[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
___________________________ FILED
U.S. COURT OF APPEALS
No. 11-10985 ELEVENTH CIRCUIT
NOVEMBER 29, 2011
Non-Argument Calendar
JOHN LEY
__________________________
CLERK
D.C. Docket No. 0:10-cv-60772-DLG
JAMES POVEROMO,
Petitioner-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
___________________
Appeal from the United States District Court
for the Southern District of Florida
__________________
(November 29, 2011)
Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.
PER CURIAM:
The district court denied James Poveromo’s petition, brought under
28
U.S.C. § 2254, for habeas corpus relief from his Florida convictions for
aggravated battery, burglary of a dwelling while armed with a firearm, and
carrying a concealed firearm. We granted a certificate of appealability as to one
issue: whether the district court erred, in light of Holland v. Florida, 560 U.S. ___,
130 S.Ct. 2549,
177 L.Ed.2d 130 (2010), in finding that Poveromo was not
entitled to equitable tolling (to excuse the untimely filing of is petition) because
attorney negligence cannot serve as a basis for equitable tolling.
Under
28 U.S.C. § 2244(d), a petitioner has one year in which to file a §
2254 habeas petition. The year begins to run on the latest of four triggering
events.
28 U.S.C. § 2244(d)(1). The triggering event relevant to this case is “the
date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.”
28 U.S.C. § 2244(d)(1)(A). After
entry of a final judgment of conviction by a state court, the defendant has 90 days
to petition the U.S. Supreme Court for a writ of certiorari. Sup.Ct.R. 13.1. If no
such petition is filed, the judgment is considered final for purposes of §
2244(d)(1)(A) at the expiration of that 90-day window. Chavers v. Sec’y, Fla.
Dept. of Corr.,
468 F.3d 1273, 1274-75 (11th Cir. 2006). The one-year limitation
period for filing a § 2254 petition is tolled during times in which a properly filed
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application for state post-conviction relief is pending.
28 U.S.C. § 2244(d)(2).
However, a state application filed after the § 2244(d) limitations period has
already run does not toll, as there is no limitations period remaining to be tolled.
Webster v. Moore,
199 F.3d 1256, 1259 (11th Cir. 2000).
Equitable tolling applies only where the litigant satisfies his burden of
establishing “(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.”
Id.,
560 U.S. at ___, 130 St.Ct. at 2562 (quotation omitted); see Arthur v. Allen,
452
F.3d 1234, 1252 (11th Cir. 2006) (holding that a petitioner must show both
extraordinary circumstances and diligence in order to prevail). The diligence
prong requires “reasonable diligence,” rather than “maximum feasible diligence.”
Holland at ___,
130 S.Ct. at 2565 (quotations omitted).
Under the former law of this circuit, attorney negligence could never serve
as a basis for equitable tolling. Holland v. Florida,
539 F.3d 1334, 1339 (11th Cir.
2008). The Supreme Court rejected this view in Holland, calling it “overly rigid”
that an attorney’s gross negligence cannot warrant tolling absent bad faith,
dishonesty, divided loyalty, or mental impairment. Holland, 560 U.S. at ___,
130
S.Ct. at 2563-65. The Court held that while a “garden variety claim of excusable
neglect,” such as an attorney’s “simple miscalculation” that results in a missed
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filing deadline, does not warrant equitable tolling, “serious instances of attorney
misconduct” could.
Id. at ___,
130 S.Ct. at 2564 (quotations omitted).
A review of the district court’s decision reveals that it erred in adopting the
magistrate judge’s report and recommendation, which stated that “the Eleventh
Circuit has repeatedly held that attorney negligence is not a basis for equitable
tolling.” Holland expressly rejected that rule, and it was improper for the district
court to rely upon this court’s pre-Holland precedent. The proper analysis is to
determine whether the facts show garden variety attorney negligence or serious
attorney misconduct. Furthermore, the magistrate judge noted that Poveromo had
not alleged that Poveromo’s attorney lied to or misled him, relying again on our
old rules. The magistrate judge also failed to consider Poveromo’s father’s
affidavit, which mentioned repeated requests to the attorney that he file a Fla. R.
Crim. P. § 3.850 motion before the federal limitations period ran, the sort of fact
that the Supreme Court in Holland found relevant to both prongs of the equitable
tolling analysis. Accordingly, we VACATE the dismssal of Poveromo’s petition
and REMAND the case to the district court with the instruction that it conduct the
proper equitable tolling analysis.
SO ORDERED.
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