Court concluded that the difference does not
matter, that the key distinction between attorney negligence and attorney
abandonment applies in both contexts. See Maples, 565 U.S. at 282 n.7, 132 S. Ct.
at 923 n.7 (“We see no reason, however, why the distinction between attorney
negligence and attorney abandonment should not hold in both contexts.”).
The Court pointed out in Maples that the petitioner in Holland had “urged
that attorney negligence was not the gravamen of his complaint.” Maples, 565
U.S. at 282, 132 S. Ct. at 923. Abandonment was. Id. As the Court noted,
Holland had “asserted that his lawyer had detached himself from any trust
relationship with [him] . . . [and had] abandoned [him] . . . .” Id. (quotation marks
omitted). The Maples Court thereby characterized Holland as a case of attorney
abandonment, not one of gross negligence, emphasizing that it had involved
“counsel’s near-total failure to communicate with petitioner or to respond to
petitioner’s many inquiries and requests over a period of several years.” Id.
(quoting Holland, 560 U.S. at 659, 130 S. Ct. at 2568 (Alito, J., concurring)).
In the course of explaining its Holland decision, the Maples Court reached
back to Justice Alito’s concurring opinion in Holland, and adopted his distinction
21
Case: 12-14518 Date Filed: 02/24/2017 Page: 22 of 71
because the Court was convinced that he had “homed in on the essential difference
between a claim of attorney error, however egregious, and a claim that an attorney
had essentially abandoned his client.” Id. The Maples Court meant what it said
about the essential difference between egregious attorney error and the
abandonment that had occurred in Maples. “Essential difference” means “essential
difference.” And the phrase “attorney error, however egregious” means attorney
error however egregious an error it is, which encapsulates Justice Alito’s position
that gross error or gross negligence alone is not a basis for equitable tolling. We
follow Justice Kagan’s advice: “[A] good rule of thumb for reading [Supreme
Court] decisions is that what they say and what they mean are one and the same.”
Mathis v. United States, 579 U.S. __, 136 S. Ct. 2243, 2254 (2016). What the
Maples decision says is that Justice Alito got it right in Holland, that “attorney
error, however egregious,” is not enough for equitable tolling.
The dissent accuses us of using Maples in an attempt to overrule Holland’s
holding that gross negligence alone may be an extraordinary circumstance
warranting equitable tolling. Dissenting Opn. at 53–55. Of course, only the
Supreme Court can overrule its own decisions. See, e.g., Evans v. Sec’y, Fla.
Dep’t of Corr., 699 F.3d 1249, 1263 (11th Cir. 2012). But as we have already
explained, Holland did not hold what the dissent thinks it held. The Holland
decision held only that professional misconduct could amount to an extraordinary
22
Case: 12-14518 Date Filed: 02/24/2017 Page: 23 of 71
circumstance, and that Holland’s attorney’s misconduct, which extended beyond
negligence, may or may not have risen to that level. 560 U.S. at 651–52, 130
S. Ct. at 2563–65; see also id. at 654, 130 S. Ct. at 2565. In Maples the Court
construed and clarified its earlier Holland decision, explaining that while a
petitioner is bound by his attorney’s negligent mistakes, he is not bound by the
actions or inactions of an attorney occurring after the attorney has severed the
principle-agent relationship by abandoning his client. Maples, 565 U.S. at 280–81,
132 S. Ct. at 922–23. Nothing in Holland, especially as it was clarified in Maples,
is inconsistent with our holding that attorney negligence, even gross or egregious
negligence, does not by itself qualify as an “extraordinary circumstance” for
purposes of equitable tolling; either abandonment of the attorney-client
relationship, such as may have occurred in Holland, or some other professional
misconduct or some other extraordinary circumstance is required. 2
E.
The dissent argues that by not adopting a gross negligence standard, we run
afoul of Holland’s rejection of mechanical, per se rules in the equitable tolling
2
In an attempt to make our holding appear to be a mechanical rule, the dissenting opinion
quotes the first part of this sentence but leaves out the most important part, which comes after the
semi-colon. Dissenting Opn. at 52. That is the part where we make clear that abandonment, or
some other professional misconduct, or some other extraordinary circumstance can be sufficient
for equitable tolling. The dissenting opinion also fails to mention, much less deal with, our clear
statement that in addition to all of the bases for equitable tolling in the pre-Holland list there are
more, some of which will have to be identified as cases arise, but we know that abandonment is
not the only instance of it. See Part III.H of this opinion, below.
23
Case: 12-14518 Date Filed: 02/24/2017 Page: 24 of 71
context. Dissenting Opn. at 51–52; see Holland, 560 U.S. at 649–51, 130 S. Ct. at
2563 (explaining that equity demands “flexibility” and the avoidance of
“mechanical” and “rigid rules”) (quotation marks omitted). But given the range of
extraordinary circumstances that we recognize could justify equitable tolling, our
holding does not put in place a rigid or mechanical rule.
And the dissent’s argument overlooks the fact that the Supreme Court itself
has repeatedly blessed what, under the dissent’s view, would be a rigid or
mechanical per se rule. In Holland itself the Court reaffirmed its own “rigid” or
“mechanical” rule that simple or garden variety negligence alone can never warrant
equitable tolling. See 560 U.S. at 651–52, 130 S. Ct. at 2564; Maples, 565 U.S. at
282, 132 S. Ct. at 923 (“[T]he [Holland] Court recognized that an attorney’s
negligence, for example, miscalculating a filing deadline, does not provide a basis
for tolling a statutory time limit.”); see also Menominee Indian Tribe, 136 S. Ct. at
755 (rejecting the argument that, because two distinct elements must be satisfied,
the equitable tolling test is “overly rigid”). Our holding that gross negligence
alone is not enough is no more mechanical, rigid, or per se than the Supreme
Court’s often reiterated rule that simple negligence alone is never enough, a rule
that the dissent’s “no rule” approach would not permit. One might even say that it
is the dissent, with its rigid or mechanical rule position, that is attempting to
overrule Supreme Court precedent.
24
Case: 12-14518 Date Filed: 02/24/2017 Page: 25 of 71
And contrary to our colleague’s suggestion, nothing in our opinion
forecloses courts from engaging in “equitable, case-by-case” inquiries into whether
abandonment or any other extraordinary circumstance occurred, provided, of
course, that negligence or gross negligence is not treated as a sufficient
extraordinary circumstance all by itself. But the inquiry should not be a
standardless, by-the-seat-of-the-pants, length-of-the-chancellor’s-foot, purely
discretionary decision. We are guided in this respect by the Holland Court’s
statement that “given the long history of judicial application of equitable tolling,
courts can easily find precedents that can guide their judgments.” Holland, 560
U.S. at 651, 136 S. Ct. at 2563. The Court cited five federal courts of appeals’
decisions as examples. Id. at 651, 136 S. Ct. at 2564. This does not mean that
equitable tolling depends on the existence of a precedent with facts closely on
point, but it does mean that some extraordinary circumstance, professional
misconduct or otherwise, should be objectively identified. The standard is not
purely subjective. See generally Missouri v. Jenkins, 515 U.S. 70, 127, 115 S. Ct.
2038, 2068 (1995) (Thomas, J., concurring) (“Blackstone emphasized that courts
of equity must be governed by rules and precedents no less than the courts of law.
‘[I]f a court of equity were still at sea, and floated upon the occasional opinion
which the judge who happened to preside might entertain of conscience in every
particular case, the inconvenience that would arise from this uncertainty, would be
25
Case: 12-14518 Date Filed: 02/24/2017 Page: 26 of 71
a worse evil than any hardship that could follow from rules too strict and
inflexible.’”) (quoting 3 William Blackstone, Commentaries on the Laws of
England 436, 440 (1768)).
Applying the correct standard to this case in light of the bases for tolling
that Cadet has argued to us, our inquiry is whether Cadet in addition to showing
negligence “has shown that his attorney[ ] . . . abandoned him, thereby supplying
the ‘extraordinary circumstances beyond his control’” necessary to warrant
equitable tolling of the § 2244(d) statute of limitations period. See Maples, 565
U.S. at 283, 132 S. Ct. at 924 (quoting Holland, 560 U.S. at 659, 136 S. Ct. at 2568
(Alito, J., concurring)). Abandonment is not the only professional misconduct or
other extraordinary circumstance that will suffice for equitable tolling, but it is the
only one besides negligence that Cadet has argued.3
F.
Cadet contends that in addition to being negligent attorney Goodman
effectively abandoned him, thereby severing the attorney-client relationship, by
3
The dissent disagrees with our statement that Cadet stakes his case for equitable tolling
solely on his contention that that his attorney was negligent and abandoned him. It insists instead
that Cadet “frames the issue on appeal broadly.” Dissenting Opn. at 61. But he doesn’t. The
single sentence that the dissent snips from Cadet’s 33-page brief asserts nothing more than gross
negligence or abandonment or a combination of the two. See Holland, 560 U.S. at 657, 130
S. Ct. at 2567 (Alito, J., concurring) (explaining that in addition to miscalculating the filing
deadline, “forget[ing] to file the habeas petition on time, mail[ing] the petition to the wrong
address, or fail[ing] to do the requisite research to determine the applicable deadline” are all
“forms of attorney negligence” constructively attributable to the client). The rest of Cadet’s brief
makes clear that his argument is that Goodman’s conduct amounted to more than simple
negligence and was either gross negligence or abandonment.
26
Case: 12-14518 Date Filed: 02/24/2017 Page: 27 of 71
failing to follow Cadet’s instructions to file a § 2254 petition on time, by
reassuring Cadet that Goodman’s understanding of the federal filing deadline was
correct and that of the “jailhouse lawyers” was incorrect, and by not conducting
any legal research to determine the proper filing date after Cadet expressed doubts.
Cadet argues that, under agency law principles, counsel effectively abandons his
client and severs the attorney-client relationship when he acts in a manner that
harms his client’s interests. As the Supreme Court’s discussion in Maples shows,
agency law does provide the principles that govern a client’s accountability for his
attorney’s errors, but Cadet misstates those principles. 4
Under fundamental principles of agency law, the agency relationship
between an attorney and his client can be severed, with the result that the client is
not constructively charged with his attorney’s knowledge or actions when, for
example, the attorney actually abandons his client or purposely acts adversely to
his client’s interests or commits another serious breach of loyalty to his client. See
Downs, 520 F.3d at 1320 (“[U]nder fundamental tenets of agency law, a principal
4
The dissent criticizes us for “relying, to an unjustified extent, on agency law.”
Dissenting Opn. at 59. That criticism is remarkable for two reasons. First, both Cadet and the
dissent rely on agency law in support of their positions. Second, and more importantly, the
Supreme Court explained in Maples that the critical distinction between attorney negligence,
including egregious attorney error, and attorney abandonment is grounded in “well-settled
principles of agency law.” 565 U.S. at 280–81, 132 S. Ct. at 922–23. Under those principles a
petitioner bears the risk of attorney error unless his attorney has essentially abandoned him or
engaged in other misconduct that thereby “severed the principal-agent relationship.” Id. We
make no apology for answering the agency law arguments of Cadet and the dissent, or for
relying on “well-settled principles of agency law,” as the Supreme Court did in its Maples
decision.
27
Case: 12-14518 Date Filed: 02/24/2017 Page: 28 of 71
is not charged with an agent’s actions or knowledge when the agent is acting
adversely to the principal’s interests.”); Restatement (Second) of Agency § 112
(1958) (“[T]he authority of an agent terminates if, without knowledge of the
principal, he acquires adverse interests or if he is otherwise guilty of a serious
breach of loyalty to the principal.”); Restatement (Third) of Agency § 5.04 (2006)
(“[N]otice of a fact that an agent knows or has reason to know is not imputed to the
principal if the agent acts adversely to the principal in a transaction or
matter . . . .”). The adverse interest exception to the general rule of agency,
however, is not nearly as broad as Cadet would like it to be.
An agent is not deemed to have acted adversely to his principal’s interests
simply because he blundered and made an unwise, negligent, or grossly negligent
mistake that harmed those interests. Instead, an agent is deemed to have acted
adversely to his principal’s interests only when he acts, or fails to act, for the
purpose of advancing his own interests or those of a third party. The Restatements
(both Second and Third) of Agency make that clear. The Third Restatement
provides that a principal is not charged with his agent’s knowledge “if the agent
acts adversely to the principal in a transaction or matter, intending to act solely for
the agent’s own purposes or those of another person.” Restatement (Third) of
Agency § 5.04 (emphasis added). It also provides: “[T]he fact that an action taken
by an agent has unfavorable results for the principal does not establish that the
28
Case: 12-14518 Date Filed: 02/24/2017 Page: 29 of 71
agent acted adversely.” Id., cmt. c. The Second Restatement similarly provides:
“A principal is not affected by the knowledge of an agent in a transaction in which
the agent secretly is acting adversely to the principal and entirely for his own or
another’s purposes . . . .” Restatement (Second) of Agency § 282 (emphasis
added). As the First Circuit has explained: “‘Adverse interest’ in the context of
imputation means that the [agent] is motivated by a desire to serve himself or a
third party, and not the [principal], the classic example being looting.” Baena v.
KPMG LLP, 453 F.3d 1, 8 (1st Cir. 2006) (emphasis added).
The Supreme Court recognized exactly that in Maples, relying on
“[h]ornbook agency law” and citing the Restatement for the proposition that:
“[T]he authority of an agent terminates if, without knowledge of the principal, he
acquires adverse interests or if he is otherwise guilty of a serious breach of loyalty
to the principal.” 565 U.S. at 284, 132 S. Ct. at 924 (quotation marks omitted)
(alterations in original) (emphasis added); see also id. (quoting favorably the
commentary to the Restatement that explains “the agent commits a breach of duty
[of loyalty] to his principal by acting for another in an undertaking which has a
substantial tendency to cause him to disregard his duty to serve his principal with
only his principal’s purposes in mind.”) (quotation marks and first alteration
omitted) (emphasis added).
29
Case: 12-14518 Date Filed: 02/24/2017 Page: 30 of 71
The limitation on the adverse interest exception that the Supreme Court
recognized in Maples was applied by the Ninth Circuit in its Towery decision. See
Towery v. Ryan, 673 F.3d 933, 941–44 (9th Cir. 2012). Attempting to avoid the
bar on second and successive petitions, the death-sentenced habeas petitioner in
that case argued that there should be an equitable exception to that bar when
counsel in the first habeas proceeding had failed to raise a colorable claim and
thereby abandoned his client or breached his duty of loyalty, severing the agency
relationship. Id. at 936, 940–41. Putting aside the question of whether the second
or successive petition bar could be equitably lifted, the Ninth Circuit held that
failing to raise a colorable claim did not amount to abandonment or to a breach of
the duty of loyalty that severed the agency relationship and prevented the client
from being bound by the attorney’s actions or inactions. Id. at 941–44. The court
acknowledged that “[v]iolating the duty of loyalty, or failing to disclose adverse
interests, voids the agency relationship,” id. at 942 (quotation marks omitted), but
it also recognized that attorney error alone does not breach the duty of loyalty; the
attorney must instead have permitted another interest or consideration to interfere
with his loyalty to the petitioner, id. As the Ninth Circuit put it: “Towery also has
presented no authority for the proposition that counsel’s failure to raise a colorable
habeas claim amounts to a serious breach of the duty of loyalty that severs the
attorney-client agency relationship. We are not aware of any such authority.” Id.
30
Case: 12-14518 Date Filed: 02/24/2017 Page: 31 of 71
(emphasis added). Likewise, Cadet has presented no authority for the proposition
that his counsel’s negligent failure to file the habeas petition on time amounts to a
breach of loyalty that severs the attorney-client agency relationship.
The reasoning behind the adverse interest exception is that “where an agent,
though ostensibly acting in the business of the principal, is really committing a
fraud for his own benefit, he is acting outside of the scope of his agency, and it
would therefore be most unjust to charge the principal with knowledge of it.”
Wight v. BankAmerica Corp., 219 F.3d 79, 87 (2d Cir. 2000) (quotation marks
omitted). Courts have recognized that the adverse interest exception is a narrow
one, which applies only where an agent wholly disregards the principal’s interests
in favor of his own interests or the interests of a third party. See id. (“The adverse
interest exception, however, is narrow and applies only when the agent has totally
abandoned the principal’s interests.”) (quotation marks omitted); Beck v. Deloitte
& Touche, 144 F.3d 732, 736 (11th Cir. 1998) (explaining that, under Florida law,
an agent’s actions must be “entirely adverse” to the principal’s interests, meaning
that “his actions must neither be intended to benefit the [principal] nor actually
cause short- or long-term benefit to the [principal]”). 5
5
The dissent argues for a lazy lawyer expansion of the adverse interest exception,
contending that Goodman gained some “monetary or other benefit” because he “was able to
retain Cadet as a client by advising Cadet without any research and by constantly reassuring
Cadet that Goodman possessed superior knowledge.” Dissenting Opn. at 67. No precedent at all
exists to support a lazy lawyer exception, which would be alien to agency law. And, of course,
31
Case: 12-14518 Date Filed: 02/24/2017 Page: 32 of 71
It has to be so. If, as Cadet argues, a principal were not held accountable for
his agent’s actions or inactions unless they benefited the principal, the mistakes,
oversights, or negligence of even the most loyal and devoted agent would never be
charged against the principal. If Cadet’s view were adopted, principals would have
an iron clad guarantee against any loss from their agent’s actions or inactions.
That is not how the legal regime of agency operates. There is no upside-only slant
to it. If there were — if Cadet’s position prevailed –– instead of there being a
narrow adverse interest exception, there would be a broad adverse impact
exception that would eviscerate the rule that the principal is responsible for the
since every failure to act could be excused on grounds that it relieved the agent of the burden of
acting or carrying out some task, the dissent’s position would be utterly unworkable and would
discourage anyone from dealing with principals through their agents. It would also contradict
the result in the Lawrence case where the Supreme Court rejected equitable tolling even though
the petitioner’s attorney obviously had avoided the burden of doing any legal research to check
his erroneous belief about whether a certiorari petition statutorily tolled the time for filing a
federal habeas petition while maintaining Lawrence as his client. See 549 U.S. at 336–37, 127
S. Ct. at 1085.
Instead of providing support for its proposed lazy lawyer exception, the dissent states that
the cases we rely on “appear to assume . . . that an attorney receives monetary or other benefit
either by retaining the client at issue or by gaining other clients.” Dissenting Opn. at 67. The
dissent confuses abandonment with a breach of the duty of loyalty. But as the Ninth Circuit has
recognized, those are two different ways in which the agency relationship between attorney and
client can be severed. Towery, 673 F.3d at 941–42.
The dissent says that Goodman “repeatedly reassured Cadet that months remained in the
limitations period” and “discouraged Cadet from seeking advice from others.” Dissenting Opn.
at 53. While Goodman did express his sincere belief that he was right and rhetorically asked
Cadet “who are you going to believe, the real lawyer or the jailhouse lawyer?,” he didn’t tell
Cadet not to independently research the issue or seek advice from another attorney. Nor is there
any indication that Cadet ever contemplated doing so.
32
Case: 12-14518 Date Filed: 02/24/2017 Page: 33 of 71
actions of his agent. Agency law would be turned upside down, and no one would
be willing to deal with a principal through his agent.6
The dissent puts an ABA Model Rules of Professional Conduct spin on
Cadet’s adverse interest argument. Dissenting Opn. at 68–70. The dissent would
have us lower the bar for equitable tolling to the ground by providing that an
attorney’s failure to comply with the ABA Model Rules breaches the duty of
loyalty to his petitioner-client and thereby frees the petitioner from any mistakes
the attorney has made. Profound problems plague that position.
6
In response to our discussion of agency law and of the limited nature of the adverse
interest exception, the dissent argues that none of that law and those principles matter unless we
can point to a decision applying them to attorneys and their clients. It says that: “[T]he Majority
resorts to sources that speak to general principles of agency law rather than those discussing an
attorney’s relationship with his client.” Dissenting Opn. at 66. The dissent is mistaken. We
have already pointed out that the Supreme Court itself has held that agency law governs the
accountability of a client, including a criminal defendant or habeas petitioner, for the actions or
inactions of his attorney. See Holland, 560 U.S. at 656, 130 S. Ct. at 2566–67 (“Attorney
ignorance or inadvertence is not ‘cause’ because the attorney is the petitioner’s agent when
acting, or failing to act, in furtherance of the litigation, and the petitioner must ‘bear the risk of
attorney error.’”) (quoting Coleman, 501 U.S. at 753, 111 S. Ct. at 2566–67) (emphasis added)
(quotation marks omitted). Holland and Coleman are habeas cases, as is Towery, the Ninth
Circuit case we have discussed. See also Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 91,
111 S. Ct. 453, 456 (1990) (“Under our system of representative litigation, each party is deemed
bound by the acts of his lawyer-agent . . . .”) (quotation marks omitted).
We have also pointed out that the Supreme Court recognized in Maples, another federal
habeas case, that the adverse interest exception to client accountability for the actions and
inactions of the attorney applies when “without knowledge of the principal, [the attorney]
acquires adverse interests or if he is otherwise guilty of a serious breach of loyalty to the
principal,” and “[t]he agent commits a breach of duty [of loyalty] to his principal by acting for
another in an undertaking which has a substantial tendency to cause him to disregard his duty to
serve his principal with only his principal’s purposes in mind.” 565 U.S. at 284, 132 S. Ct. at
924 (emphasis added) (last alteration in original).
33
Case: 12-14518 Date Filed: 02/24/2017 Page: 34 of 71
The ABA Rules require an attorney to bring to bear in representing a client
“the legal knowledge, skill, thoroughness and preparation reasonably necessary for
the representation,” Model Rules of Prof’l Conduct r. 1.1 (Am. Bar Ass’n 2016),
and to actually “employ[] the requisite knowledge and skill in a particular matter,”
id. r. 1.1. cmt. 1. They require an attorney to always “act with reasonable diligence
and promptness in representing a client.” Id. r. 1.3. That means every lawyer must
always “take whatever lawful and ethical measures are required to vindicate a
client’s cause,” and “must also act with commitment and dedication to the interests
of the client and with zeal in advocacy upon the client’s behalf.” Id. r. 1.3 cmt. 1.
An attorney who is guilty of negligence, even simple negligence, in ascertaining
and calculating a filing deadline and thereby causes his client’s action to be barred
is not bringing to bear the necessary knowledge, skill, and thoroughness, and is not
zealously representing his client, as ABA Rules 1.1 and 1.3 require. That attorney
has clearly violated the ABA rules.
Yet we know, because the Supreme Court has held, that the fact that an
attorney missed a filing deadline because he failed to do even rudimentary
research, is a type of “miscalculation [that] is simply not sufficient to warrant
equitable tolling, particularly in the postconviction context where prisoners have
no constitutional right to counsel.” Lawrence, 549 U.S. at 336–37, 127 S. Ct. at
1085; accord Holland, 560 U.S. at 651–52, 130 S. Ct. at 2564 (“We have
34
Case: 12-14518 Date Filed: 02/24/2017 Page: 35 of 71
previously held 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.”) (citations and quotation marks omitted); see also id. at 652, 130
S. Ct. at 2564 (noting that an attorney’s failure to file a timely habeas petition and
ignorance of the correct filing deadline “suggest simple negligence”). The
Supreme Court made clear in Maples that “[n]egligence on the part of a prisoner’s
postconviction attorney does not qualify as ‘cause’” to relieve the prisoner from
the effects of that negligence. Maples, 565 U.S. at 280, 132 S. Ct. at 922. The
reason it does not, the Court explained, is “because the attorney is the prisoner’s
agent, and under well-settled principles of agency law, the principal bears the risk
of negligent conduct on the part of his agent.” Id. at 280–81, 132 S. Ct. at 922
(quotation marks omitted). As a result, “when a petitioner’s postconviction
attorney misses a filing deadline, the petitioner is bound by the oversight.” Id. at
281, 132 S. Ct. at 922.
The dissent’s theory is that for statute of limitations and equitable tolling
purposes a litigant is not bound by his attorney’s oversights, mistakes, and
negligence because such shortcomings violate the attorney’s mandatory duty under
the ABA Rules to render competent, thorough, and zealous representation. That
theory is impossible to reconcile with the holding and result in the Lawrence case.
If the attorney in that case had bothered to do any research about statutory tolling
35
Case: 12-14518 Date Filed: 02/24/2017 Page: 36 of 71
under § 2244(d), he would have quickly discovered that his belief was foreclosed
by controlling circuit precedent and was contrary to the decision of every other
circuit that had addressed the issue. Lawrence, 549 U.S. at 336, 127 S. Ct. at 1085.
If the dissent were correct, the Court would not have rejected the petitioner’s claim
for equitable tolling in Lawrence. Yet it did, concluding that the petitioner was
bound by his attorney’s mistaken inaction. Id. at 337, 127 S. Ct. at 1086.
And that is true even where an attorney’s mistakes are egregious enough to
be characterized as “gross negligence.” United States v. 7108 W. Grand Ave., 15
F.3d 632, 634 (7th Cir. 1994) (“[W]hy should the label ‘gross’ make a difference
to the underlying principle: that the errors and misconduct of an agent redound to
the detriment of the principal (and ultimately, through malpractice litigation, of the
agent himself) rather than of the adversary in litigation?”); cf. id. (“No lawyer
would dream of arguing on behalf of a hospital that, although the hospital is liable
in tort for staff physicians’ negligence and intentional misconduct, it is not liable
for their ‘gross negligence.’ The argument makes no more sense when presented
on behalf of a lawyer or litigant.”).
Attorney Goodman’s misinterpretation of the filing deadline and his failure
to conduct any research into the matter, particularly when faced with Cadet’s
persistent challenges to his calculation, was certainly negligent and, we assume,
grossly so. A careful reading of § 2244(d) should have dispelled his mistaken
36
Case: 12-14518 Date Filed: 02/24/2017 Page: 37 of 71
belief that the limitations period did not begin to run until after the conclusion of
Cadet’s Rule 3.850 proceedings. See 28 U.S.C. § 2244(d)(1)(A) & (d)(2). But the
fact that Goodman ought to have known better or ought to have done the necessary
research to know better does not mean that he was “acting adversely” to Cadet’s
interests as that phrase is used in agency law. Cf. Holland, 560 U.S. at 651–52,
130 S. Ct. at 2564 (stating that a negligent “‘miscalculation’ that leads a lawyer to
miss a filing deadline does not warrant equitable tolling”) (citation omitted);
Hutchinson v. Florida, 677 F.3d 1097, 1100 (11th Cir. 2012) (explaining that
counsel’s misinterpretation of AEDPA does not warrant equitable tolling simply
because counsel “ought to have known better”). Goodman was no more acting for
an adverse interest in this case than the attorney for Lawrence was in that case.
However much Goodman’s negligence harmed Cadet’s interests, that
negligence and the harm it caused did not occur because Goodman was acting to
promote his own or a third party’s interests at the expense of Cadet’s interests. To
disregard that critical fact, as Cadet and the dissent would have us do, would
ignore the “essential difference” the Supreme Court emphasized in Maples
between an attorney’s negligent errors, which are attributable to a client even
though harmful, and defaults that occur as a result of extraordinary circumstances
such as attorney abandonment or other forms of misconduct, which are not
attributable to a client. See Maples, 565 U.S. at 282, 132 S. Ct. at 923.
37
Case: 12-14518 Date Filed: 02/24/2017 Page: 38 of 71
G.
Contrary to Cadet’s contention, Goodman’s negligence in missing the filing
deadline does not mean that he abandoned or effectively abandoned Cadet.
Negligence, however gross, is not the same as abandonment. If it were, there
would be no point in Maples’ refinement or explication of what Holland said.
Abandonment denotes renunciation or withdrawal, or a rejection or desertion of
one’s responsibilities, a walking away from a relationship. See Abandon, Black’s
Law Dictionary (6th ed. 1990) (defining “abandon” as “[t]o give up absolutely; to
forsake entirely; to renounce utterly; to relinquish all connection with or concern
in; to desert”); Abandon, Random House Webster’s Unabridged Dictionary (2d ed.
1997) (defining “abandon” as “to leave completely and finally; forsake utterly;
desert,” or “to give up; discontinue, withdraw from”); Abandon, Webster’s New
World College Dictionary (3d ed. 1991) (defining “abandon” as “to give up
(something) completely or forever” and explaining that it “implies leaving a person
or thing, either as a final, necessary measure . . . or as a complete rejection of one’s
responsibilities, claims, etc.”); see also Harris v. United States, 367 F.3d 74, 81 (2d
Cir. 2004) (equating “abandonment” with “physical disappearance or constructive
disappearance”) (citations omitted); State v. Bradley, 811 S.W.2d 379, 384 (Mo.
1991) (defining “abandonment” as conduct that amounts to “a total default in
carrying out the obligations imposed upon [ ] counsel,” not merely ineffective
38
Case: 12-14518 Date Filed: 02/24/2017 Page: 39 of 71
assistance). We do not mean to suggest that temporary abandonment during a
critical period (a situation we do not have before us) would not be enough even if
the attorney un-abandons his client after the harm has occurred or can no longer be
avoided. What we mean is that the reason the filing deadline was missed must be
because of abandonment or some other extraordinary circumstance, not negligence
alone, even gross negligence.
Although attorney Goodman screwed up, as lawyers sometimes do, he did
not withdraw from representing Cadet, renounce his role as counsel, utterly shirk
all of his professional responsibilities to Cadet, or walk away from their attorney-
client relationship. Unlike the lawyer in Holland, Goodman did not fail to keep his
client abreast of key developments in his case, did not fail to respond to his client’s
inquiries or concerns, and did not sever nearly all communication with his client
for a period of years, or even for months, or even for weeks. See Holland, 560
U.S. at 652, 130 S. Ct. at 2564 (counsel, among other deficiencies, “failed to
inform Holland in a timely manner about the crucial fact that the Florida Supreme
Court had decided his case, . . . despite Holland’s many pleas for that information,”
and “failed to communicate with his client over a period of years, despite various
pleas from Holland that [counsel] respond to his letters”); Maples, 565 U.S. at 282,
132 S. Ct. at 923 (characterizing Holland as a case of abandonment involving
“counsel’s near-total failure to communicate with petitioner or to respond to
39
Case: 12-14518 Date Filed: 02/24/2017 Page: 40 of 71
petitioner’s many inquiries and requests over a period of several years”) (quotation
marks omitted). And unlike the two lawyers in Maples, Goodman did not wholly
desert, forsake, or abandon his client without notice, thereby ceasing to serve as his
agent “in any meaningful sense of that word,” 565 U.S. at 287, 132 S. Ct. at 926,
and leave him “without any functioning attorney of record,” id. at 288, 132 S. Ct.
at 927. Instead, Goodman maintained regular contact with Cadet throughout his
state post-conviction proceedings, and discussed the case with him on a number of
occasions, and responded to all of his many inquiries and concerns about the
federal filing deadline, and sent him copies of the relevant statutory language and
state appellate court opinion, and did prepare and eventually file a § 2254 petition
on Cadet’s behalf.
Although Goodman failed to file that § 2254 petition on time, he did not
knowingly disregard Cadet’s instructions that he file on time. Based on his
misreading of § 2244(d), Goodman genuinely believed that he had ample time in
which to prepare and file a federal habeas petition following the conclusion of
Cadet’s Rule 3.850 proceedings. As Justice Alito noted in his Holland
concurrence, while articulating the critical distinction that would become the
Maples standard, an attorney’s miscalculation of the filing deadline, inadvertent
failure to file a § 2254 petition on time, or failure “to do the requisite research to
determine the applicable deadline” are all types of errors that are “constructively
40
Case: 12-14518 Date Filed: 02/24/2017 Page: 41 of 71
attributable to the client.” Holland, 560 U.S. at 657, 130 S. Ct. at 2567 (Alito, J.,
concurring); see also Menominee Indian Tribe, 136 S. Ct. at 756–57 (mistaken
reading of precedent is a garden variety error that does not justify equitable
tolling).
Goodman’s negligent misreading of § 2244(d)(1)(A) is the kind of attorney
error regarding the § 2244(d) statute of limitations provisions that the Supreme
Court, this Court, and other courts have held does not qualify as an extraordinary
circumstance warranting equitable tolling. See Lawrence, 549 U.S. at 336–37, 127
S. Ct. at 1085 (explaining that to hold otherwise “would essentially equitably toll
limitations periods for every person whose attorney missed a deadline. Attorney
miscalculation is simply not sufficient to warrant equitable tolling”); Steed, 219
F.3d at 1300 (“Any miscalculation or misinterpretation by Steed’s attorney in
interpreting the plain language of [§ 2244(d)] does not constitute an extraordinary
circumstance sufficient to warrant equitable tolling.”); Johnson v. Hendricks, 314
F.3d 159, 162–63 (3d Cir. 2002) (equitable tolling not warranted where the
petitioner detrimentally relied on counsel’s erroneous advice that under § 2244(d)
he had one year from the conclusion of his state post-conviction proceedings to file
a § 2254 petition); Harris v. Hutchinson, 209 F.3d 325, 331 (4th Cir. 2000)
(counsel’s misinterpretation of the “unambiguously” clear § 2244(d)(1) provision
did not constitute an extraordinary circumstance); Taliani v. Chrans, 189 F.3d 597,
41
Case: 12-14518 Date Filed: 02/24/2017 Page: 42 of 71
597–98 (7th Cir. 1999) (concluding that “under no tenable view of the doctrine [of
equitable tolling] did the lawyer’s mistake” in calculating the filing deadline
because of inadequate research into § 2244(d)(1) warrant tolling). Those decisions
all preceded the Holland and Maples decisions, but they are not inconsistent with
either one.
When Cadet repeatedly expressed concern and informed Goodman that
jailhouse lawyers had calculated his filing deadline differently, Goodman
stubbornly but in good faith adhered to his misreading of the statutory provision.
Stubborn negligence is still negligence. Persisting in a mistaken reading of a
statutory provision without checking further after being told that incarcerated
criminals without law degrees have questioned that reading is not abandonment or
other attorney misconduct.7 At most, it might be enough to raise the degree of a
lawyer’s negligence from simple to gross. But that difference is still one of degree,
while the difference between any degree of negligence and attorney misconduct or
other extraordinary circumstance is one of kind.
7
The dissent seeks support for its position with our decision in Downs v. McNeil, 520
F.3d 1311, 1322 (11th Cir. 2008), where the professional misconduct involved “counsel’s overt
deception in representing [to the petitioner that] they had filed a tolling petition in state court
when they had not in fact done so.” See Dissenting Opn. at 64–65. The Downs decision lends
no support to the dissent. No one has ever suggested that Goodman lied to Cadet about having
filed a tolling petition or about anything else.
42
Case: 12-14518 Date Filed: 02/24/2017 Page: 43 of 71
H.
We do not wish to be misunderstood. All that we have before us in this
case, and all that we decide, is the question of whether negligence, even gross
negligence, alone is enough to meet the extraordinary circumstance requirement
for equitable tolling in a habeas case. We hold that it is not. More is required, and
that more may be abandonment. We certainly do not hold, or in any way mean to
imply, that abandonment is the only circumstance that can meet the extraordinary
circumstance element for equitable tolling, although some courts have
misinterpreted our previous opinion in this case to mean that. See Luna v. Kernan,
784 F.3d 640, 647–48 (9th Cir. 2015). 8 Abandonment is an extraordinary
circumstance that can, when coupled with reasonable diligence by the petitioner,
justify equitable tolling, but attorney negligence or gross negligence, by
themselves, are not.
Circumstances other than abandonment can meet the extraordinary
circumstance element for equitable tolling. Among them are our pre-Holland
8
We said in Lugo v. Sec’y, Fla. Dep’t of Corr., 750 F.3d 1198, 1210 n.10 (11th Cir.
2014), that “[i]n [Cadet] . . . , we held that the proper standard for gauging whether attorney
misconduct qualifies as an extraordinary circumstance for equitable tolling purposes is whether it
amounts to abandonment of the attorney-client relationship, not whether it is negligence or even
gross negligence.” That sentence could have been more carefully written but the distinction it
draws is between abandonment on the one hand and negligence or gross negligence on the other.
It does not state that abandonment is the only extraordinary circumstance. And, in any event, the
statement is pure dicta. See id. (stating that because the petitioner had not met the due diligence
or causal connection requirements for equitable tolling, “we need not address Cadet’s application
to this case or decide whether counsel’s alleged errors rose to the level of abandonment”).
43
Case: 12-14518 Date Filed: 02/24/2017 Page: 44 of 71
circumstances of bad faith, dishonesty, divided loyalty, and mental impairment.
See Thomas v. Att’y Gen., 795 F.3d 1286, 1292–94 (11th Cir. 2015) (explaining
that the Supreme Court in Holland implied that those circumstances would be
sufficient). Those circumstances can be sufficient if there is a causal link, but we
recognize that they most definitely are not the only ones that can suffice. See
Holland, 560 U.S. at 651, 130 S. Ct. at 2563 (“[A]t least sometimes, professional
misconduct that fails to meet the Eleventh Circuit’s standard could nonetheless
amount to egregious behavior and create an extraordinary circumstance that
warrants equitable tolling.”); id. at 652, 130 S. Ct. at 2564 (“[S]uch [extraordinary]
circumstances are not limited to those . . . .”); see also Hunter v. Ferrell, 587 F.3d
1304, 1309–10 (11th Cir. 2009) (holding that mental retardation that affects a pro
se petitioner’s ability to file a habeas petition on time will justify equitable tolling).
Other extraordinary circumstances that justify equitable tolling, including
other instances of attorney misconduct, can be identified as they arise in future
cases. 9 We recognize that, and also recognize that our decision in Holland was
9
The decision and opinion in the Thomas case are not inconsistent with what we hold
and say here. Thomas recognized, as we do, that equitable tolling is available for “serious
instances of attorney misconduct.” 795 F.3d at 1291 (quoting Christeson, 135 S. Ct. at 894). It
also recognized, as we do, that our pre-Holland circumstances of “bad faith, dishonesty, divided
loyalty, [and] mental impairment” still qualify “as extraordinary circumstances” that can support
a claim to equitable tolling. Id. at 1292, 1294. That assumes, of course, a causal connection
between one of those circumstances and the failure to file on time. Absent a causal connection,
tolling would not be available, which is why the Thomas opinion says that the named
circumstances “may still serve as extraordinary circumstances,” id. at 1292, for tolling purposes;
44
Case: 12-14518 Date Filed: 02/24/2017 Page: 45 of 71
overturned by the Supreme Court in that case, even though the dissent in this case
refuses to recognize that we do recognize it. Despite our earnest desire not to be
misunderstood, the dissent misunderstands our decision, stating more than a dozen
times that we are reinstating this circuit’s pre-Holland rule, that we are construing
Maples as having implicitly overruled Holland, that we are discrediting Holland,
that we are defying Holland, and on and on. We aren’t.
Our holding, as explained and limited in the text of this opinion, explicitly
recognizes and follows Holland and other Supreme Court decisions. What the
dissent does not recognize is that neither Holland nor any other Supreme Court
decision holds that negligence or gross negligence standing alone is enough to
justify equitable tolling. The dissent also fails to recognize the clear meaning of
the plain words that the Supreme Court used in Maples to explain its decision in
Holland — not to overrule it, not to cut back on it, not to undermine it, but to
construe and explain it.
they will serve to toll if they existed and caused the late filing, see id. at 1295 (explaining that
mental impairment can serve as an extraordinary circumstance “at least where the petitioner is
able to show that it affected his lawyer’s work”).
Finally, the Thomas opinion recognizes, as we do, that where there is no abandonment
the question is “whether [the attorney’s] conduct otherwise amounted to serious misconduct that
constitutes an extraordinary circumstance.” Id. at 1297. In other words, serious attorney
misconduct that can serve to toll the habeas statute of limitations is not limited to abandonment,
or to the circumstances we listed in our Holland decision before the Supreme Court’s Holland
decision.
45
Case: 12-14518 Date Filed: 02/24/2017 Page: 46 of 71
What we hold today, and all that we hold, is that an attorney’s negligence,
even gross negligence, or misunderstanding about the law is not by itself a serious
instance of attorney misconduct for equitable tolling purposes, even though it does
violate the ABA model rules as all, or virtually all, attorney negligence does. See
Luna, 784 F.3d at 647 (explaining why negligently miscalculating a filing deadline
alone is not and cannot be a sufficient basis for finding attorney misconduct for
tolling purposes). Because Cadet has shown, at most, that his failure to meet the
filing deadline was the product of his attorney’s good faith but negligent or grossly
negligent misunderstanding of the law, the district court properly dismissed the
habeas petition as untimely.
AFFIRMED.
46
Case: 12-14518 Date Filed: 02/24/2017 Page: 47 of 71
WILSON, Circuit Judge, dissenting:
Attorney Michael Steven Goodman caused Earnest Cadet to be late in filing
a federal habeas petition, and Cadet asks for extra time to file his petition. The
Supreme Court instructs us that, in determining whether to grant extra time to file a
federal habeas petition, we must avoid the imposition of a mechanical rule and
consider on a case-by-case basis any attorney misconduct that exceeds garden-
variety negligence. Goodman’s misconduct exceeded garden-variety negligence
and compels a case-specific inquiry into whether we should grant Cadet extra time
to file a federal habeas petition. Disregarding the Supreme Court’s instruction, the
Majority imposes a mechanical rule and denies Cadet this case-specific inquiry.
First the Majority imposes the rule that attorney negligence, even gross negligence,
alone can never justify granting extra time to file a federal habeas petition. Then
the Majority declares that Goodman’s misconduct constituted negligence and
denies Cadet the extra time.
I welcome the Majority’s revisions, including the clarification that an
attorney’s abandonment of a client is not the only reason for equitably tolling the
limitations period for a federal habeas petition.1 However, I cannot join the
1
Approximately one hundred opinions and report and recommendations have cited this
panel’s initial opinion, many for the proposition that only abandonment merits equitably tolling
the limitations period for a federal habeas petition. See, e.g., Gillman v. Sec’y, Fla. Dep’t of
Corr., 576 F. App’x 940, 943 n.7 (11th Cir. 2014) (per curiam) (Carnes, C.J., Tjoflat, Jordan,
J.J.) (“[Cadet] held that the correct standard for determining whether attorney misconduct
47
Case: 12-14518 Date Filed: 02/24/2017 Page: 48 of 71
Majority in concluding—in defiance of Holland v. Florida, 560 U.S. 631,
130 S. Ct. 2549 (2010)—that attorney negligence alone can never justify equitably
tolling the limitations period. And I cannot join the Majority in ultimately
declining to equitably toll the limitations period for Cadet. I respectfully dissent.
I
I cannot join the Majority’s opinion that attorney negligence alone can never
justify equitably tolling the limitations period. The Majority’s opinion is not this
circuit’s first attempt to promulgate this rule: in 2008, we announced the same in
Holland v. Florida, 539 F.3d 1334 (11th Cir. 2008) (per curiam). Rejecting the
rule, the Supreme Court stated:
In the Court of Appeals’ view, . . . [an] attorney’s
unprofessional conduct, . . . even if it is “negligent” or
“grossly negligent,” cannot . . . warrant equitable tolling
unless the petitioner offers “proof of bad faith,
dishonesty, divided loyalty, mental impairment or so
forth.” In our view, this standard is too rigid. We
therefore reverse the judgment of the Court of Appeals
and remand for further proceedings.
Holland, 560 U.S. at 634–35, 130 S. Ct. at 2554 (citations omitted). Rather than
accept the Supreme Court’s judgment, the Majority pronounces this rule once
again.
qualifies as an extraordinary circumstance for equitable tolling purposes is whether the conduct
amounts to abandonment of the attorney-client relationship.”); Moore v. Jones, No. 3:14-cv-484
(N.D. Fla. Mar. 17, 2016) (adopting a report and recommendation that states, “[A]bandonment of
the attorney-client relationship is required”).
48
Case: 12-14518 Date Filed: 02/24/2017 Page: 49 of 71
The Majority quibbles with the Holland majority and applauds and adopts
the Holland concurrence that agreed in part with this circuit’s Holland decision. In
order to justify adopting a concurrence over the Supreme Court’s controlling
opinion, the Majority relies on a citation to the Holland concurrence in Maples v.
Thomas, 565 U.S. 266, 132 S. Ct. 912 (2012), a subsequent Supreme Court
decision. The Majority concludes that Maples, by citing the Holland concurrence,
implicitly overruled the Holland majority. In other words, the Majority declares
that this circuit’s holding in Holland was right all along.
The Majority’s holding contravenes the Supreme Court’s instruction against
construing one of its opinions as “implicitly overrul[ing]” a previous opinion. See
Bosse v. Oklahoma, 580 U.S. ___, 137 S. Ct. 1, 2 (2016) (per curiam); Evans v.
Sec’y, Fla. Dep’t of Corr., 699 F.3d 1249, 1263 (11th Cir. 2012) (Carnes, C.J.)
(“The Supreme Court has not always been consistent in its decisions or in its
instructions to lower courts. There are, however, some things the Court has been
perfectly consistent about, and one of them is that it is that Court’s prerogative
alone to overrule one of its precedents.”). Further, Maples did not adopt the
portion of the Holland concurrence discussing the tolling effect of negligence.
Maples cited favorably Section II of the Holland concurrence; Section I discussed
negligence. Specifically, Maples cited Section II for guidance on how to
49
Case: 12-14518 Date Filed: 02/24/2017 Page: 50 of 71
determine whether an attorney “abandoned” a client, an issue for which there was
limited guidance.
The Holland majority and the Maples majority comprised the same six
Justices. Interpreting Maples as implicitly overruling Holland, the Majority claims
that the six Justices about-faced in Maples, a case that was decided a mere
19 months after Holland.
A. Holland reversed this circuit’s rule that attorney negligence, even
gross negligence, alone can never equitably toll the limitations
period.
Under 28 U.S.C. § 2244(d) of the Antiterrorism and Effective Death Penalty
Act (AEDPA), a state prisoner has a year after final judgment, among other
enumerated dates, to petition for federal habeas relief. The prisoner is entitled to
equitable tolling of this limitations period if he can establish “(1) that he has been
pursuing his rights diligently[] and (2) that some extraordinary circumstance stood
in his way . . . .” Holland, 560 U.S. at 649, 130 S. Ct. at 2562 (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 1814 (2005)). The issue in
Holland and here is whether the misconduct of a prisoner’s attorney constitutes an
“extraordinary circumstance” that merits equitably tolling the limitations period.
In Holland, the prisoner’s attorney communicated with the prisoner only
three times over three years, and “each time by letter.” Id. at 636, 130 S. Ct.
at 2555. This circuit held that the attorney’s misconduct constituted at most gross
50
Case: 12-14518 Date Filed: 02/24/2017 Page: 51 of 71
negligence and declared that attorney negligence alone can never constitute an
extraordinary circumstance:
[I]n our view, no allegation of lawyer negligence or of
failure to meet a lawyer’s standard of care—in the
absence of an allegation and proof of bad faith,
dishonesty, divided loyalty, mental impairment or so
forth on the lawyer’s part—can rise to the level of
egregious attorney misconduct that would entitle [the
prisoner] to equitable tolling. Pure professional
negligence is not enough.
Holland, 539 F.3d at 1339.
The Supreme Court reversed this rejection of negligence as a ground for
equitable tolling and remanded for further proceedings. Emphasizing that the
prisoner’s case presented a question of equity, the Court instructed that—in
determining whether to equitably toll based on any attorney misconduct other than
garden-variety negligence2—we must consider the misconduct on a “case-by-case
basis” and avoid imposing “mechanical rules”:
In emphasizing the need for flexibility, for avoiding
mechanical rules, we have followed a tradition in which
courts of equity have sought to relieve hardships which,
from time to time, arise from a hard and fast adherence to
more absolute legal rules, which, if strictly applied,
threaten the evils of archaic rigidity. The flexibility
inherent in equitable procedure enables courts to meet
2
Holland recognized that in previous cases the Supreme Court had held that a “garden
variety claim of excusable neglect” could not merit equitable tolling. See Holland, 560 U.S.
at 633, 130 S. Ct. at 2553 (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct.
453, 458 (1990)). For brevity’s sake, the Dissent addresses a “garden variety claim of excusable
neglect” as “garden-variety negligence.”
51
Case: 12-14518 Date Filed: 02/24/2017 Page: 52 of 71
new situations that demand equitable intervention, and to
accord all the relief necessary to correct particular
injustices.
Holland, 560 U.S. at 650, 130 S. Ct. at 2563 (citations omitted). 3
Despite this instruction, the Majority resurrects this circuit’s overruled
Holland holding and reinstates the mechanical rule that attorney negligence, even
gross negligence, alone can never equitably toll the limitations period for a federal
habeas petition:
[We] hold[] that attorney negligence, even gross or
egregious negligence, does not by itself qualify as an
“extraordinary circumstance” for purposes of equitable
tolling . . . .
See Maj. Op. at 23, 39, 43, 46.4
Like Holland, this appeal hinges on a question of equity. Cadet requests,
based on Goodman’s misconduct, equitable tolling of the limitations period for a
3
The Holland majority ruled against the imposition of a mechanical rule and never
condoned the categorization of certain attorney misconduct as “gross negligence.” The Holland
majority used the phrase only to describe this circuit’s holding in that case. See 560 U.S. at 634,
644, 649, 130 S. Ct. at 2554 2559, 2563. Only the Holland concurrence adopted gross
negligence as a category of attorney misconduct. See id. at 657, 130 S. Ct. at 2567 (Alito, J.,
concurring). In accord with the Holland majority, the Dissent does not recognize gross
negligence as a category of attorney misconduct and uses the phrase only in response to the
Majority’s use.
4
The Majority argues that its declaration—that attorney negligence alone can never merit
equitable tolling—is not a mechanical rule. In support, the Majority states that its opinion
“make[s] clear that abandonment, or some other professional misconduct, or some other
extraordinary circumstance can be sufficient for equitable tolling.” Maj. Op. at 23 n.2. A
principal imposes a mechanical rule by prohibiting students from wearing only pants, and no
other garments, to school. This rule is still a rule even though the principal likely allows the
students to wear the pants with shoes and a top to school.
52
Case: 12-14518 Date Filed: 02/24/2017 Page: 53 of 71
federal habeas petition. Although Cadet repeatedly inquired about the timing of
his federal habeas petition, Goodman failed to research the issue. Yet Goodman
repeatedly reassured Cadet that months remained in the limitations period and
discouraged Cadet from seeking advice from others. Goodman was incorrect, and
Cadet’s petition was untimely. Because Goodman’s misconduct exceeded garden-
variety negligence, Cadet is entitled to a case-specific inquiry—free of categories
and other mechanical rules rejected by the Supreme Court—into whether
Goodman’s misconduct merits equitably tolling the AEDPA limitations period.
See Holland, 560 U.S. at 650, 130 S. Ct. at 2563. The Majority, in conflict with
Supreme Court instruction, denies Cadet this inquiry. 5
B. The Majority interprets Maples as implicitly overruling Holland.
1. The Supreme Court prohibits construing one of its opinions as
implicitly overruling a previous opinion.
The Majority sends us back to this circuit’s pre-Holland jurisprudence by
interpreting Maples as implicitly overruling Holland and by reinstating this
circuit’s reversed Holland decision. However, the Supreme Court has stated, “It is
5
The Majority believes that its opinion is consistent with Holland because Holland never
held that “gross negligence alone may be an extraordinary circumstance warranting equitable
tolling.” Maj. Op. at 22; see id. at 15, 20. As the third footnote of this Dissent states, no portion
of the Holland majority condoned the categorization of certain attorney misconduct as “gross
negligence.” Rather, Holland ruled against the imposition of a mechanical rule. The Majority
defies Holland because the Majority imposes a mechanical rule—the creation of a category of
attorney misconduct that can never constitute an extraordinary circumstance—not because the
Majority excludes a category of attorney misconduct that Holland acknowledged and included as
an extraordinary circumstance.
53
Case: 12-14518 Date Filed: 02/24/2017 Page: 54 of 71
this Court’s prerogative alone to overrule one of its precedents,” warning against
construing one of its opinions as “implicitly overrul[ing]” a previous opinion. See
Bosse, 137 S. Ct. at 2 (quoting United States v. Hatter, 532 U.S. 557, 567,
121 S. Ct. 1782, 1790 (2001)); Evans, 699 F.3d at 1263 (“The Supreme Court has
not always been consistent in its decisions or in its instructions to lower courts.
There are, however, some things the Court has been perfectly consistent about, and
one of them is that it is that Court’s prerogative alone to overrule one of its
precedents.”); id. (“We must not, to borrow Judge Hand’s felicitous words,
‘embrace the exhilarating opportunity of anticipating’ the overruling of a Supreme
Court decision.”); id. (“The Court has told us, over and over again, to follow any of
its decisions that directly applies in a case, even if the reasoning of that decision
appears to have been rejected in later decisions and leave to that Court the
prerogative of overruling its own decisions.”).
Reluctant to declare forthright that Maples implicitly overruled Holland, the
Majority states that Maples “construed and clarified” Holland; that the former
decision must be read “in light of” the latter decision; that the latter decision
“reached back to” the former decision’s concurrence; and that the former
decision’s concurrence “set the template” for the latter decision. See Maj. Op.
at 15, 21, 23. Each phrase is no more than a euphemism for implicit overrule. The
Majority all but declares that Maples implicitly overruled Holland, which
54
Case: 12-14518 Date Filed: 02/24/2017 Page: 55 of 71
instructed us to avoid the imposition of a mechanical rule and to grant relief on a
case-by-case basis. See Holland, 560 U.S. at 650, 130 S. Ct. at 2563. According
to the Majority, Maples declared that attorney negligence alone can never merit
equitably tolling the limitations period. In other words, the Majority believes that
Maples imposed a mechanical rule, which the Majority now adopts to conclude
that the type of misconduct that Goodman committed can never equitably toll the
limitations period.
The Majority interprets Maples as implicitly overruling Holland. This
interpretation contravenes the Supreme Court’s instruction against construing one
of its opinions as “implicitly overrul[ing]” a previous opinion. See Bosse,
137 S. Ct. at 2; Evans, 699 F.3d at 1263.
2. The Majority’s interpretation of Maples as implicitly overruling
Holland is baseless.
The Majority’s interpretation of Maples as implicitly overruling Holland
relies solely on Maples’s citation of the Holland concurrence. However, Maples
does not embrace the portion of the Holland concurrence at odds with the Holland
majority; Maples supports its decision with a section of the concurrence that does
not discuss negligence.
Justice Alito’s concurrence comprised two clearly delineated sections: the
first section discussed negligence, and the second did not. Merely summarizing
Section I in order to introduce Section II, Maples focused on Section II, which
55
Case: 12-14518 Date Filed: 02/24/2017 Page: 56 of 71
entertained a prisoner’s argument that his attorney “essentially abandoned him.”
See Holland, 560 U.S. at 659–60, 130 S. Ct. at 2568. Likewise, Maples involved a
prisoner’s argument that his attorney “abandoned” him. See Maples, 565 U.S.
at 282, 132 S. Ct. at 923. Because discussion of an attorney’s “abandonment” of a
client was sparse in case law, Maples found the Holland concurrence to be
“instructive.” See id. at 281, 132 S. Ct. at 923.
Even with Section II, Maples used the section at most as a reference.
Although Maples “agree[d]” with the Holland concurrence’s application of agency
law, Maples did not elevate the Holland concurrence to controlling law. See id.
at 283, 132 S. Ct. at 924. In other words, Maples’s citation of the Holland
concurrence is about as significant as the Majority’s citation of dictionaries in
defining “abandonment.” See Maj. Op. at 38. The Holland concurrence is as
much controlling law as these dictionaries: not at all. No support exists for the
Majority’s position that, “[i]n the course of explaining its Holland decision, the
Maples Court reached back to Justice Alito’s concurring opinion in Holland, and
adopted his distinction . . . between a claim of attorney error, however egregious,
and a claim that an attorney had essentially abandoned his client.” See id. at 21–22
(citing Maples, 565 U.S. at 282, 132 S. Ct. at 923).
56
Case: 12-14518 Date Filed: 02/24/2017 Page: 57 of 71
The Majority’s primary argument for Maples’s elevating Section I to
controlling law is the phrase “essential difference” in Maples’s summary of the
concurrence:
In a concurring opinion in Holland, Justice Alito homed
in on the essential difference between a claim of attorney
error, however egregious, and a claim that an attorney
had essentially abandoned his client.
Maples, 565 U.S. at 282, 132 S. Ct. at 923. The Majority believes that the phrase
“essential difference” implies that Maples not only adopted the Holland
concurrence’s distinction between “attorney error” and “essential abandonment”
but also rejected attorney error as a ground for equitable tolling. See Maj. Op.
at 18, 22, 37. “‘Essential difference’ means ‘essential difference,’” says the
Majority. Id. at 22.
The Majority’s wishful reading of Maples is refuted by Maples’s
subsequently identifying the portion of the Holland concurrence from which it
extracts value:
We agree that, under agency principles, a client cannot be
charged with the acts or omissions of an attorney who
has abandoned him.
See Maples, 565 U.S. at 283, 132 S. Ct. at 924. If Maples wished to adopt
Section I’s distinction between “attorney error” and “essential abandonment” and
to reject attorney error as a ground for equitable tolling, it would have said so. The
Majority’s interpretation of Maples as implicitly overruling Holland is baseless.
57
Case: 12-14518 Date Filed: 02/24/2017 Page: 58 of 71
C. Reinstating this circuit’s reversed rule, the Majority weighs in on an
issue that divided, and was resolved by, the Holland Court.
The Majority reinstates the mechanical rule that negligence, even gross
negligence, alone can never equitably toll the limitations period. Attempting to
justify this rule, the Majority quibbles with Holland’s instruction against the
imposition of a mechanical rule and states, “In Holland itself the Court reaffirmed
its own ‘rigid’ or ‘mechanical’ rule that simple or garden variety negligence alone
can never warrant equitable tolling.” See Maj. Op. at 24. While criticizing the
Holland majority, the Majority applauds and adopts the Holland concurrence,
which stated that distinguishing garden-variety negligence from other types of
negligence was impractical and recommended a standard prohibiting negligence
from equitably tolling the limitations period. The Majority continually cites as
authoritative Maples’s summary of Justice Alito’s concurrence: “In a concurring
opinion in Holland, Justice Alito homed in on the essential difference between a
claim of attorney error, however egregious, and a claim that an attorney had
essentially abandoned his client.” See Maples, 565 U.S. at 282, 132 S. Ct. at 923;
Maj. Op. at 18, 22, 37.
Put another way, the Majority weighs in on an issue that divided, and was
resolved by, the Holland Court: the need for a standard governing the tolling effect
of attorney misconduct other than garden-variety negligence. Compare Holland,
560 U.S. at 649–50, 130 S. Ct. at 2563 (“[T]he exercise of a court’s equity powers
58
Case: 12-14518 Date Filed: 02/24/2017 Page: 59 of 71
must be made on a case-by-case basis.”), with id. at 657–58, 130 S. Ct. at 2567
(Alito, J., concurring) (“Allowing equitable tolling in cases involving gross rather
than ordinary attorney negligence would . . . be impractical in the extreme.”), id.
at 671, 130 S. Ct. at 2575 (Scalia, J., dissenting) (criticizing the Holland majority’s
“refusal to articulate an intelligible rule”), and Maj. Op. at 25 (“[T]he inquiry
should not be a standardless, by-the-seat-of-the-pants, length-of-the-chancellor’s-
foot, purely discretionary decision.”). As a court of appeals, we cannot take sides
on an issue on which the Court has already ruled. We must adopt, rather than
dispute, the Court’s controlling opinion and cannot favor over the Court’s majority
ruling a contradicting concurrence that failed to win the majority vote. As the
Holland Court instructs, we must evaluate attorney misconduct other than garden-
variety negligence on a case-by-case basis to determine whether the misconduct
merits equitably tolling a federal habeas petitioner’s limitations period.
II
Denying Cadet equitable tolling, the Majority errs not only in declaring that
an attorney’s negligence alone can never merit equitable tolling but also in relying,
to an unjustified extent, on agency law. The correct examination is free of
categories and other mechanical rules and uses, among other things, this circuit’s
case law, agency law, and professional responsibility principles. This examination
reveals that Cadet is entitled to equitable tolling of the AEDPA limitations period.
59
Case: 12-14518 Date Filed: 02/24/2017 Page: 60 of 71
A. The Majority relies to an unjustified extent on agency law.
As stated before, a prisoner is entitled to equitable tolling of the AEDPA
limitations period if he can establish “(1) that he has been pursuing his rights
diligently[] and (2) that some extraordinary circumstance stood in his way . . . .”
Holland, 560 U.S. at 649, 130 S. Ct. at 2562. The issue here is whether
Goodman’s misconduct constitutes an extraordinary circumstance that merits
equitably tolling Cadet’s limitations period. Considering whether Goodman’s
misconduct constitutes an extraordinary circumstance, the Majority relies to an
unjustified extent on agency law. 6 The Majority concludes that no extraordinary
circumstance exists after it determines that Goodman never severed the agency
relationship and that Goodman’s missing the limitations deadline was attributable
to Cadet, the principal. The Majority treats agency law as dispositive.
The Majority offers two justifications for this dependency on agency law.
First, the Majority cites Maples’s use of “well-settled principles of agency law.”
See Maj. Op. at 27 n.4 (citing Maples, 565 U.S. at 280–81, 132 S. Ct. at 922).
However, Maples’s use of agency law was limited to entertaining a prisoner’s
6
The only other reasoning that the Majority offers is dictionary definitions of the word
“abandonment,” a word that was first uttered by the prisoners in Holland and Maples. Often
used as a method of interpreting “statutes, . . . constitutional provisions[,] and administrative
codes,” dictionary definitions are rejected by many even in interpreting statutes. See Note,
Looking It up: Dictionaries and Statutory Interpretation, 107 Harv. L. Rev. 1437, 1437–39
(1994). Using dictionary definitions to understand a litigant’s claim and a Supreme Court
opinion is less justified than using dictionary definitions to understand statutory text.
60
Case: 12-14518 Date Filed: 02/24/2017 Page: 61 of 71
argument that his attorney “abandoned” him. See Maples, 565 U.S. at 271,
132 S. Ct. at 917. The Majority’s application of agency law—as the primary
method of determining the existence of an extraordinary circumstance—reaches far
beyond Maples’s guidance. Justice Scalia in his Holland dissent criticized the
majority for “importing into equity” the standard of another area of law. See
Holland, 560 U.S. at 670–71, 130 S. Ct. at 2575 (Scalia, J., dissenting). The
Majority here goes beyond importing agency law into equity: it replaces equity
with agency law.
Second, the Majority depends on agency law under the false assumption that
the only issue on appeal is whether Goodman abandoned Cadet. The Majority
states, “Abandonment is not the only professional misconduct or other
extraordinary circumstance that will suffice for equitable tolling, but it is the only
one besides negligence that Cadet has argued.” Maj. Op. at 26; see id. at 26 n.3.
Not so. Summarizing his argument, Cadet frames the issue on appeal broadly:
Mr. Goodman’s hallow reassurances to Mr. Cadet that he
would timely file a federal habeas petition in response to
Mr. Cadet’s repeated requests that he do so, and his
failure to undertake necessary research to determine the
correct filing date despite Mr. Cadet’s repeated
questioning of the calculation of the filing deadline
constitute “extraordinary circumstances” warranting
equitable tolling of the limitations period.
Appellant’s Br. at 15; see id. at 16, 23 (“Accordingly, Mr. Cadet has demonstrated
‘extraordinary circumstances’ sufficient to warrant equitable tolling.”).
61
Case: 12-14518 Date Filed: 02/24/2017 Page: 62 of 71
Although Cadet argues extensively that Goodman abandoned him, he does
so because the district court incorrectly held that, “in order to rise to the level
necessary to constitute an ‘extraordinary circumstance’ . . . attorney negligence
must be so egregious as to amount to an effective abandonment of the attorney-
client relationship.” Cadet v. Fla., Dep’t of Corr., No. 9:07-cv-80758, at 70
(S.D. Fla. Aug. 1, 2012). Instead of correcting the district court, the Majority
believes that Cadet narrowed the standard with which the Majority can determine
whether an extraordinary circumstance exists. This appeal is about whether
Goodman’s misconduct constituted an extraordinary circumstance. The Majority
cannot fault Cadet for the district court’s misstatement of the standard and cannot
justify limiting this appeal to whether Goodman abandoned Cadet.
Agency law is not the be-all and end-all for this question of equity. See
Downs v. McNeil, 520 F.3d 1311, 1321 (11th Cir. 2008) (“The rule that a petitioner
must always bear the consequences of his attorney’s misconduct is unequivocal—
yet bright-line rules do not govern the court’s exercise of its equitable powers.”).
We can consider agency law at most as a factor in determining whether an
attorney’s misconduct constitutes an extraordinary circumstance.7
7
The Majority views as contradictory the Dissent’s rejecting agency law as dispositive
yet considering agency law as a factor. See Maj. Op. at 27 n.4. But using factors to help apply
an undefined standard to the particulars of a case is logically sound and commonplace. For
example, a federal court deciding whether to transfer a case to another venue must determine
whether the transfer is “[f]or the convenience of parties and witnesses” and “in the interest of
62
Case: 12-14518 Date Filed: 02/24/2017 Page: 63 of 71
B. Goodman’s misconduct compels a case-specific inquiry.
Holland held that any attorney misconduct that exceeds garden-variety
negligence compels a case-specific inquiry into whether equitable tolling is
warranted. See Holland, 560 U.S. at 650–51, 130 S. Ct. at 2563. Goodman’s
misconduct exceeded garden-variety negligence. And a case-specific inquiry
reveals that Goodman’s misconduct merits equitably tolling the AEDPA
limitations period for Cadet.
1. Goodman’s misconduct exceeded garden-variety negligence.
Goodman’s misconduct involved a miscalculation of the limitations period,
an example of garden-variety negligence. See id. at 651–52, 130 S. Ct. at 2654
(citing Lawrence, 549 U.S. at 336, 127 S. Ct. at 1085). However, the misconduct
at issue here comprised not only Goodman’s miscalculation but also
(1) Goodman’s staunchly refusing, despite repeated inquiries from Cadet, to
research how to calculate the limitations period; (2) Goodman’s repeatedly
offering empty reassurances to Cadet that he, the “real lawyer,” had correctly
calculated the limitations period; and (3) Goodman’s discouraging Cadet from
justice.” See 28 U.S.C. § 1404(a). Neither standard is defined in § 1404(a). Courts have since
accumulated factors that courts can consider before deciding whether to transfer, factors such as
“the relative means of the parties” and “a forum’s familiarity with the governing law.” See, e.g.,
Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir. 2005). No one standard is
dispositive in determining whether the transfer is “[f]or the convenience of parties and
witnesses” and “in the interest of justice.” See § 1404(a).
63
Case: 12-14518 Date Filed: 02/24/2017 Page: 64 of 71
seeking a second opinion, even if from a “jailhouse lawyer.” As Goodman
recounted at an evidentiary hearing:
I convinced [Cadet], literally sat on the phone and
convinced him. Like I said, I can still hear [Cadet
saying] in my head, are you sure? Are you sure? Are
you sure? I remember that particular conversation and I
talked him out of it. I left him in a position where here’s
a person from Haiti who—who lost his life in a
fundamentally unfair way at trial, having to choose
between the jailhouse lawyers that he’s locked up with
and my advice. He chose my advice which, I admit in
open court, was wrong.
Transcript of Evidentiary Hearing at 29, Cadet v. Fla. Dep’t of Corr., No. 9:07-cv-
80758 (S.D. Fla. July 15, 2012). Goodman’s misconduct exceeded garden-variety
negligence.
2. A case-specific examination reveals that Cadet is entitled to
equitable tolling.
Goodman’s misconduct compels a case-specific examination, free of
categories and other mechanical rules rejected by the Supreme Court, of whether
Cadet is entitled to equitable tolling. See Holland, 560 U.S. at 650, 130 S. Ct.
at 2563. A case-specific examination of this circuit’s case law, agency law, and
professional responsibility principles reveals that Goodman’s misconduct merits
equitable tolling.
First, this circuit’s case law strongly favors equitably tolling the limitations
period. Holland instructed us to resolve questions of equity on a “case-by-case
64
Case: 12-14518 Date Filed: 02/24/2017 Page: 65 of 71
basis” but “in light of . . . precedent.” Id. Downs involved allegations similar to
the facts here. The allegations included:
[Downs’s] unequivocal, repeated demands that his
attorneys file his habeas petition; his close tracking of his
attorneys’ work and the applicable federal deadlines; and
his counsel’s overt deception in representing they had
filed a tolling petition in state court when they had not in
fact done so, thereby depriving him of several months of
his statutorily-guaranteed one-year federal limitations
period.
Downs, 520 F.3d at 1322. Although Downs’s attorneys filed his state habeas
petition before expiration of the federal habeas limitations period, we still
concluded that the one day in which to petition for federal habeas relief after the
conclusion of his state habeas petition “put [Downs, a prisoner,] in an untenable
position.” Id. We held that, “[a]ssuming Downs’[s] allegations are true, he has
shown the existence of extraordinary circumstances.” Id. at 1323.
Downs focused on the contrast between Downs’s “persistence” and his
attorneys’ “deceit and delay.” Id. at 1322. Such contrast exists here. Cadet
unequivocally and repeatedly demanded that Goodman verify the correct
limitations period; sought help from “jailhouse lawyers”; and was deceived by
Goodman into believing that Goodman, the “real lawyer,” had superior knowledge
of the limitations period than either Cadet or the jailhouse lawyers. This circuit’s
case law strongly favors equitably tolling the limitations period.
65
Case: 12-14518 Date Filed: 02/24/2017 Page: 66 of 71
Second, principles of agency law strongly favor equitably tolling the
AEDPA limitations period for Cadet. The Third Restatement of Agency states:
[N]otice of a fact that an agent knows or has reason to
know is not imputed to the principal if the agent acts
adversely to the principal in a transaction or matter,
intending to act solely for the agent’s own purposes or
those of another person.
Restatement (Third) Of Agency § 5.04 (2006); see also Restatement (Second) Of
Agency § 112 (1958). Goodman acted adversely to Cadet’s interest by refusing to
research the tolling issue, by offering false advice to Cadet, and by discouraging
Cadet from seeking advice from jailhouse lawyers. Thus the correct limitations
period—which the agent, Goodman, had “reason to know”—“is not imputed to the
principal,” Cadet. See Restatement (Third) Of Agency § 5.04.
Concluding that knowledge about the correct limitations period is imputed to
Cadet, the Majority does not dispute that the Goodman had reason to know about
the correct limitations period and that Goodman acted adversely to Cadet. Instead,
the Majority argues that Cadet failed to establish that Goodman’s misconduct was
“for the purpose of advancing his own interests or those of another person.” See
Maj. Op. at 28. However, imposing this burden, the Majority resorts to sources
that speak to general principles of agency law rather than those discussing an
attorney’s relationship with his client. This is because no burden exists for a client
66
Case: 12-14518 Date Filed: 02/24/2017 Page: 67 of 71
to establish an attorney’s selfish motive, which is assumed in the application of
agency law to a lawyer-client relationship.8
Indeed, the cases that the Majority cites so dearly in order to apply agency
law—Maples, Coleman, and Downs—contain no discussion of the offending
attorney’s motive. See generally Maples, 565 U.S. 266, 132 S. Ct. 912; Coleman
v. Thompson, 501 U.S. 722, 111 S. Ct. 2546 (1991); Downs, 520 F.3d 1311. The
cases offer no reason for the omission and appear to assume, based on the
particular facts of a case, that an attorney receives monetary or other benefit either
by retaining the client at issue or by gaining other clients.9 The former assumption
is true here. Goodman was able to retain Cadet as a client by advising Cadet
without any research and by constantly reassuring Cadet that Goodman possessed
superior knowledge. Goodman’s failure is not imputed to Cadet. The Majority’s
requiring Cadet to establish further Goodman’s selfish motive, perhaps with a fee
agreement or goodwill Goodman gained for his pro bono work, is imposing on
8
The Majority cites a case that might conceivably support the imposition of this burden.
See Maj. Op. at 30. However, the case—from another circuit—stated only that the client “does
not argue, and the record does not suggest, that [the attorney] permitted any interest or
consideration to interfere with his loyalty to” the client. See Towery v. Ryan, 673 F.3d 933, 942
(9th Cir. 2012). Even that case fails to evince a burden on a client to establish an attorney’s
selfish motive, especially one that is readily inferred from the record.
9
After imposing a novel burden—that a client must establish an attorney’s selfish
motive—the Majority tasks the Dissent with proving the absence of this burden in other cases.
Rather than entertaining this farcical request for the Dissent to prove a negative, the Dissent
considers the reason for the omission. In other words, the Dissent considers why these cases
might have chosen not to impose this burden.
67
Case: 12-14518 Date Filed: 02/24/2017 Page: 68 of 71
Cadet a novel burden unfounded in any case involving the application of agency
law to a lawyer-client relationship.10
Because Goodman had reason to know about the correct limitations period
and because Goodman acted adversely to Cadet, agency law strongly favors
equitably tolling the limitations period.
Finally, fundamental canons of professional responsibility strongly favor
equitably tolling the AEDPA limitations period for Cadet. Holland considered an
attorney’s violation of “fundamental canons of professional responsibility” as a
factor in determining whether his actions constituted an extraordinary
circumstance. 11 Holland, 560 U.S. at 652, 130 S. Ct. at 2564. These canons
10
This burden is especially onerous because Goodman is no longer Cadet’s attorney.
Because of Goodman’s misconduct during this appeal—misconduct unrelated to that which
resulted in Cadet’s untimely federal habeas petition—we have suspended Goodman from
practicing before this circuit. See In re Michael Steven Goodman, No. 11-1101 (11th Cir.
May 13, 2011). The United States District Court for the Southern District of Florida likewise
suspended Goodman from practicing before it. See In re Michael Steven Goodman, No. 2011-95
(S.D. Fla. Nov. 1, 2011).
Even if the Majority chooses to impose this burden, we should remand this case for
additional fact finding. “Ascertaining the motives with which an agent acted is often a
fact-intensive exercise.” Restatement (Third) Of Agency § 5.04 cmt. a.
11
In his Holland dissent, Justice Scalia, while criticizing the majority for “refus[ing] to
articulate an intelligible rule” governing equitable tolling, rejected the majority’s application of
fundamental canons of professional responsibility. See Holland, 560 U.S. at 670–71, 130 S. Ct.
at 2575 (Scalia, J., dissenting). He discredits this rule because it was proposed “by an ad hoc
group of legal-ethicist amici” and because of its similarity to Strickland’s holding that a
defendant’s right to counsel assumes the counsel’s adherence to “prevailing professional norms.”
See id. (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2065 (1984)). In
the realm of equity, however, no statutory language guides a court in creating a rule.
“Extraordinary circumstance,” “abandonment,” and “negligence” are each a judicial creation or
borrowed from a different area of law. It is within a court’s power to borrow from the wisdom of
amici and of other areas of law to determine a question of equity. Although not dispositive,
68
Case: 12-14518 Date Filed: 02/24/2017 Page: 69 of 71
included “perform[ing] reasonably competent legal work” and “communicat[ing]
with . . . clients.” Id.
Goodman failed “to perform reasonably competent legal work.” See id.;
ABA Model Rules of Prof’l Conduct r. 1.1. Despite never having filed a federal
habeas petition after representation in state post-conviction proceedings, Goodman
failed to perform any research on the AEDPA limitations period. Only after
Florida argued that Cadet’s federal habeas petition was time-barred did Goodman
log onto Westlaw for the first time to research how to calculate the limitations
period. See Tr. of Evid. Hr’g at 18–19. And despite this lack of experience and
knowledge, Goodman repeatedly advised Cadet on the limitations period.
Also, Goodman failed to communicate meaningfully with Cadet.
See Holland, 560 U.S. at 652, 130 S. Ct. at 2564; Model Rules r. 1.2 cmt. 2
(advising that, if a lawyer and a client disagree about “the means to be used to
accomplish the client’s objectives,” the lawyer “consult with the client and seek a
mutually acceptable resolution of the disagreement”). Although Cadet repeatedly
voiced concern that he would lose the opportunity to petition in federal court,
Goodman flippantly disregarded Cadet’s justifiable anxiety and the contrary advice
that Cadet had received. Goodman even went so far as to rebuke Cadet for
fundamental canons of professional responsibility guide us in determining whether an attorney’s
misconduct warrants equitable tolling of the limitations period for a federal habeas petition.
69
Case: 12-14518 Date Filed: 02/24/2017 Page: 70 of 71
contemplating advice contradicting his own. Fundamental canons of professional
responsibility strongly favor equitably tolling the limitations period.
III
Holland instructed us that, in determining whether to equitably toll the time
to file a federal habeas petition, we must avoid imposing a mechanical rule.
Disregarding this instruction, the Majority imposes the mechanical rule that
attorney negligence alone can never justify equitable tolling. The Majority’s plea
not to be misunderstood does not change the fact that its opinion directly
contravenes Holland. See Maj. Op. at 43 (“We do not wish to be
misunderstood.”); id. at 45 (“Despite our earnest desire not to be misunderstood,
the dissent misunderstands our decision . . . .”).
The “flexibility inherent in equitable procedure” allows us “to accord all the
relief necessary to correct particular injustices.” Holland, 560 U.S. at 650,
130 S. Ct. at 2563 (internal quotation marks omitted). Goodman’s deplorable
misconduct merits allowing Cadet extra time to file his federal habeas petition.
We must grant Cadet this equitable relief.
I respectfully dissent.
70
Case: 12-14518 Date Filed: 02/24/2017 Page: 71 of 71
ORDER
Opinions, containing substantial revisions, having been issued by the Court,
the petition for rehearing addressing the original panel opinion has effectively been
granted, and the grounds for the petition for rehearing en banc have effectively
been mooted. Because new opinions have been issued, the parties are free to file
petitions for rehearing and for rehearing en banc addressing this decision of the
Court, as explained by the new opinions, if they wish to do so. The time limits in
the rules of procedure will run from today’s date.1
1
The precedential effect of an opinion, whether an initial one or a superseding one on
rehearing, begins on the date it is issued, not on the later date that the mandate is issued in the
case. 11th Cir. R. 36, I.O.P. 2.
71