[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-11822 NOVEMBER 1, 2011
Non-Argument Calendar JOHN LEY
CLERK
________________________
D. C. Docket No. 07-80758-CV-DTKH
ERNEST CADET,
Petitioner-Appellant,
versus
STATE OF FLORIDA DEPARTMENT OF
CORRECTIONS,
Edwin G. Buss, Secretary,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 1, 2011)
Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Petitioner, Ernest Cadet, is serving a life sentence in a Florida prison, having
been convicted, in May of 2000, of sexual battery of a child less than twelve years
of age and simply battery. On August 23, 2007, represented by counsel, Petitioner
petitioned the United States District Court for the Southern District of Florida for a
writ of habeas corpus pursuant to 22 U.S.C. § 2254. On January 30, 2009, the
district court denied the petition as time-barred by the statute of limitations of the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L.No.
104-132, 110 Stat. 1214 (1996). Petitioner filed a notice of appeal, and the district
court issued certificate of appealability, thus allowing an appeal to go forward.
The certificate cites this issue:
the court finds a fairly debatable issue as to whether petitioner is in
procedural default on his claims, and specifically finds a debatable
issue on the question of whether he has demonstrated serious attorney
misconduct as to merit equitable tolling of some portion of the
limitations period for filing his federal habeas petition.
The district court’s interpretation and application of the statute of limitations
applicable here is a question of law that we review de novo. Hepburn v. Moore,
215 F.3d 1208, 1209 (11th Cir. 2000). We likewise review de novo the district
court’s decision regarding the application of equitable tolling. San Martin v.
McNeil, 633 F.3d 1257, 1265 (11th Cir. 2011), petition for cert. filed, (U.S. May
20, 2011) (No. 10-10678).
2
The AEDPA imposes a one-year statute of limitations for the filing of §
2254 petitions. 28 U.S.C. § 2244(d)(1). Once the statute of limitations is
triggered, it can be tolled in two ways. See, e.g., Spottsville v. Terry, 476 F.3d
1241, 1243, 1245-46 (11th Cir. 2007). It can be tolled while state post-conviction
actions are pending, pursuant to 28 U.S.C. § 2244(d)(2). And it can be tolled
under the doctrine of equitable tolling; that is what Petitioner seeks here. Tolling
can occur based on extraordinary circumstances that are both beyond the
petitioner’s control and unavoidable even with diligence. Sandvik v. United States,
177 F.3d 1269, 1271 (11th Cir. 1999).
To establish equitable tolling, the petitioner must show: (i) that he has been
pursuing his rights diligently, and (ii) that some extraordinary circumstance stood
in his way and prevented timely filing. Holland v. Florida, 560 U. S. ___, ___,
130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010), rev’g 539 F.3d 1334 (11th Cir.
2008); San Martin, 633 F.3d at 1268. Equitable tolling is an extraordinary remedy
that is limited to rare and exceptional circumstances and typically applied
sparingly. Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009). A mistake by
counsel in calculating a limitations period is, standing alone, insufficient to justify
equitable tolling. Lawrence v. Florida, 549 U.S. 327, 336-37, 127 S.Ct. 1079,
1085, 166 L.Ed.2d 924 (2007).
3
In Holland, we held that attorney misconduct, even if it is negligent or
grossly negligent, cannot constitute the type of egregious attorney misconduct that
would warrant equitable tolling unless the petitioner offers proof of bad faith,
dishonesty, divided loyalty, mental impairment or similar circumstances. 539 F.3d
at 1339. In Melson, relying on our decision in Holland, we held that equitable
tolling was not warranted where the petitioner’s attorneys missed deadlines and
failed to communicate with the petitioner about the status of the case. Melson v.
Allen, 548 F.3d 993, 1001 (11th Cir. 2008), vacated, 130 S.Ct. 3491 (2010).
The Supreme Court subsequently reversed our decision in Holland, holding
that the test we employed was too rigid, and that cases involving anything other
than a “garden variety” claim of excusable neglect must be evaluated on a case-by-
case basis. Holland, 560 U.S. at ___, 130 S.Ct. at 2563-64. One week later, the
Supreme Court vacated our opinion in Melson and remanded for further
consideration in light of its opinion in Holland. Melson, 561 U.S. at ___, 130 S.Ct.
at 3491-92. We subsequently remanded both cases to the respective district courts
for further proceedings consistent with the Supreme Court’s instructions. Holland
v. State, 613 F.3d 1053 (11th Cir. 2010); Melson v. Allen, 611 F.3d 1380 (11th Cir.
2010).
4
Upon careful review of the record and the parties’ briefs, we conclude that
the district court’s determination—that the misconduct by Petitioner’s attorney did
not rise to the level of extraordinary circumstances—was not based on the correct
standard as set forth in Holland. See 560 U.S. at ___, 130 S.Ct. at 2563-64.
Accordingly, we vacate the district court’s judgment and remand the case for
consideration of whether the circumstances present in this case rise to the level of
extraordinary circumstances under the appropriate standard.
VACATED AND REMANDED.
5