              Case: 17-14388     Date Filed: 07/22/2019    Page: 1 of 9


                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 17-14388
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 5:16-cv-00110-LC-CJK


RANDOM JACKSON,

                                                            Petitioner-Appellant,

                                        versus

SECRETARY, DEPARTMENT OF CORRECTIONS,

                                                            Respondent-Appellee.
                           ________________________

                    Appeal from the United States District Court
                        for the Northern District of Florida
                          ________________________

                                   (July 22, 2019)

Before WILSON, GRANT, and HULL, Circuit Judges.

PER CURIAM:

      While his state postconviction appeal was pending in the Florida courts,

Random Jackson’s attorney was disbarred. Jackson never learned about the denial

of his state appeal until the time to file a federal habeas petition had come and
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gone. On appeal, he argues that the district court erred in dismissing his petition as

untimely because it should have equitably tolled the Antiterrorism and Effective

Death Penalty Act’s limitations period. But because Jackson has failed to

demonstrate reasonable diligence, we affirm.

                                                 I.

       A Florida jury convicted Random Jackson of first-degree murder and he was

sentenced to life imprisonment. The Florida First District Court of Appeal

affirmed the judgment, and rehearing was denied. Jackson did not file a petition

for writ of certiorari with the United States Supreme Court, and upon the

expiration of his time to do so, his conviction became final on December 12, 2011.

See Akins v. United States, 204 F.3d 1086, 1089 n.1 (11th Cir. 2000).1

       On December 5, 2012—shortly before the one-year limitations period for

federal habeas relief would have been expired—Jackson filed a state-court motion

for postconviction relief. Jackson retained Bernard Daley, a Florida attorney, to

represent him for any appeal of that postconviction motion. 2 Jackson alleges that

he and Daley “specifically discussed that I had time left to pursue federal habeas


1
 The 90-day period to file a petition for writ of certiorari would have expired on December 11,
but because December 11 was a Sunday, Jackson had until Monday, December 12 to file his
petition. See Sup. Ct. R. 13.1; id. 30.1.
2
  Jackson’s brief on appeal suggests that Daley was hired to file the initial postconviction motion,
but Jackson’s habeas petition indicates that Daley was hired after the initial motion had been
filed in order to represent Jackson on appeal. This discrepancy is immaterial.


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relief (if necessary) and we specifically asked if he would represent me in federal

habeas proceedings (if necessary) and he agreed that he would—and he promised

to timely file a federal habeas petition should I be unsuccessful in my [state

postconviction] proceeding.” Jackson’s motion for postconviction relief was

denied, and Daley filed a state-court appeal.

         On April 30, 2015, while Jackson’s state appeal was pending, Daley sent

Jackson a letter explaining that he was “having some issues” with the Florida bar;

in fact, Daley had been disbarred on April 24.3 The letter stated that another

attorney, Wayne Mitchell, would take over Jackson’s case. Despite his

disbarment, Daley never withdrew as the attorney of record in Jackson’s state

postconviction appeal. See Jackson v. State, 174 So. 3d 998 (Fla. Dist. Ct. App.

2015) (table) (listing Daley as Jackson’s attorney). So when the Florida courts

denied that appeal on September 28, 2015,4 Daley—but not Jackson—presumably

received the notice. Jackson alleges that Daley never told him about the denial.

         Instead, Jackson learned that his state appeal had been denied when his

mother, who had checked the online docket out of curiosity, told him on February

13, 2016. He sought to retain other counsel, having never heard from Wayne



3
    On December 12, 2015, Daley sent another letter to Jackson enclosing the disbarment order.
4
  The Florida court’s mandate issued on October 14, 2015, after the 15-day deadline for a motion
for rehearing had expired. See Fla. R. App. P. 9.330(a).


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Mitchell. On February 22, 5 Daley sent Jackson another letter to offer “some

clarification as to my April 30th, 2015 letter”:

       In that letter I made reference to Wayne Mitchell as taking over your case
       and representing you in any post-conviction matters. This was a
       misstatement; Mr. Mitchell will not automatically be assuming any of my
       prior cases, including your case.

To this day, no one named “Wayne Mitchell” (there are apparently two Florida

attorneys by that name) has communicated with Jackson about his case.

       Jackson’s newly retained counsel filed a federal habeas petition on April 11,

2016. The state asked the district court to dismiss that petition as untimely. A

magistrate judge issued a report and recommendation finding that Jackson had

failed to exercise reasonable diligence—first by failing to check in with his

attorney or to ask about the status of his appeal, and second by waiting nearly two

months to file a federal habeas petition even after learning on February 13 that his

appeal had been denied. The magistrate judge reasoned that “[n]othing prevented

[Jackson] from immediately filing his federal habeas petition on his own once he

learned his postconviction appeal concluded,” noting that Jackson “admits that his

habeas claims are drawn from his prior counseled state court pleadings.” The

district court adopted the report and recommendation.



5
  The letter is misdated as February 22, 2015, but the content of the letter clearly demonstrates
that it was sent in 2016.


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      A judge of this Court granted a certificate of appealability, limited to one

issue: “Whether the district court erred in concluding that Mr. Jackson is not

entitled to equitable tolling of the one-year statute of limitations under the

Antiterrorism and Effective Death Penalty Act of 1996.”

                                          II.

      “We review de novo the district court’s dismissal of a state prisoner’s

petition for writ of habeas corpus,” including “the determination that the petition

was time-barred under the Antiterrorism and Effective Death Penalty Act’s

(‘AEDPA’) limitation period.” Arthur v. Allen, 452 F.3d 1234, 1243 (11th Cir.

2006). But “[b]ecause the question of a party’s diligence is a question of fact, we

review it, and other factual findings, for clear error, and will affirm unless the

record lacks substantial evidence to support that determination.” Id. (internal

quotation marks and citation omitted).

                                          III.

      The Antiterrorism and Effective Death Penalty Act sets a one-year

limitations period for state prisoners to file a federal habeas petition. 28 U.S.C.

§ 2244(d)(1). That period begins to run on the latest of several listed events—here,

“the date on which the judgment became final by the conclusion of direct review or

the expiration of the time for seeking such review.” Id. But it is tolled for the

“time during which a properly filed application for State post-conviction or other


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collateral review with respect to the pertinent judgment or claim is pending.” Id.

§ 2244(d)(2).

      There is no question that, without equitable tolling, Jackson’s petition was

untimely. His conviction became final on December 12, 2011. So the clock

started ticking on December 13, 2011, and—absent tolling—would have expired

on December 13, 2012. See San Martin v. McNeil, 633 F.3d 1257, 1266 (11th Cir.

2011) (limitations period begins to run on day after triggering event); Downs v.

McNeil, 520 F.3d 1311, 1318 (11th Cir. 2008) (under “anniversary method,”

limitations period expires on one-year anniversary of the date it began to run).

Jackson filed a state-court motion for postconviction relief on December 5, 2012,

which stopped the clock but left him with little time to file a federal habeas petition

once it eventually restarted. After the Florida courts denied Jackson’s

postconviction appeal on September 28, 2015 and issued the mandate on October

14, Jackson had just eight days to file a federal habeas petition. He failed to do so

until April 11, 2016, rendering his petition untimely.

      Jackson acknowledges this, but claims that he is entitled to equitable tolling

because his attorney abandoned him. A “petitioner is entitled to equitable tolling

only if he shows (1) that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way and prevented timely filing.”

Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks and


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citation omitted). Attorney abandonment qualifies as an “extraordinary

circumstance.” Thomas v. Fla. Att’y Gen., 795 F.3d 1286, 1291–94 (11th Cir.

2015); see also Maples v. Thomas, 565 U.S. 266 (2012) (attorney abandonment

constitutes “cause” to excuse procedural default). But even where extraordinary

circumstances exist, a habeas petitioner still has the burden to show reasonable

diligence. San Martin, 633 F.3d at 1268 (burden is on petitioner); see also Melson

v. Comm’r, Ala. Dep’t of Corr., 713 F.3d 1086, 1089–90 (11th Cir. 2013) (per

curiam) (rejecting equitable tolling claim based on lack of reasonable diligence

without assessing whether extraordinary circumstances existed).

      The district court, in adopting the report and recommendation, found that

Jackson failed to demonstrate reasonable diligence between April 30, 2015, when

Daley informed him that Mitchell would be taking over the case, and February 13,

2016, when Jackson learned through his mother that his appeal had been denied.

According to the district court, Jackson should have taken “independent steps to

check on the status of his appeal,” such as contacting Mitchell or the Florida

courts. Jackson points out that the state’s own guidance instructs clients to direct

case-status inquiries to their attorneys rather than contacting the court directly, and

that state appeals routinely take over a year to be resolved. But that does not

explain why Jackson failed to contact Mitchell, who Jackson alleges “never

communicated with [him] in any form,” even after months of radio silence.


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      At any rate, even if we agreed with Jackson that he was diligent up until

February 13, his claim would still fail because he has failed to demonstrate

reasonable diligence after learning of his predicament. He knew that he had

precious little time to file a federal habeas petition after his state appeal was

denied, having “specifically discussed” the timeliness issue with Daley. He

learned on February 13 that his appeal had been denied, and if that left any doubt

that he had been abandoned, Daley’s February 22 letter made it explicit. Jackson

nonetheless failed to file his federal habeas petition until nearly two months later,

on April 11—despite the fact that “his habeas claims are drawn from his prior

counseled state court pleadings.” The district court therefore did not clearly err in

finding a lack of diligence.

      True enough, the standard is “reasonable diligence,” not “maximum feasible

diligence.” Holland, 560 U.S. at 653 (internal quotation marks and citations

omitted). But here, Jackson—who bore the burden—has not put forward any

theory of diligence. His argument on appeal is based on a convoluted

counterfactual about what would have happened if Daley had not abandoned him:

according to Jackson, if Daley had told him about the state court’s decision on

September 28, he would have filed a motion for rehearing on October 13, the

fifteen-day deadline for doing so; the state court probably would have taken about

30 days to deny that motion (although “there is no way to know exactly how long


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it would have taken,” Jackson speculates that it would have been around the same

amount of time—33 days—that the courts took to deny rehearing on his direct

appeal); and then the mandate would not have issued for another 15 days after the

rehearing denial. All told, Jackson says, if everything had gone as planned, he

would have had 63 days after the September 28 opinion in which to file his federal

habeas petition. And because he filed his petition on April 11, which was just 58

days after learning on February 13 that his appeal had been denied, Jackson says he

is entitled to equitable tolling.

       Jackson’s hypothetical fails to address his burden: to show that he was

reasonably diligent under the actual circumstances of his case, not to show what

might have happened if Daley had never abandoned him. And because he has

failed to put forth any facts demonstrating reasonable diligence after February 13,

it was not clear error for the district court to find a lack of diligence.

                                      *     *      *

       Because Jackson has failed to demonstrate that he diligently pursued his

rights, the district court’s dismissal of his federal habeas petition as untimely is

AFFIRMED.




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