*1 Before ED CARNES, Chief Judge, WILSON and FAY, Circuit Judges.
ED CARNES, Chief Judge:
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,
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,
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 *4 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,
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 *5 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 *6 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.”
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 *8 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
*9
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,
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,
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,
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,
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,
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.”
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,
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,
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,
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,
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,
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,
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,
*18
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,
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,
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,
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,
Even though the Supreme Court in Holland expressly declined to decide
whether Holland himself was entitled to equitable tolling,
however, the Court pointed out that the attorney had essentially abandoned
Holland. See, e.g.,
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,
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,
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.,
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,
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
*24
context. Dissenting Opn. at 51–52; see Holland,
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
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,
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,
(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 *27 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,
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
*29
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,
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.”
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,
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. *31 (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.,
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
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,
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.
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.
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,
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
*36
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,
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,
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
*37
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,
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,
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,
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,
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
*41
attributable to the client.” Holland,
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,
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.
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,
Circumstances other than abandonment can meet the extraordinary
circumstance element for equitable tolling. Among them are our pre-Holland
*44
circumstances of bad faith, dishonesty, divided loyalty, and mental impairment.
See Thomas v. Att’y Gen.,
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 *45 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.
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,
AFFIRMED. *47 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
*48
Majority in concluding—in defiance of
Holland v. Florida
,
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
,
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
,
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”).
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
,
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
,
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
,
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 *51 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
,
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 negligence [2] —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
new situations that demand equitable intervention, and to accord all the relief necessary to correct particular injustices.
Holland
,
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
*53
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
,
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
*54
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
,
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
*55
instructed us to avoid the imposition of a mechanical rule and to grant relief on a
case-by-case basis.
See Holland
,
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
,
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
*56
entertained a prisoner’s argument that his attorney “essentially abandoned him.”
See Holland
,
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,
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
,
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
,
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
,
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
,
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.
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
,
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
,
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.”).
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
,
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
,
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,
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
,
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 *65 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
,
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.
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 *67 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
,
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
,
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
,
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
,
I respectfully dissent.
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]
Notes
[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,
[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.
[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,
[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.”
[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,
[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,
[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.
[8] We said in Lugo v. Sec’y, Fla. Dep’t of Corr.,
[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.”
[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.
,
[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,
[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
[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.
[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.
[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.
[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
[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
,
[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.
[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
,
[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.