United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY UNITED STATES DISTRICT JUDGE
was ordered (Doc. 4) to show cause why his application under
Section 2254 is not time-barred. The earlier order explains
the requirements for showing entitlement both to equitable
tolling of the limitation and to actual innocence. In
response Tillman admits no entitlement to the actual
innocence exception to the limitation but argues entitlement
to equitable tolling. (Doc. 7 at 5)
one-year limitation established in Section 2244(d) is not
jurisdictional and, as a consequence, “is subject to
equitable tolling in appropriate cases.” Holland v.
Florida, 560 U.S. 631, 645 (2010). “Generally, a
litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005). See Jones v.
United States, 304 F.3d 1035, 1040 (11th Cir. 2002),
cert. denied, 538 U.S. 947 (2003). Tillman must meet
both requirements, and he controls the first requirement -
due diligence - but not the second requirement -
extraordinary circumstances. The failure to meet either
requirement precludes equitable tolling. “The diligence
required for equitable tolling purposes is ‘reasonable
diligence, ' not ‘maximum feasible diligence,
'” Holland, 560 U.S. at 653 (internal
quotations and citations omitted), and an applicant's
“lack of diligence precludes equity's
operation.” 544 U.S. at 419. To satisfy the second
requirement, Tillman must show extraordinary circumstances
both beyond his control and unavoidable even with diligence.
Sandvik v. United States, 177 F.3d 1269, 1271 (11th
Cir. 1999). See cases collected in Harper v. Ercole,
648 F.3d 132, 137 (2nd Cir. 2011) (“To secure equitable
tolling, it is not enough for a party to show that he
experienced extraordinary circumstances. He must further
demonstrate that those circumstances caused him to miss the
original filing deadline.”). “[E]quitable tolling
is an extraordinary remedy ‘limited to rare and
exceptional circumstances and typically applied
sparingly.'” Cadet v. Fla. Dep't of
Corr., 853 F.3d 1216, 1221 (11th Cir. 2017) (quoting
Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir.
he can meet the due diligence requirement, Tillman fails to
show proof of extraordinary circumstances. First, Tillman
argues that the applicable limitation was tolled by the Rule
3.850 motion for post-conviction relief even though the
motion failed to contain the required oath. As explained in
the earlier order (Doc. 4 at 3-4), this argument fails under
Hurley v. Moore, 233 F.3d 1295, 1298 (11th Cir.
2000) (“Because Hurley's state post-conviction
motion was not properly filed according to the state
court's application of the written oath requirement, the
one-year statute of limitations under the AEDPA is not
tolled.”), cert. Denied, 532 U.S. 1013 (2001).
Tillman argues that his retained post-conviction counsel
rendered ineffective assistance by not timely re-submitting a
post-conviction motion with the required oath. The alleged
delay in re-submitting an amended Rule 3.850 motion proves no
entitlement to equitable tolling because attorney negligence
is not a basis for equitable tolling. Lawrence v.
Florida, 549 U.S. 327, 336S37 (2007)
(“[C]ounsel's mistake in miscalculating the
limitations period . . . is simply not sufficient to warrant
equitable tolling, particularly in the postconviction context
where prisoners have no constitutional right to
counsel.”). Attorney negligence in calculating a filing
deadline is not entitled to equitable tolling, as Damren
v. Florida, 776 F.3d 816, 821 (11th Cir. 2015),
cert. denied, 137 S.Ct. 830 (2017), explains:
Run-of-the-mill claims of excusable neglect by an attorney,
“such as a simple miscalculation that leads a lawyer to
miss a filing deadline, ” do not constitute the kind of
“extraordinary circumstance” that is necessary to
merit equitable tolling. Holland, 560 U.S. at
651-52, 130 S.Ct. at 2564 (quotation marks omitted). Indeed,
this court has recently held that attorney negligence,
however egregious, will never qualify as an
“extraordinary circumstance” unless the
negligence rises to the level of actual or effective
abandonment of the client. Cadet, 742 F.3d at 481.
See also Helton v. Sec'y, Dep't of Corr.,
259 F.3d 1310, 1313 (11th Cir. 2001), cert. denied,
535 U.S. 1080 (2002), Steed v. Head, 219 F.3d 1298,
1300 (11th Cir. 2000), and Sandvik v. United States,
177 F.3d at 1271-72.
the application for the writ of habeas corpus is DISMISSED as
time-barred. The clerk must enter a judgment ...