              Case: 12-14518     Date Filed: 01/31/2014    Page: 1 of 32


                                                                           [PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 12-14518
                            ________________________

                       D.C. Docket No. 9:07-cv-80758-DTKH



ERNEST CADET,

                                                                 Petitioner-Appellant,

                                        versus

STATE OF FLORIDA DEPARTMENT OF CORRECTIONS,

                                                                Respondent-Appellee.

                            ________________________

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

                                  (January 31, 2014)

Before CARNES, Chief Judge, WILSON and FAY, Circuit Judges.

CARNES, Chief Judge:

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

statute of limitations period for filing a federal habeas petition challenging a state
              Case: 12-14518     Date Filed: 01/31/2014    Page: 2 of 32


court judgment. 28 U.S.C. § 2244(d)(1). The limitations period is subject to

equitable tolling. Holland v. Florida, — U.S. —, 130 S.Ct. 2549, 2560 (2010).

Defining the circumstances that justify equitable tolling of that limitations period is

a work in progress, the latest work on it having been done in two Supreme Court

decisions. See Maples v. Thomas, — U.S. —, 132 S.Ct. 912 (2012); Holland, 130

S.Ct. 2549. This case requires us to determine the current test for equitable tolling

of the § 2244(d) statute of limitations period, which requires interpreting what the

Court said about it in those two decisions.

                                           I.

      In 2000, Ernest Cadet was convicted in Florida of sexual battery on a girl

who was five years of age and simple battery, crimes for which he was sentenced

to life imprisonment. His convictions were affirmed on direct appeal. See Cadet

v. State, 809 So. 2d 43 (Fla. 4th DCA 2002), cert. denied, 828 So. 2d 384 (Fla.

Sept. 23, 2002). The judgment of conviction became final 90 days later, on

December 23, 2002, when the time for seeking a writ of certiorari from the United

States Supreme Court expired. See McCloud v. Hooks, 560 F.3d 1223, 1227 (11th

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).

      On October 30, 2003 — 311 days after his convictions became final —

Cadet filed a pro se state habeas petition, which statutorily tolled the federal


                                           2
              Case: 12-14518      Date Filed: 01/31/2014   Page: 3 of 32


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

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 it 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, 935 So. 2d 14 (Fla. 4th DCA

2006). That court’s mandate issued on August 25, 2006, restarting the federal

limitations period and giving Cadet until August 30, 2006, just five more days, to

file a § 2254 petition. See Nyland v. Moore, 216 F.3d 1264, 1267 (11th Cir. 2000)




                                           3
              Case: 12-14518      Date Filed: 01/31/2014   Page: 4 of 32


(holding that a Florida post-conviction motion remains pending until the appellate

court’s mandate issues).

      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

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 appeals’ 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?


                                           4
              Case: 12-14518     Date Filed: 01/31/2014   Page: 5 of 32


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

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


                                          5
              Case: 12-14518     Date Filed: 01/31/2014    Page: 6 of 32


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 responded 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


                                           6
               Case: 12-14518    Date Filed: 01/31/2014    Page: 7 of 32


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

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




                                           7
              Case: 12-14518     Date Filed: 01/31/2014    Page: 8 of 32


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.”

                                          II.

      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. Drew v. Dep’t of Corr.,

297 F.3d 1278, 1283 (11th Cir. 2002). 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, 587 F.3d 1304, 1308 (11th Cir.

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, 130 S.Ct. at 2562 (quotation marks omitted).

      The State does not contest the district court’s determination that Cadet

diligently pursued his rights and, given his repeated questioning of counsel’s

calculation of the § 2254 deadline and his insistence that the petition be timely

filed, we do not question that determination. See id. at 2565 (“The diligence

required for equitable tolling purposes is reasonable diligence, not maximum

feasible diligence.”) (citations and quotation marks omitted); Downs v. McNeil,

520 F.3d 1311, 1322–23 (11th Cir. 2008) (petitioner exercised reasonable diligence


                                           8
              Case: 12-14518     Date Filed: 01/31/2014    Page: 9 of 32


by writing multiple letters to counsel “to express concern over the running of the

AEDPA filing period and to urge the filing of his federal habeas petition”). The

dispositive question, then, is whether Goodman’s actions in failing to timely file a

§ 2254 petition constitute an “extraordinary circumstance” for purposes of

equitable tolling. To answer that question, we must first address the appropriate

standard for gauging when attorney error amounts to an extraordinary

circumstance, particularly in light of the Supreme Court’s recent decision in

Maples.

                                          A.

      Because a lawyer is the agent of his client, a federal habeas petitioner —

who does not have a constitutional right to counsel — is ordinarily bound by his

attorney’s errors, including a miscalculation or misinterpretation of a filing

deadline. See Lawrence v. Florida, 549 U.S. 327, 336–37, 127 S.Ct. 1079, 1085

(2007) (“Attorney miscalculation [of the federal limitations period] is simply not

sufficient to warrant equitable tolling, particularly in the postconviction context

where prisoners have no constitutional right to counsel.”); see also Maples, 132

S.Ct. at 922 (“Negligence on the part of a prisoner’s postconviction attorney does

not qualify as ‘cause’ [for excusing a procedural default relating to a filing

deadline] . . . because the attorney is the prisoner’s agent, and under well-settled

principles of agency law, the principal bears the risk of negligent conduct on the


                                           9
             Case: 12-14518      Date Filed: 01/31/2014    Page: 10 of 32


part of his agent.”) (citation and quotation marks omitted); Coleman v. Thompson,

501 U.S. 722, 753, 111 S.Ct. 2546, 2566–67 (1991) (“Attorney ignorance or

inadvertence is not ‘cause’ [for excusing a procedural default relating to a filing

deadline] because the attorney is the petitioner’s agent when acting, or failing to

act, in furtherance of the litigation, and the petitioner must bear the risk of attorney

error.”) (quotation marks omitted). In recent years the Supreme Court has twice

addressed the question of when, and under what limited circumstances, a petitioner

does not bear the risk of his attorney’s errors and may therefore be entitled to relief

from a statute of limitations or procedural bar in spite of those errors.

       In the first of those cases, Holland v. Florida, the Supreme Court 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.” 130 S.Ct. at 2562–63 (quoting Holland v. Florida, 539 F.3d 1334, 1339

(11th Cir. 2008)). The Court acknowledged that, under its own precedent, a

petitioner ordinarily “must bear the risk of attorney error” and that a “garden

variety claim of attorney negligence,” such as a “simple miscalculation that leads a

lawyer to miss a filing deadline, does not warrant equitable tolling.” Id. at 2563–

64 (citation and quotation marks omitted). It nevertheless held that, “at least

sometimes, professional misconduct that fails to meet the Eleventh Circuit’s


                                           10
             Case: 12-14518      Date Filed: 01/31/2014       Page: 11 of 32


standard could nonetheless amount to egregious behavior and create an

extraordinary circumstance that warrants equitable tolling.” Id. at 2563.

      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

2564. While counsel’s failure to timely file a § 2254 petition and apparent

ignorance of the correct filing deadline “suggest[ed] simple negligence,” the Court

emphasized four facts which might lead to the conclusion that counsel’s conduct

“amounted to more”: (1) counsel’s failure to file the petition on time “despite

Holland’s many letters that repeatedly emphasized the importance of his doing so”;

(2) counsel’s failure to “do the research necessary to find out the proper filing date,

despite Holland’s letters that went so far as to identify the applicable legal rules”;

(3) counsel’s failure to inform Holland that the Florida Supreme Court had

affirmed the denial of his state post-conviction motion, “again despite Holland’s

many pleas for that information”; and (4) counsel’s failure to communicate with

Holland during the two-year period in which his state motion was pending before

the Florida Supreme Court, “despite various pleas from Holland that [counsel]

respond to his letters.” Id. at 2564; see also id. at 2555.

      There was more. During his state post-conviction proceedings, Holland had

unsuccessfully sought to discharge his attorney, complaining to the Florida


                                           11
             Case: 12-14518     Date Filed: 01/31/2014    Page: 12 of 32


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 2555 (quotation marks and brackets omitted).

The state supreme court had denied Holland’s attempts to get rid of his attorney.

Even with all of that, including the “serious instances of attorney misconduct,” the

Supreme Court declined to state its “conclusion in absolute form,” and remanded

the case for a determination of whether the circumstances involved “indeed

constitute extraordinary circumstances sufficient to warrant equitable relief.” Id. at

2564–65.

      In his concurring opinion in Holland, which set the template for the Supreme

Court’s later decision in Maples, Justice Alito chided the majority for failing to

adequately explain when attorney misconduct rises to the level of an

“extraordinary circumstance,” and he criticized the apparent distinction drawn by

the majority between ordinary and gross negligence as “impractical,” “highly

artificial,” and “hard to administer.” Id. at 2566–68 (Alito, J., concurring). Justice

Alito argued that the relevant distinction should be between all forms of attorney

negligence, “however styled,” which would be “constructively attributable to the

client,” and “attorney misconduct that is not constructively attributable to the

petitioner” because counsel had “essentially abandoned” the client. Id. at 2567–68

(quotation marks omitted). In Justice Alito’s view, the petitioner in Holland might


                                          12
             Case: 12-14518     Date Filed: 01/31/2014   Page: 13 of 32


well be entitled to equitable 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

2568. “Common sense,” Justice Alito concluded, “dictates that a litigant cannot be

held constructively responsible for the conduct of an attorney who is not operating

as his agent in any meaningful sense of the word.” Id.

      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. 132

S.Ct. at 924. The petitioner in Maples was an Alabama death-row inmate who had

been represented by two pro bono attorneys from a New York law firm and a local

attorney recruited for the sole purpose of allowing the out-of-state attorneys to be

admitted pro hac vice. Id. at 918–19. While Maples’ state post-conviction petition

was pending, the two New York attorneys left their firm for positions that rendered

them ineligible to continue to represent him. Id. at 919, 924. Neither attorney,

however, notified Maples of his departure and resulting inability to represent

Maples. Id. at 919. Nor did either of them ask the state trial court for leave to

withdraw or move for substitution of counsel. Id. Without the assistance of his


                                          13
             Case: 12-14518      Date Filed: 01/31/2014    Page: 14 of 32


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 920–21.

      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 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 922–23 (quotation

marks and brackets omitted). The 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 923–24 (emphasis added). Underscoring

that “essential difference,” the Court also cast — or recast, as the case may be —

its Holland decision as turning on counsel’s “abandonment” of his client, instead of

on counsel’s gross negligence, and the Court clarified that it saw “no reason . . .


                                           14
             Case: 12-14518     Date Filed: 01/31/2014    Page: 15 of 32


why the distinction between attorney negligence and attorney abandonment should

not hold in both” the equitable tolling and procedural default contexts. Id. at 923

& n.7 (quotation marks omitted) (emphasis added).

      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 924. The

Court concluded that counsel had abandoned Maples because, as a matter of both

common sense and agency law principles, he was effectively “left without any

functioning attorney of record” and had “been reduced to pro se status.” Id. at 927.

      Cadet acted with reasonable diligence, and we assume for present purposes

that Goodman’s sincere but stubborn misreading of § 2244(d) amounted to gross

negligence. The resulting question is whether attorney error that amounts to gross

negligence is a sufficiently extraordinary circumstance for equitable tolling

purposes, as the majority opinion in Holland seems to suggest, or whether the

attorney’s conduct must amount to an abandonment of the attorney-client

relationship, as Maples does state.

      The Supreme Court in Holland did not actually decide whether Holland

himself was entitled to equitable tolling. 130 S.Ct. at 2565. Still, the majority


                                          15
                Case: 12-14518      Date Filed: 01/31/2014      Page: 16 of 32


opinion in that case, read by itself, could be interpreted to mean that attorney

misconduct amounting to more than “garden variety” negligence, but falling short

of abandonment, may warrant equitable tolling. The Holland opinion, however,

cannot be read by itself. Instead, that opinion must be read in light of the Court’s

explanation of Holland eighteen months later in its Maples decision. In Maples the

Court pointed out that the petitioner in Holland had “urged that attorney negligence

was not the gravamen of his complaint. Rather, he asserted that his lawyer had

detached himself from any trust relationship with [him] . . . [and had] abandoned

[him] . . . .” Maples, 132 S.Ct. at 923 (quotation marks omitted). The Maples

Court characterized Holland as a case of attorney abandonment, not one of gross

negligence, emphasizing that it involved “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. (quoting Holland, 130 S.Ct. at 2568

(Alito, J., concurring)). In the course of doing so, the Court reached back to

Justice Alito’s concurring opinion in Holland and adopted its distinction between

attorney negligence, however styled and however egregious, on the one hand, and

attorney abandonment on the other. See id. at 923 & n.7. And the Court stated

that the critical distinction between any kind of negligence and abandonment

applies in both the equitable tolling and procedural default contexts.1 Id.


      1
          Our concurring colleague believes that we have misinterpreted the Maples Court
                                               16
               Case: 12-14518       Date Filed: 01/31/2014       Page: 17 of 32


       The Supreme Court explained in Maples that the critical distinction between

attorney negligence and attorney abandonment is grounded in “well-settled

principles of agency law,” under which a petitioner bears the risk of attorney error

unless his attorney has essentially abandoned him and thereby “severed the

principal-agent relationship.” Id. at 922–23. The Court reiterated the rule that a

petitioner is bound by his attorney’s mistake in missing a filing deadline (“We do

not disturb that general rule”), but held that “[a] markedly different situation”

exists when “an attorney abandons his client without notice, and thereby occasions

the default.” Id. at 922. The client is not responsible for what happens after his

attorney abandons him.

       In light of the Supreme Court’s Maples decision, we hold that attorney

negligence, however gross or egregious, does not qualify as an “extraordinary




statement that it saw “no reason . . . why the distinction between attorney negligence and
attorney abandonment should not hold in both” the procedural default and equitable tolling
contexts, and that the most reasonable interpretation of that statement is that Maples was simply
reaffirming the notion that simple negligence, as opposed to gross negligence, is never sufficient
to warrant equitable tolling. That view fails to come to grips with the context in which the
statement was made. The context is that the Court in Maples adopted the distinction drawn by
Justice Alito in his Holland concurrence between all forms of attorney negligence, including
gross negligence, and abandonment, and explained that it was doing so because Justice Alito 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.” Maples, 132 S.Ct. at 923
(emphasis added). It is the Supreme Court that has insisted that “the essential difference” is not
between simple negligence and egregious negligence, but instead, between negligence “however
egregious” and abandonment. That is, after all, exactly what the Court said. We believe that the
most reasonable interpretation of the Court’s statement, as well as the context in which it was
made (adopting Justice Alito’s position in Holland), is that the Supreme Court meant “the
essential difference” is exactly what the Court said the essential difference is.
                                                17
               Case: 12-14518      Date Filed: 01/31/2014       Page: 18 of 32


circumstance” for purposes of equitable tolling; abandonment of the attorney-client

relationship, such as may have occurred in Holland, is required. 2 Applying that

standard to this case, our inquiry is whether Cadet “has shown that his attorney . . .

abandoned him, thereby supplying the ‘extraordinary circumstances’” necessary to

warrant equitable tolling of the § 2244(d) statute of limitations period. See id. at

924.

                                              B.

       Cadet contends that Goodman effectively abandoned him, thereby severing

the attorney-client relationship, by failing to follow Cadet’s instructions to file a

§ 2254 petition on time, by repeatedly 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 when 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

       2
         The concurrence suggests that adopting an abandonment standard, which we believe is
compelled by the Supreme Court’s decision in Maples, contravenes Holland’s rejection of rigid,
mechanical, per se rules in the equitable tolling context. See Holland, 130 S.Ct. at 2563
(explaining that equity demands “flexibility” and the avoidance of “mechanical” and “rigid
rules”). Holland, of course, itself adopted a rigid per se rule that simple or garden variety
negligence can never warrant equitable tolling. See id. at 2564. Requiring a showing of
abandonment no more entails a rigid per se approach than requiring a showing of gross
negligence does. We have not adopted a rigid or mechanical definition of attorney abandonment,
and contrary to our colleague’s suggestion, nothing in our opinion forecloses courts from
engaging in “equitable, case-by-case” inquiries into whether the requisite abandonment occurred,
provided, of course, that egregious negligence is not equated with abandonment.
                                              18
              Case: 12-14518     Date Filed: 01/31/2014    Page: 19 of 32


the 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.

      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, where counsel

acts adversely to his client’s interests or commits a serious breach of loyalty to his

client. See Restatement (Second) of Agency § 112 (1958) (“[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.”); Restatement (Third) of Agency § 5.04 (2006) (“[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 . . . .”); Downs, 520 F.3d at

1320 (“[U]nder fundamental tenets of agency law, a principal is not charged with

an agent’s actions or knowledge when the agent is acting adversely to the

principal’s interests.”). The adverse interest exception to the general rule of

constructive imputation, however, is not nearly as broad as Cadet suggests.

      For purposes of agency law, an agent is not deemed to have acted adversely

to his principal’s interests simply because he made an unwise or negligent or

grossly negligent mistake that harmed those interests. Instead, an agent is deemed


                                           19
             Case: 12-14518     Date Filed: 01/31/2014    Page: 20 of 32


to have acted adversely to his principal’s interests only when he acts for the

purpose of advancing his own interests or those of another person. 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) § 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

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) § 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, 453

F.3d 1, 8 (1st Cir. 2006).

      The theory 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 the scope of his agency, and it would

therefore be most unjust to charge the principal with knowledge of it.” Wight v.


                                          20
              Case: 12-14518         Date Filed: 01/31/2014   Page: 21 of 32


BankAmerica Corp., 219 F.3d 79, 87 (2d Cir. 2000) (quotation marks omitted).

Courts have recognized that the adverse interest exception is a narrow one, which

applies only where an agent wholly disregards the principal’s interests in favor of

his own interests or the interests of a third party. See id. (“The adverse interest

exception, however, is narrow and applies only when the agent has ‘totally

abandoned’ the principal’s interests.”); Beck v. Deloitte & Touche, 144 F.3d 732,

736 (11th Cir. 1998) (explaining that, under Florida law, an agent’s actions must

be “entirely adverse” to the principal’s interests, meaning that “his actions must

neither be intended to benefit the [principal] nor actually cause short- or long-term

benefit to the [principal]”); see also Towery v. Ryan, 673 F.3d 933, 942 (9th Cir.

2012) (holding that counsel’s failure to raise a colorable habeas claim did not

amount to “severance of [the] attorney-client relationship” because the record did

not suggest that counsel “permitted any interest or consideration to interfere with

his loyalty to [the petitioner]”).

       It has to be so. If, as Cadet argues, a principal were not held responsible for

his agent’s action or inaction whenever the effect of it was adverse to the

principal’s interests, he would never be accountable for his agent’s conduct except

when it benefited him. Any mistake, oversight, or negligence of the agent that

adversely affected the principal’s interests would not be charged against the

principal no matter how loyal or devoted to the principal’s interests the agent was.


                                              21
             Case: 12-14518     Date Filed: 01/31/2014    Page: 22 of 32


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 general rule that the principal is responsible for

the 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.

      Goodman’s misinterpretation of the filing deadline and 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 Goodman’s mistaken 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) (providing that the one-

year limitations period runs from the “conclusion of direct review or the expiration

of the time for seeking such review”) (emphasis added). 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. Hutchinson v. Florida, 677 F.3d 1097, 1100

(11th Cir. 2012) (explaining that counsel’s misinterpretation of AEDPA does not

warrant equitable tolling simply because counsel “ought to have known better”).

However much his negligence harmed Cadet’s interests, that negligence and harm


                                          22
             Case: 12-14518      Date Filed: 01/31/2014    Page: 23 of 32


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 would have us do, would ignore the “essential difference” the Supreme

Court emphasized in Maples between attorney errors, which are attributable to a

client even though harmful, and defaults that occur as a result of attorney

abandonment, which are not attributable to a client. See Maples, 132 S.Ct. at 923.

      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, which Maples made the standard,

denotes absolute renunciation or withdrawal, or a complete rejection or desertion

of one’s responsibilities, a walking away from a relationship. See Black’s Law

Dictionary 2 (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”); Random House Webster’s Unabridged Dictionary 2 (2d ed. 2001)

(defining “abandon” as “to leave completely and finally; forsake utterly; desert,” or

“to give up; discontinue, withdraw from”); Webster’s New World College

Dictionary 1 (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


                                           23
               Case: 12-14518   Date Filed: 01/31/2014    Page: 24 of 32


responsibilities, claims, etc.”); see also Harris v. United States, 367 F.3d 74, 81 (2d

Cir. 2004) (equating “abandonment” with “physical disappearance or constructive

disappearance”) (citations omitted); State v. Bradley, 811 S.W.2d 379, 384 (Mo.

1991) (defining “abandonment” as conduct that amounts to “a total default in

carrying out the obligations imposed upon [] counsel,” not merely ineffective

assistance).

      Goodman did not withdraw from representing Cadet, renounce his role as

counsel, utterly shirk all of his professional responsibilities, 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 ignore his

client’s inquires 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,

130 S.Ct. at 2564 (counsel, among other deficiencies, “failed to inform Holland in

a timely manner about the crucial fact that the Florida Supreme Court had decided

his case, [] despite Holland’s many pleas for that information,” and “failed to

communicate with his client over a period of years, despite various pleas from

Holland that [counsel] respond to his letters”); Maples, 132 S.Ct. at 923

(characterizing Holland as a case of abandonment involving “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”) (quotation marks omitted). And


                                          24
             Case: 12-14518      Date Filed: 01/31/2014    Page: 25 of 32


unlike the lawyers in Maples, Goodman did not wholly desert, forsake, or abandon

his client without notice, thereby ceasing to serve as his agent “in any meaningful

sense of that word” and leaving him “without any functioning attorney of record.”

See Maples, 132 S.Ct. at 924–97. Instead, Goodman maintained regular contact

with Cadet throughout his state post-conviction proceedings; responded to all of

his many inquiries and concerns about the federal filing deadline; sent him copies

of the relevant statutory language and state appellate court opinion; and prepared

and eventually filed a § 2254 petition on his behalf.

      Although Goodman did fail to file that § 2254 petition on time, he did not

willfully disregard Cadet’s instructions that he do so. 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, 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 attributable to the client.” Holland,

130 S.Ct. at 2567 (Alito, J., concurring).

      And 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


                                             25
             Case: 12-14518     Date Filed: 01/31/2014   Page: 26 of 32


Supreme Court, this Court, and other courts have held do not qualify as an

extraordinary circumstance warranting equitable tolling. See Lawrence, 549 U.S.

at 336–37, 127 S.Ct. at 1085 (equitable tolling not warranted where the petitioner’s

attorneys miscalculated the § 2244(d) filing deadline because they were unaware of

well-settled law; to hold otherwise “would essentially equitably toll limitations

periods for every person whose attorney missed a deadline. Attorney

miscalculation is simply not sufficient to warrant equitable tolling”); Steed v.

Head, 219 F.3d 1298, 1300 (11th Cir. 2000) (“Any miscalculation or

misinterpretation by Steed’s attorney in interpreting the plain language of [§

2244(d)] does not constitute an extraordinary circumstance sufficient to warrant

equitable tolling.”); Johnson v. Hendricks, 314 F.3d 159, 162–63 (3d Cir. 2002)

(equitable tolling not warranted where the petitioner detrimentally relied on

counsel’s erroneous advice that under § 2244(d) he had one year from the

conclusion of his state post-conviction proceedings to file a § 2254 petition);

Harris v. Hutchinson, 209 F.3d 325, 331 (4th Cir. 2000) (counsel’s

misinterpretation of the “unambiguously” clear § 2244(d)(1) provision did not

constitute an extraordinary circumstance); Tailiani v. Chrans, 189 F.3d 597, 597–

98 (7th Cir. 1999) (concluding that “under no tenable view of the doctrine [of

equitable tolling] did the lawyer’s mistake” in calculating the filing deadline

because of inadequate research into § 2244(d)(1) warrant tolling). Those decisions


                                          26
             Case: 12-14518     Date Filed: 01/31/2014   Page: 27 of 32


all preceded the Holland and Maples decisions, but they are not inconsistent with

either decision.

      Of course, 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. But stubborn negligence is still negligence, not abandonment.

Persisting in a mistaken reading of a statutory provision after being told that non-

lawyers have questioned that reading may be enough to raise the degree of a

lawyer’s negligence to the level of gross negligence, but it is not abandonment.

The difference between negligence and abandonment is one of kind, not of degree.

      Because Cadet was not abandoned by his post-conviction attorney, he has

failed to establish the “extraordinary circumstances” necessary to warrant equitable

tolling of the § 2244(d) limitations period. We therefore affirm the district court’s

dismissal of his § 2254 petition as time-barred.

      AFFIRMED.




                                          27
             Case: 12-14518      Date Filed: 01/31/2014    Page: 28 of 32


WILSON, Circuit Judge, concurring:

      Although I concur in the result, I write separately to explain my

understanding that Supreme Court precedent does not require abandonment for a

habeas petitioner to successfully assert equitable tolling of a federal time bar.

      Holland v. Florida rejected this court’s “too rigid” rule limiting the

circumstances that could be considered sufficiently extraordinary to warrant

equitable tolling. 560 U.S. 631, __, 130 S. Ct. 2549, 2563–64 (2010). It is clear

from that opinion that actual abandonment is not required. See id. at __, 130 S. Ct.

at 2562–63 (rejecting our previously articulated rule that “conduct that is ‘grossly

negligent’ can never warrant tolling absent ‘bad faith, dishonesty, divided loyalty,

mental impairment or so forth on the lawyer’s part’” (quoting Holland v. Florida,

539 F.3d 1334, 1339 (11th Cir. 2008) (per curiam), rev’d, 560 U.S. at __, 130 S.

Ct. at 2565)). At the same time, the Court’s opinion does not set forth a clearly

discernible standard which we may use to determine whether a petitioner has

demonstrated “that some extraordinary circumstance stood in his way.” See id. at

__, 130 S. Ct. at 2562–63 (internal quotation marks omitted). But rejecting a per

se rule is exactly what the Court intended. In fact, the Court noted that one of the

aims of equity—and thus, equitable tolling—is “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.” Id. at __, 130 S.


                                           28
             Case: 12-14518      Date Filed: 01/31/2014    Page: 29 of 32


Ct. at 2563 (emphasis added) (internal quotation marks omitted); see also

Hutchinson v. Florida, 677 F.3d 1097, 1098 (11th Cir.), cert. denied, __ U.S. __,

133 S. Ct. 435 (2012) (Carnes, J.) (“Equitable tolling is, well, equitable in nature . .

. .”). Therefore, rather than relying on a mechanical approach to equitable tolling,

we must follow the command of the Supreme Court and “exercise judgment in

light of prior precedent, but with awareness of the fact that specific circumstances,

often hard to predict in advance, could warrant special treatment in an appropriate

case.” Holland, 560 U.S. at __, 130 S. Ct. at 2563.

      Despite the majority’s assessment to the contrary, Maples v. Thomas, __

U.S. __, 132 S. Ct. 912, did not “recast” Holland’s holding. Maples argued that

his attorneys had abandoned him, thereby severing the attorney-client relationship

and negating any imputation of his attorneys’ conduct to him. See generally Brief

for Petitioner at 35–52, Maples, __ U.S. __, 132 S. Ct. 912 (No. 10-63). He did

not argue, and the Court did not consider, whether misconduct falling short of

abandonment would be sufficient to excuse his default. Moreover, the Court

rendered such a discussion superfluous because it held that Maples’s “counsel of

record abandoned him.” Id. at __, 132 S. Ct. at 927. Therefore, the standard for

equitable tolling set forth in Holland—that conduct by counsel must be considered

on a case-by-case basis under principles of equity—was not disturbed.




                                           29
               Case: 12-14518        Date Filed: 01/31/2014        Page: 30 of 32


       Even if Maples could be read to foreclose any inquiry into counsel

misconduct whenever it falls short of abandonment, that case involved procedural

default for failure to meet a state filing deadline. __ U.S. at __, 132 S. Ct. at 917.

Here, and in Holland, the petitioners failed to meet a federal filing deadline. 560

U.S. at __, 130 S. Ct. at 2554–55. The Court made clear in Holland that, even if

abandonment is necessary to excuse a state procedural default, misconduct falling

short of abandonment can warrant equitable tolling where a petitioner misses a

federal deadline. Id. at __, 130 S. Ct. at 2563 (“We recognize that, in the context

of procedural default, we have previously stated, without qualification, that a

petitioner must bear the risk of attorney error. But Coleman 1 was a case about

federalism in that it asked whether federal courts may excuse a petitioner’s failure

to comply with a state court’s procedural rules, notwithstanding the state court’s

determination that its own rules had been violated. Equitable tolling, by contrast,

asks whether federal courts may excuse a petitioner’s failure to comply with

federal timing rules, an inquiry that does not implicate a state court’s interpretation

of state law.” (citations and internal quotation marks omitted)). The Court thus

expressly distinguished equitable tolling from state procedural default.2 It then


1
 Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546 (1991).
2
  The Court also made clear in Coleman that the reasons for the high degree of deference to a
state court’s dismissal of a state proceeding due to procedural default are “comity and
federalism.” 501 U.S. at 730, 111 S. Ct. at 2554. Specifically, “the States should have the first
opportunity to address and correct alleged violations of state prisoner’s [sic] federal rights,” and
ignoring a state procedural default would “deprive[] the state courts of an opportunity to address
                                                 30
               Case: 12-14518        Date Filed: 01/31/2014       Page: 31 of 32


went on to reject any rigid rule regarding when “extraordinary circumstances”

sufficient to warrant equitable tolling exist, opting instead for an equitable

approach based on the circumstances of each case. See id. at __, 130 S. Ct. at

2563–64.

       Nothing in Maples suggests that the Court abandoned this distinction. The

majority misconstrues the Court’s statement in a footnote that it saw “no reason,

however, why the distinction between attorney negligence and attorney

abandonment should not hold in both contexts.” Maples, __ U.S. at __, 132 S. Ct.

at 923 n.7. The most reasonable interpretation of that statement is that the attorney

negligence to which it refers is simple negligence that would not entitle a petitioner

to relief in either the equitable tolling or the procedural default context. The

footnote does not, however, address more egregious examples of attorney

misconduct that do not constitute abandonment yet may warrant equitable tolling

under Holland. The reason for this is straightforward: the Court was presented

only with an attorney abandonment claim, and it wanted to clarify its holding that

abandonment constitutes extraordinary circumstances in both the procedural

default and equitable tolling contexts (and conversely that simple attorney

negligence would not suffice in either event). The statement, then, does not rule




those claims in the first instance.” Id. at 731–32, 111 S. Ct. at 2555. These concerns are not
present when a federal deadline is missed.
                                                31
              Case: 12-14518     Date Filed: 01/31/2014    Page: 32 of 32


out the possibility that attorney misconduct which does not rise to the level of

abandonment might constitute extraordinary circumstances sufficient to warrant

equitable tolling.

      Therefore, reading Maples, Holland, and Coleman together makes clear that,

at least in the equitable tolling context, nothing forecloses the equitable, case-by-

case inquiry that permits us to find extraordinary circumstances in the absence of

attorney abandonment. Consequently, we are still bound by Holland’s command

that we reject any “mechanical rules” and “meet new situations that demand

equitable intervention, and . . . accord all the relief necessary to correct particular

injustices.” 560 U.S. at __, 130 S. Ct. at 2563 (internal quotation marks omitted).




                                           32
