                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               April 30, 2008
                               No. 07-10573                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                    D. C. Docket No. 06-02776-CV-RLV-1

EUGENE HAMMOND,



                                                           Petitioner-Appellant,

                                    versus

DAVID FRAZIER,

                                                          Respondent-Appellee.

                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                               (April 30, 2008)

Before EDMONDSON, Chief Judge, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

     Eugene Hammond, a Georgia state prisoner, filed a habeas petition pursuant
to 28 U.S.C. § 2254, which the magistrate judge recommended dismissing as

untimely. Alleging that post-conviction counsel falsely told him that counsel had

filed the state habeas petition and repeatedly ignored his requests to return court

records, Hammond argued that the court should have considered equitable tolling.

Without the application of equitable tolling, the petition was untimely. The district

court adopted the magistrate judge’s recommendation and dismissed the petition as

untimely. The district court then granted a certificate of appealability (“COA”) on

the following issue: “whether attorney negligence can provide a basis for equitable

tolling with respect to the filing requirements of the AEDPA, 28 U.S.C.

§ 2244(d)?”1

      We review the district court’s denial of equitable tolling de novo. Drew v.

Dep’t of Corr., 297 F.3d 1278, 1283 (11th Cir. 2002).

      The AEDPA imposes a one-year statute of limitations for filing a federal

habeas petition that runs from, inter alia, the date on which the judgment became

final. 28 U.S.C. § 2244(d)(1)(A). Properly filed state post-conviction motions can

toll the limitations period. 28 U.S.C. § 2244(d)(2). In addition, the limitations

period may equitably toll under certain circumstances. Wade v. Battle, 379 F.3d

1254, 1265 (11th Cir. 2004).



      1
          We construe this to include all attorney misconduct.

                                                2
      Equitable tolling requires the petitioner to show that the circumstances were

“both beyond his control and unavoidable even with due diligence.” Steed v.

Head, 219 F.3d 1298, 1300 (11th Cir. 2000). The remedy is applied sparingly. Id.

      In Lawrence v. Florida, 127 S.Ct. 1079 (2007), the Supreme Court held that

attorney miscalculations do not entitle a prisoner to equitable tolling; see also Pugh

v. Smith, 465 F.3d 1295 (11th Cir. 2006) (attorney mistake or negligence is not a

basis for equitable tolling). This court’s recent opinion in Downs v. McNeil, 520

F.3d 1311 (11th Cir. 2008), makes clear that, although mere attorney negligence

does not entitle a petitioner to equitable tolling, some forms of serious attorney

misconduct may qualify. 520 F.3d at *8, 11-13.

      Here, the district court made no factual findings regarding the level of

attorney misconduct or if the circumstances were beyond Hammond’s control and

unavoidable with the exercise of due diligence. Accordingly, we VACATE and

REMAND with instructions for the district court to conduct an evidentiary hearing.

      VACATED and REMANDED.




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