           Case: 11-15414   Date Filed: 04/22/2013   Page: 1 of 7


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 11-15414
                        Non-Argument Calendar
                     _________________________

               D.C. Docket No. 3:11-cv-00198-RBD-TEM



WILFORD LEE ROSS,

                                                          Petitioner-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                       Respondents-Appellees.


                       ________________________

               Appeal from the United States District Court
                   For the Middle District of Florida
                    _________________________


                             (April 22, 2013)


Before WILSON, ANDERSON, and EDMONDSON, Circuit Judges.
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PER CURIAM:



          Wilford Lee Ross, a Florida prisoner proceeding pro se, appeals the

dismissal of his 28 U.S.C. § 2254 habeas petition. The district court thought the

petition was barred by the one-year statute of limitations of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). Reversible error has been

shown; we vacate the judgment and remand the case for additional proceedings.

          Section 2254 petitions are governed by a one-year statute of limitations that

begins to run on the latest of four triggering events. 28 U.S.C. § 2244(d)(1). Two

triggering events are pertinent to this appeal: (1) “the date on which the judgment

became final by the conclusion of direct review or the expiration of the time for

seeking such review”; and (2) “the date on which the factual predicate of the claim

or claims presented could have been discovered through the exercise of due

diligence.” 28 U.S.C. § 2244(d)(1)(A), (D).

          Ross pleaded guilty to attempted sexual battery on 9 September 1999 and

was sentenced to 23 years’ imprisonment. 1 His conviction and sentence became

final on 12 October 1999, after the time for filing a direct appeal expired. See Fla.

R. App. P. 9.140(b)(3) (providing a 30-day period for filing a direct appeal).


1
    Ross was represented by the same court-appointed lawyer throughout the state criminal case.
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      In his federal habeas petition, Ross claimed that his lawyer was ineffective

for failing to discover -- and for failing to tell Ross about -- a DNA report that

showed that no DNA evidence was found on the victim. According to Ross, his

lawyer told him (or Ross’s mother or both) that the state prosecutor had said that

Ross’s DNA was found on the victim. When asked about an actual DNA report,

Ross’s lawyer told Ross that he was not aware that a DNA report existed. The

record shows, however, that a copy of the pertinent DNA report was hand-

delivered to Ross’s lawyer eight days before Ross pleaded guilty. Ross asserted

that, but for his lawyer’s incorrect and confusing and misleading advice about

DNA evidence and a DNA report, Ross would not have pleaded guilty.

      That Ross’s habeas petition -- filed on 28 February 2011 -- was filed more

than one year after his judgment became final is undisputed. But Ross argued that

his petition was timely under section 2244(d)(1)(D) because less than one year of

untolled time had elapsed since his discovering “new evidence.” Ross alleged that

he began filing a series of public records requests in 2001 but received no copy of

the pertinent DNA report until 27 October 2009.

      The district court dismissed Ross’s petition as time-barred under section

2244(d)(1)(A) because more than one year of untolled time had elapsed since

Ross’s conviction became final. The district court concluded that Ross was unable

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to extend the statute of limitations -- pursuant to section 2244(d)(1)(D) -- based on

“newly discovered evidence.” Because the DNA report was hand-delivered to

Ross’s lawyer and also mentioned in a document that had been entered into the

state court’s docket before Ross pleaded guilty, the district court concluded that the

report did not constitute “newly discovered evidence.” 2

       We granted a certificate of appealability on one issue:

       Whether the district court erred in finding that Ross’s § 2254 petition was
       time-barred, based on its finding that the one-year statute of limitations
       period began to run on the date on which Ross’s conviction became final,
       rather than on the date on which the factual predicate of Ross’s claim could
       have been discovered through the exercise of due diligence, under §
       2244(d)(1)(D).

       We review de novo a district court’s determination that a petition for federal

habeas corpus relief is time-barred under 28 U.S.C. § 2244(d). Steed v. Head, 219

F.3d 1298, 1300 (11th Cir. 2000). 3 In determining whether a habeas petition is

timely under section 2244(d)(1)(D), courts must first address whether the petitioner

exercised due diligence. See Aron v. United States, 291 F.3d 708, 711 (11th Cir.

2002) (stating -- in the context of a nearly identical provision in 28 U.S.C. §


2
 The state court docket makes no mention of a DNA report. Instead, the court docket lists a
“First Supplemental Response to Demand for Discovery.” Within that “Response” document is
a list of items that the state prosecutor provided to Ross’s lawyer, including a “FDLE DNA
Report.” The DNA report itself was not part of the public court record.
3
 In addition, we construe pro se pleadings liberally. See Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998).
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2255(f)(4) -- that “the court should begin the timeliness inquiry . . . by determining

whether the petitioner exercised due diligence.”).

          Because the district court looked to the date Ross’s conviction became final,

the district court erred in concluding that Ross’s habeas petition was time-barred.

Ross’s ineffectiveness claim is based on a representation or nondisclosure made by

his trial counsel. That the DNA report (one favorable to Ross) actually was in

existence and that Ross’s lawyer knew or should have known about the report at a

time before Ross pleaded guilty do not bar Ross’s claim: these circumstances are

the underlying factual predicate for Ross’s ineffectiveness-of-counsel claim. And,

even if the existence of the DNA report might have been discovered from a review

of the state court record at the time the lawyer made the alleged inaccurate

representation to Ross, that fact alone does not bar Ross’s claim. Ross -- when he

had legal counsel as a matter of right -- did not act unreasonably in accepting his

lawyer’s representations. Ross had no legal duty to check the court record for

himself (even assuming that he, in fact, could have done so), 4 at a time when Ross

had a lawyer representing him in his case. Cf. Beavers v. Metro. Life Ins. Co., 566

F.3d 436, 440 (5th Cir. 2009) (noting that, under Texas law, an attorney -- as a

fiduciary -- “is obligated to render a full and fair disclosure of facts material to the


4
    Ross was already incarcerated before his guilty plea.
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client’s representation. The client must feel free to rely on his attorney’s advice.”

(citation omitted)); Golden Pac. Bancorp v. FDIC, 273 F.3d 509, 519 (2d Cir.

2001) (explaining that a “beneficiary should be entitled to rely upon a fiduciary’s

skill”).

       To determine the timeliness of Ross’s habeas petition, therefore, the district

court must first assess when Ross could have learned about his lawyer’s

ineffectiveness: that is, when Ross -- through the exercise of due diligence -- could

have learned that his lawyer’s representation was incorrect about no DNA report

being available. This determination is tied to when Ross -- through the exercise of

due diligence -- could have discovered that a DNA report (showing no DNA

evidence) existed and was (or should have been) known by Ross’s lawyer before

Ross pleaded guilty.

       Our impression of the record is that the statute of limitations, as a matter of

law, must have begun to run at some time after Ross’s conviction became final,

that is, after the time when Ross was represented by the lawyer Ross says misled

him. Up until that point at least, Ross says he did not know of the DNA report;

and Ross had acted with due diligence, for he was relying on his lawyer’s

representations. The district court erred in concluding the limitations period began

to run on the date Ross’s conviction became final.

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       VACATED and REMANDED. 5




5
  In dismissing Ross’s claim, the district court noted that Ross “has failed to show how the fact
that there was no DNA found on the victim would have in any way changed the outcome of his
plea to the charge of attempted sexual battery.” Because our review is limited to the single
timeliness issue presented in the COA, we will not address whether the district court commented
improperly on the underlying merits of Ross’s habeas claim. We vacate the district court’s
decision completely, so -- to the extent proper and necessary -- the merits of Ross’s claim can be
looked at anew on remand.

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