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                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 17-13226
                               Non-Argument Calendar
                             ________________________

                      D.C. Docket No. 5:16-cv-00182-MTT-CHW



SHAWN C. RUTLAND,

                                                              Petitioner - Appellant,

                                        versus

WARDEN,
Smith State Prison,

                                                             Respondent - Appellee.

                             ________________________

                      Appeal from the United States District Court
                          for the Middle District of Georgia
                            ________________________

                                    (May 23, 2019)

Before WILSON, MARTIN, and HULL, Circuit Judges.

PER CURIAM:
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      Shawn Rutland, a prisoner in Georgia serving a life sentence, appeals the

district court’s dismissal of his federal habeas petition for untimeliness. After

careful consideration, we affirm.

                                           I.

      On December 5, 2007, a jury convicted Rutland of armed robbery, hijacking

a motor vehicle, and aggravated assault. Rutland was sentenced to life in prison on

the armed robbery count, with twenty years of imprisonment to be served

consecutively on the hijacking charge and twenty years to be served concurrently

on the aggravated assault charge. During sentencing, the following exchange took

place between the court and counsel for Rutland:

      Judge Stoddard: All right. You can file your motion for new trial, and
      then for the procedure that you have in place to go ahead. You have
      the right to file a habeas corpus as to this sentence, and it has to be filed
      within four years of the date the conviction becomes final, either from
      direct review or from any other kind of delay because of appellate
      review or sentence review, but you have four years to file a habeas
      corpus. Have you discussed that with [Rutland] as well?

      Mr. Waller: Yes, Your Honor.

      Rutland appealed his convictions and sentences to the Georgia Court of

Appeals, which affirmed in part, reversed in part, and remanded for

reconsideration of Rutland’s motion for a new trial. See Rutland v. State, 675

S.E.2d 506, 511 (Ga. App. 2009). On remand, the trial court reassessed Rutland’s

motion for a new trial under the correct legal standard and denied it. Rutland once


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again appealed to the Georgia Court of Appeals, which affirmed the decision on

March 3, 2010. He did not seek further review on direct appeal.

        Some time in November 2012, Rutland hired his present counsel to

represent him in state habeas proceedings. On October 17, 2013, counsel filed a

state habeas application in the Superior Court of Tattnall County, Georgia, raising

a number of claims of ineffective assistance of counsel. The superior court held an

evidentiary hearing on Rutland’s claims and denied the application on February 2,

2015. Rutland then filed a petition for a certificate of probable cause with the

Georgia Supreme Court, which denied him leave to appeal on June 1, 2015. The

Georgia Supreme Court denied Rutland’s motion for reconsideration on July 6,

2015.

        Rutland, still represented by present counsel, filed a federal petition for

habeas corpus in the Middle District of Georgia on May 18, 2016. He raised three

claims of ineffective assistance of counsel based on: (1) trial counsel’s failure to

obtain an eyewitness identification expert; (2) trial counsel’s failure to object to the

victim’s testimony that he was certain his attacker was the defendant; and (3) trial

counsel’s decision not to introduce into evidence the lead detective’s termination

from the police department for dishonesty. The state responded by filing a motion

to dismiss the petition as untimely.




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      Rutland argued in opposition to the motion to dismiss that he was entitled to

equitable tolling and that his petition was timely as a result. He explained that he

was misled by the state trial court into thinking that he had four years to file any

habeas petition—be it state or federal. He argued that the state trial court’s

misleading instructions constituted an extraordinary circumstance that warranted

equitable timing.

      The magistrate judge issued a report and recommendation recommending

that Rutland’s petition be dismissed as untimely. The district court adopted the

magistrate judge’s recommendation with some amendments and dismissed the

petition over Rutland’s objections. The district court rejected Rutland’s argument

that he was entitled to equitable tolling, finding that the trial judge’s instructions

“were not ‘affirmatively misleading’” and that, in any event, Rutland was

represented by counsel when the judge made his statement. The district court then

denied Rutland a certificate of appealability.

      Rutland requested and received a certificate of appealability from this Court.

The only question on appeal is whether Rutland is entitled to equitable tolling of

his 28 U.S.C. § 2254 habeas petition based on the state court’s statements after

trial. It is to this question we now turn.




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                                          II.

      “We review de novo the dismissal of a habeas petition as untimely.”

Spottsville v. Terry, 476 F.3d 1241, 1243 (11th Cir. 2007). We review the district

court’s factual findings for clear error. Thompson v. Sec’y, Dep’t of Corr., 595

F.3d 1233, 1235 (11th Cir. 2010) (per curiam).

                                          III.

      The Antiterrorism and Effective Death Penalty Act (“AEDPA”) includes a

one-year statute of limitations for all state prisoners seeking to file federal habeas

petitions. 28 U.S.C. § 2244(d)(1). The clock begins running from “the date the

conviction becomes final by the conclusion of direct review or the expiration of the

time for seeking such review.” Spottsville, 476 F.3d at 1243 (quotation marks

omitted). In this case, the statute of limitations began running on March 15,

2010—the last day Rutland could have moved for reconsideration of the state

appellate court’s decision to affirm his convictions on direct appeal or given notice

of intent to apply for certiorari with the Georgia Supreme Court. See O.C.G.A.

§ 1-3-1(d)(3); Ga. Sup. Ct. R. 38(1); Ga. R. App. Ct. 37(b).

      Rutland therefore had until March 15, 2011 to file his federal habeas

petition, although the time would have been tolled for any “time during which a

properly filed application for State post-conviction or other collateral review is

pending.” Spottsville, 476 F.3d at 1243 (alteration adopted) (quoting 28 U.S.C.


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§ 2244(d)(2)). Rutland did not seek state habeas relief until 2013 and waited until

2016 to seek federal habeas relief. This filing date rendered his federal filing

untimely under § 2244(d) unless equitable tolling applies.

      “Equitable tolling can be applied to prevent the application of AEDPA’s

statutory deadline when extraordinary circumstances have worked to prevent an

otherwise diligent petitioner from timely filing his petition.” Id. at 1245 (quotation

marks omitted). Such extraordinary circumstances can take the form of misleading

instructions from the state court, see id. at 1245–46; attorney abandonment, see

Maples v. Thomas, 565 U.S. 266, 282–83, 132 S. Ct. 912, 923–24 (2012); or

“serious attorney misconduct” amounting to abandonment, Brown v. Sec’y, Dep’t

of Corrs., 750 F. App’x 915, 929 (11th Cir. 2018). The critical inquiry is whether

extraordinary circumstances beyond the petitioner’s control have prevented him

from adhering to AEDPA’s one-year statute of limitations. Maples, 565 U.S. at

924, 132 S. Ct. at 283.

      Rutland primarily takes issue with the district court’s finding that the trial

court’s statements were not “affirmatively misleading” and that he therefore failed

to establish an extraordinary circumstance that would warrant equitable tolling.

Rutland argues that by saying he had four years to file “a” habeas petition rather

than a state habeas petition, the trial court affirmatively misled him into thinking

that he had four years to file any habeas petition—be it state or federal. There is


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some merit to his position. Indeed, even the state seems to concede that the trial

court’s instructions were “confusing.” The state nonetheless argues that Spottsville

distinguishes between statements that are merely “confusing” and those that are

affirmatively misleading. We need not and do not adopt the state’s reasoning.

      Even assuming equitable tolling applies, the state is correct that Rutland’s

petition is untimely. Rutland may have been lulled into inaction by the trial court’s

misleading instructions, but his current counsel should not have been. Present

counsel was hired in November 2012. From that point forward, it was counsel’s

experience and training—and not Rutland’s—that guided Rutland’s habeas

proceedings. The state is therefore correct that the period for equitable tolling

would have lapsed the moment Rutland procured the assistance of counsel, which

happened no later than November 30, 2012. Cf. Torres v. Long, 527 F. App’x 652,

654 n.1 (9th Cir. 2013) (unpublished) (per curiam) (“Because petitioners are not

entitled to equitable tolling on the basis of language abilities once they have

assistance from a translator, we would be on solid ground to presume any

entitlement to equitable tolling ended no later than December 10, 2004 [the day the

petitioner filed his second state court petition with a translator’s assistance].”

(emphasis added and citation omitted)).

      Using November 30, 2012 as the new start date for AEDPA’s one-year

statute of limitations, Rutland had until November 30, 2013 to file his federal


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habeas petition. By our count, 321 days passed before he filed a state habeas

petition on October 17, 2013, which triggered statutory tolling until the conclusion

of his state habeas proceedings. See 28 U.S.C. 2244(d)(2). The state habeas

proceedings concluded on July 6, 2015, which was the date the Georgia Supreme

Court denied Rutland’s motion to reconsider the court’s denial of his certificate of

probable cause. At that point, Rutland had 45 days left of his one-year period to

file his federal habeas petition. However, Rutland, represented by present counsel,

filed his federal habeas petition 317 days later on May 18, 2016—well beyond the

45 days he had remaining. Thus, even with the benefit of equitable tolling,

Rutland’s habeas petition was indisputably untimely and properly dismissed.1

       AFFIRMED.




       1
          In order for Rutland’s petition to be timely, he would need another basis for equitable
tolling to cover either the time before counsel filed his state habeas petition or after. He has not
offered any such basis here.
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