                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 16a0139p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


 STEVEN BRADLEY GILES,                                   ┐
                                Petitioner-Appellant,    │
                                                         │
                                                         │
        v.                                                >      No. 14-6494
                                                         │
                                                         │
 GARY BECKSTROM, Warden,                                 │
                               Respondent-Appellee.      │
                                                         ┘
                         Appeal from the United States District Court
                       for the Western District of Kentucky at Paducah.
                    No. 5:14-cv-00085—Thomas B. Russell, District Judge.

                               Decided and Filed: June 15, 2016

          Before: COLE, Chief Judge; DAUGHTREY and DONALD, Circuit Judges.

                                      _________________

                                          COUNSEL

ON BRIEF: Krista A. Donal, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange,
Kentucky, for Petitioner. Perry T. Ryan, OFFICE OF THE KENTUCKY ATTORNEY
GENERAL, Frankfort, Kentucky, for Respondent.

                                      _________________

                                           OPINION
                                      _________________

       MARTHA CRAIG DAUGHTREY, Circuit Judge. In this federal habeas case, we are
asked to determine when the one-year statute of limitations for filing a petition under 28 U.S.C.
§ 2244(d)(1)(A) began to run against petitioner Steven Bradley Giles, a Kentucky state prisoner.
If Kentucky Rule of Civil Procedure 76.30 controls the calculation, Giles’s federal habeas




                                                1
No. 14-6494                                 Giles v. Beckstrom                                        Page 2


petition was timely filed. But the district court interpreted United States Supreme Court Rule 13
as controlling the dispute and dismissed the petition as untimely.

         Ordinarily, the one-year calculation would not present a problem. The limitations period
would be triggered following completion of a prisoner’s direct appeal, either by the date on
which a timely petition for certiorari was denied by the United States Supreme Court or, if no
certiorari petition was filed, 90 days from entry of the state court’s judgment when the time to
file such a petition expired. The question in this case is when the 90 days begins to run under
Kentucky Rule 76.30(2)(a), which makes a Kentucky Supreme Court order or opinion “final”
21 days after it is issued, in order to allow time for a possible petition to rehear. The district
court held that delayed finality under Kentucky’s procedure did not entitle Giles to an additional
21 days beyond the normal one-year limitations period. As a result, the district court held, his
federal habeas petition was not timely filed. The court also determined that there was no basis
for equitable tolling. We agree, and we therefore affirm the district court's order dismissing
Giles’s habeas action.

         Under the Antiterrorism and Effective Death Penalty Act (AEDPA), the one-year statute
of limitations for filing a federal habeas petition begins to run from the latest of four dates—in
this case “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) (emphasis added).1
As the Supreme Court explained in Gonzalez v. Thaler, that provision consists of “two prongs”:




         1
           Pursuant to 28 U.S.C § 2244(d)(1), the limitations period for federal habeas petitions runs from the latest
of the following four dates: (A) “the date on which the judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review”; (B) “the date on which the impediment to filing an application
created by State action . . . is removed”; (C) “the date on which the constitutional right asserted was initially
recognized by the Supreme Court”; or (D) “the date on which the factual predicate of the claim . . . could have been
discovered through the exercise of due diligence.” 28 U.S.C § 2244(d)(1)(A)-(D). The only relevant provision here
is § 2244(d)(1)(A).
No. 14-6494                             Giles v. Beckstrom                                  Page 3


         Each prong—the “conclusion of direct review” and the “expiration of the time for
         seeking such review”—relates to a distinct category of petitioners. For petitioners
         who pursue direct review all the way to this Court, the judgment becomes final at
         the “conclusion of direct review”—when this Court affirms a conviction on the
         merits or denies a petition for certiorari. For all other petitioners, the judgment
         becomes final at the “expiration of the time for seeking such review”—when the
         time for pursuing direct review in this Court, or in state court, expires.

__ U.S. __, 132 S.Ct. 641, 653-54 (2012) (discussing 28 U.S.C. § 2244(d)(1)(A)).

         In state criminal cases, such as this one, the time to file a petition for a writ of certiorari is
“prescribed by rules of the Supreme Court.” 28 U.S.C. § 2101(d). In turn, Supreme Court Rule
13.3 allows a petitioner 90 days from “the entry of the judgment or order sought to be reviewed”
to file a timely petition for certiorari. Sup. Ct. R. 13.3. The central issue in this case is whether
“the date of the entry of the judgment or order” in Rule 13.3 should be interpreted to refer to the
date on which the Kentucky Supreme Court issued its opinion and order affirming Giles’s
conviction, or to the later date on which the judgment became “final” under Kentucky Rule
76.30.

         The relevant portions of Kentucky Rule of Civil Procedure 76.30, applicable to both civil
and criminal appeals in Kentucky, are as follows:

         (a) An opinion of the Supreme Court becomes final on the 21st day after the date
             of its rendition unless a petition [for rehearing] has been timely filed or an
             extension of time has been granted for that purpose.

                                                   ***
         (e) When an opinion has become final, the clerk of the appellate court that
         rendered it shall . . . note the filing on the proper docket.

                                                   ***
         (f) No mandate shall be required to effectuate the final decision of an appellate
         court, whether entered by order or by opinion.

Ky. R. of Civ. P. 76.30(2)(a),(e),(f); see also Ky. R. Crim. P. 12.02 (applying Kentucky Rule of
Civil Procedure 76 to criminal actions).

         Giles was convicted of second-degree manslaughter in Kentucky state court in 2007 and
was sentenced to 15 years’ imprisonment. After the Kentucky Court of Appeals affirmed his
No. 14-6494                          Giles v. Beckstrom                               Page 4


conviction, Giles appealed to the Supreme Court of Kentucky, which likewise affirmed his
conviction in an opinion dated October 21, 2010, as indicated on the court’s docket on that same
day. Under Kentucky Rule 76.30(2)(a), the opinion was considered final for state-law purposes
21 days later on November 12, 2010, as reflected on the docket by a notation labeled “finality.”

       Giles did not file a petition for certiorari in the United States Supreme Court, although he
had 90 days in which to do so. That 90-day period, measured from state court’s decision on
October 21, 2010, ended on January 19, 2011. Instead, Giles filed a post-conviction challenge to
his conviction in state court on February 23, 2011, at which point 34 days of the one-year
limitations period for his federal habeas petition had elapsed.        The parties agree that the
limitations period was tolled while Giles’s post-conviction action was pending in state court,
leaving 331 days yet to run. His motion to vacate the judgment of conviction in his case was
denied by the trial court; the Kentucky Court of Appeals affirmed the denial; and the state
Supreme Court denied discretionary review on May 15, 2013. On May 16, 2013, the limitations
period began to run again, see Fed. R. Civ. P. 6(a), and expired 331 days later, on April 12, 2014.
Because April 12 was a Saturday, Giles had until Monday, April 14, 2014, to file his petition.
See Fed. R. Civ. P. 6(a)(1)(c).

       On May 1, 2014, Giles filed his current habeas petition in federal court, claiming
ineffective assistance of counsel. The warden moved to dismiss Giles’s habeas petition as
untimely, pointing out that the statute of limitations made the habeas petition due no later than
April 12, 2014. Giles resisted the motion to dismiss, contending that the date on which the state
court judgment became “final” (November 12, 2010) was the date that triggered the limitations
period; that the limitations period did not expire until May 2, the day after his habeas petition
was filed; and that his petition was therefore timely. The district court agreed with the warden,
concluding that Giles’s petition was untimely and ruling that equitable tolling was not
appropriate. Giles now appeals that decision.

       The timeliness of Giles’s federal habeas petition depends on whether “the date of entry of
the judgment or order,” identified in Supreme Court Rule 13.3 as triggering the time to file a
certiorari petition, refers to the date that the Kentucky Supreme Court issued its opinion or to the
date that the decision was noted on the court’s docket as “final.” Giles argues on appeal that the
No. 14-6494                                 Giles v. Beckstrom                                         Page 5


latter date controls, relying principally on Palmer v. Commonwealth, 3 S.W.3d 763 (Ky. Ct. App.
1999), in which the state appeals court held that the limitations period for filing a state post-
conviction action runs from the date of finality of the judgment on direct appeal, not from entry
of the trial court’s judgment of conviction. Id. at 764-65. But the choice that was dispositive in
Palmer is not the choice we face here, making that case inapposite from Giles’s. Instead, we
look to Rule 13.3:

         The time to file a petition for a writ of certiorari runs from the date of entry of the
         judgment or order sought to be reviewed, and not from the issuance date of the
         mandate (or its equivalent under local practice).

Sup. Ct. R. 13.3 (emphasis added).

         Two conclusions quickly become apparent from the language of Rule 13.3. First, the
date to file is related to the “order sought to be reviewed,” which in this case quite obviously
would be the Kentucky Supreme Court’s opinion and order, not the one-word notation of finality
added to the docket three weeks later.                Second, Kentucky’s appellate procedure formerly
included the issuance of a mandate, but that requirement was eliminated by a 1981 amendment
and replaced with entry of the notation of finality 21 days after the last opinion or order in the
case. Compare Ky. R. Civ. P. 76.30 (1978) with Ky. R. Civ. P. 76.30 (1981). Because the
language of the finality provision closely tracks that of the mandate provision that it replaced,2
we conclude that the Kentucky rule on delayed finality replaced the formalistic device of the
mandate. See Hutson v. Commonwealth, 215 S.W.3d 708, 713 (Ky. Ct. App. 2006) (explaining
that the “finality” rule has the same function as the “mandate” requirement). As a result, it is
clear that the notation of finality is the “equivalent [of a mandate] under local practice” and has
no relevance to the calculation of time for filing a certiorari petition under Supreme Court Rule
13.3. It follows that Giles’s petition for habeas relief was filed 17 days too late.



         2
          For example, the 1981 version of Rule 76.30 states, in relevant part, “An opinion of the Supreme Court
becomes final on the 21st day after the date of its rendition unless a petition under Rule 76.32 has been timely filed
or an extension of time has been granted for that purpose.” Ky. R. Civ. P. 76.30(2)(a) (1981). The 1978 version of
Rule 76.30 states, in relevant part, “A mandate of the Supreme Court shall be issued on the 21st day after the date its
opinion was rendered unless a petition under Rule 76.32 has been timely filed.” Ky. R. Civ. P. 76.30(2)(a) (1978).
The strong similarities between the two statutes support the conclusion that the finality procedure replaced the
mandate procedure.
No. 14-6494                           Giles v. Beckstrom                               Page 6


        Having determined that Giles’s petition was untimely, we need to decide only whether
the limitations period should be tolled for equitable reasons. “[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 circumstances stood in his way and prevented timely filing.” Holland v.
Florida, 560 U.S. 631, 649 (2010) (internal quotation marks and citation omitted). In order for
the limitations period to be tolled equitably based on attorney error, which is the claim here, the
error must be “far more serious” than “a garden variety claim of excusable neglect.” Id. at 651-
52 (internal quotation marks and citation omitted).

        Generally, an attorney’s misunderstanding of a filing deadline is not grounds for
equitable tolling.   See id. (“[S]imple ‘miscalculation’ that leads a lawyer to miss a filing
deadline” does not warrant equitable tolling.); Lawrence v. Florida, 549 U.S. 327, 336-37 (2007)
(“Attorney miscalculation is simply not sufficient to warrant equitable tolling.”); Jurado v. Burt,
337 F.3d 638, 644 (6th Cir. 2003) (“Generally, a lawyer’s mistake is not a valid basis for
equitable tolling.”) (internal quotation marks and citation omitted). Thus, the error made by
Giles’s attorney in calculating the filing deadline for the habeas petition is not sufficient grounds
for equitable tolling.

        For the reasons set out above, we conclude that the district court correctly calculated the
limitations period for the filing of Giles’s habeas petition. We also conclude that the district
court correctly found that Giles’s attorney’s error in calculating the filing deadline was not an
extraordinary circumstance warranting equitable tolling of the statute of limitations.
We therefore AFFIRM the judgment of the district court.
