               United States Court of Appeals
                           For the Eighth Circuit
                       ___________________________

                               No. 16-2730
                       ___________________________

                                Mark Christeson,

                     lllllllllllllllllllllPetitioner - Appellant,

                                         v.

                                    Don Roper,

                    lllllllllllllllllllllRespondent - Appellee.

                            ------------------------------

 American Bar Association; Roderick and Solange MacArthur Justice Center;
   National Associate for Public Defense; National Legal Aid and Defender
Association; National Association of Criminal Defense Lawyers; Former Federal
                               and State Judges,

                 lllllllllllllllllllllAmici on Behalf of Petitioner.
                                      ____________

                   Appeal from United States District Court
              for the Western District of Missouri - Kansas City
                               ____________

                          Submitted: January 24, 2017
                            Filed: January 27, 2017
                                  [Published]
                                ____________

Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.
                           ____________
PER CURIAM.

       Mark Christeson appeals from an order of the district court1 denying his motion
to reopen a final judgment dismissing his habeas corpus application as untimely.
Christeson was convicted of three counts of capital murder in Missouri and sentenced
to death. The Missouri Supreme Court affirmed the convictions and sentences, State
v. Christeson, 50 S.W.3d 251 (Mo. 2001), and later affirmed the denial of state post-
conviction relief. Christeson v. State, 131 S.W.3d 796 (Mo. 2004).

       The federal district court, on July 2, 2004, then appointed two attorneys to
represent Christeson in federal habeas corpus litigation. The attorneys filed a habeas
petition on August 5, 2005, but the district court dismissed it as untimely, because the
time for filing a petition expired on April 10, 2005. This court denied Christeson’s
application for a certificate of appealability.

       Several years later, two new attorneys who now represent Christeson moved for
substitution of counsel. New counsel sought to file a motion under Federal Rule of
Civil Procedure 60(b) to reopen the final judgment on the ground that the statute of
limitations for Christeson’s federal habeas petition should have been equitably tolled.
The Supreme Court ultimately ruled that substitution was required, Christeson v.
Roper, 135 S. Ct. 891 (2015) (per curiam), and we remanded the case to the district
court with directions to grant the motion for substitution. In its decision, the Supreme
Court observed that “Christeson faces a host of procedural obstacles to having a
federal court consider his habeas petition,” including a requirement to demonstrate
that “extraordinary circumstances justify the reopening of a final judgment.” Id. at
895-96 (alterations and quotation marks omitted).




      1
        The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.

                                          -2-
       The district court on remand denied Christeson’s motion under Rule 60(b) to
reopen the final judgment without an evidentiary hearing. The court concluded that
Christeson failed to show “extraordinary circumstances” to justify either reopening
a final judgment or equitable tolling of the statute of limitations. Comparing original
counsel’s actions to the conduct of attorneys in Holland v. Florida, 560 U.S. 631
(2010), and Maples v. Thomas, 132 S. Ct. 912 (2012), the district court rejected
Christeson’s contention that his original counsel abandoned him or engaged in other
misconduct that amounted to an extraordinary circumstance. Based on filings in the
case by original counsel, the court explained that counsel visited Christeson on May
27, 2005, ten weeks before they filed the habeas petition, and prepared and filed
various documents over the course of nearly two years. The court ruled that original
counsel’s miscalculation of the due date for Christeson’s habeas petition was not an
extraordinary circumstance.

       We granted a certificate of appealability to review the district court’s denial of
relief under Rule 60(b). After considering the opening briefs, we thought it prudent
under the circumstances for the district court to develop the record on the actions of
original counsel so that a decision on Christeson’s allegation of abandonment could
be based on a more complete understanding of the facts. We therefore remanded the
case for a limited evidentiary hearing on the issue of abandonment.

       The district court convened an evidentiary hearing and received testimony from
both of Christeson’s original attorneys in the federal habeas case, subject
to cross-examination by counsel for Christeson. All testimony of original counsel was
within the waiver of the attorney-client privilege that was necessarily occasioned by
Christeson’s claim that original counsel abandoned him. Based on the demeanor of
the witnesses and the overall record, the court found credible the testimony of the
attorneys. The district court found that original counsel began working on
Christeson’s behalf within two to three months of their appointment in July 2004, well
before the habeas petition was due in April 2005. Counsel explained, and the court

                                          -3-
believed, that they received approximately 16 boxes of documents from Christeson’s
appellate counsel in 2004, and that they reviewed these documents, contacted
appellate counsel regarding issues raised at the appellate level, and investigated or
discussed potential claims. Tr. 20, 155; see R. Doc. 73, at 8. The court credited the
testimony of original counsel that shortly after being appointed, they calculated the
due date for Christeson’s habeas petition based on then-existing case law, and
believed that the filing deadline was August 8, 2005. Tr. 23. Based on these findings,
the district court reaffirmed its conclusion that original counsel did not abandon
Christeson, and that Christeson did not establish extraordinary circumstances to justify
equitable tolling or reopening the judgment. We review the district court’s findings
of fact for clear error, and we review the ultimate conclusion on the existence of
extraordinary circumstances de novo. See English v. United States, 840 F.3d 957, 958
(8th Cir. 2016).2

       On appeal, Christeson renews his contention that original counsel abandoned
him during the limitations period for the filing of his federal habeas petition, but we
are not convinced. Original counsel testified that they calculated a due date for the
petition of August 8, 2005, and acted accordingly. They met with Christeson ten
weeks before the presumed due date and filed a petition that was timely based on their
calculation. The district court credited their testimony, and we see no clear error in
that determination. That original counsel did not meet with Christeson before the
actual due date of April 10, 2005, does not show abandonment. Counsel simply
miscalculated the due date. “Tolling based on counsel’s failure to satisfy AEDPA’s
statute of limitations is available only for ‘serious instances of attorney misconduct.’”
Christeson, 135 S. Ct. at 894 (quoting Holland, 560 U.S. at 651-52). Whether original
counsel’s miscalculation was reasonable based on then-existing law (as the district

      2
       Because abandonment and extraordinary circumstances are issues of law
reviewed de novo, it was not an abuse of discretion for the district court to reject
Christeson’s request to delay the evidentiary hearing to receive an expert opinion on
abandonment. See Peterson v. City of Plymouth, 60 F.3d 469, 475 (8th Cir. 1995).

                                          -4-
court thought) or was the result of negligence (ordinary or gross), it is well settled that
attorney negligence in calculating a deadline is not sufficient to warrant equitable
tolling of a statutory time limit. Maples, 132 S. Ct. at 922-23; Holland, 560 U.S. at
651-52; Lawrence v. Florida, 549 U.S. 327, 336-37 (2007); Kreutzer v. Bowersox,
231 F.3d 460, 463 (8th Cir. 2000). Nor is original counsel’s miscalculation an
extraordinary circumstance that justifies reopening a judgment. Cf. Gonzalez v.
Crosby, 545 U.S. 524, 535-38 (2005).

       Christeson complains that the district court prevented him from effectively
cross-examining original counsel about their calculation of the filing deadline when
the court refused to admit a copy of this court’s decision in Snow v. Ault, 238 F.3d
1033 (8th Cir. 2001), as an exhibit at the limited evidentiary hearing. Tr. 76. The
decision is a matter of public record, and there was no error in declining to make it an
exhibit. Christeson did not propound any question about Snow to which an objection
was sustained, so he has not preserved any claim of error about limitation of cross-
examination on this subject. In any event, the import of Snow is to show that original
counsel negligently miscalculated the filing deadline: The lawyers said they thought
the time was tolled during the ninety days when certiorari could have been sought to
review the state court’s denial of post-conviction relief, see Abela v. Martin, 348 F.3d
164, 172-73 (6th Cir. 2003); Snow demonstrates that they were wrong under then-
existing Eighth Circuit law. See 238 F.3d at 1035. But further discussion of Snow
with original counsel to establish attorney negligence could not demonstrate
abandonment or extraordinary circumstances, because negligent miscalculation of the
deadline is insufficient.

      The district court also found that original counsel performed work on
Christeson’s federal habeas petition—reviewing the voluminous state court record,
discussing issues with state appellate counsel, and performing legal
research—between their appointment in July 2004 and the filing deadline in April
2005. Christeson complains that he was unable to conduct effective cross-

                                           -5-
examination on this subject, because the district court refused to authorize discovery
of documents from original counsel. On cross-examination, however, Christeson was
able to establish that original counsel kept no time records of work performed before
the filing deadline, kept no notes or work product from that period concerning
potential claims, had no record of electronic legal research, did not contact a
neuropsychological expert to examine Christeson, and had no record of written
correspondence with Christeson before May 2005. The absence of records was the
most effective impeachment material available, yet the district court nonetheless
credited the testimony of original counsel that they worked on Christeson’s case
before the actual filing deadline.3

       Credibility findings based on the observation of witnesses are accorded great
deference, and we discern no clear error here. Original counsel testified that they kept
no time records because they expected to perform the services pro bono, Tr. 59, and
made no notes while reviewing the transcripts and state-court record because the case
file was well organized, Tr. 143—the principal work on preparing a petition was
performed between May and August 2005. Counsel said that they had no record of
electronic research because they used printed materials and compact discs to conduct
legal research, Tr. 56, 146, and they did not consult a neuropsychiatrist because
Christeson did not want an examination. Tr. 70. And even if counsel did all of their
work on the petition during the ten weeks before they believed the petition was due
in August 2005, that allocation of time would not constitute abandonment as opposed
to negligent miscalculation of a filing deadline.


      3
        Christeson also complains that he could not obtain prison records reflecting his
telephone calls with original counsel, but the State introduced an exhibit with a list of
prison calls at the hearing, and it showed only calls between Christeson and original
counsel after the statute of limitations expired. Tr. 14-15. Christeson objects that he
could not discover copies of original counsel’s calendars and docket appearances in
all courts during the relevant period, but he does not explain why those records would
be material.

                                          -6-
      Christeson contends that the district court’s budget order denied him the
necessary resources, especially for experts and specialists, to develop fully grounds
for equitable tolling of the statute of limitations. Christeson’s substituted counsel
requested approximately $161,000; the district court authorized $10,000 with the
possibility of additional resources if an evidentiary hearing were ordered. We see no
prejudice to Christeson from the district court’s order. A substantial amount of
Christeson’s proposed budget was aimed at developing information that was not
relevant to whether original counsel abandoned Christeson. R. Doc. 119, at 19-20.
As the district court observed, “no amount of money would change the fact that
original counsel simply miscalculated AEDPA’s one-year deadline.” R. Doc. 150, at
20. Christeson’s attorneys thoroughly briefed the issues of abandonment and
extraordinary circumstances in the district court and in this court; that counsel might
end up receiving compensation below their ordinary rates or performing some services
pro bono does not violate any right of Christeson. Cf. In re Carlyle, 644 F.3d 694,
699-700 (8th Cir. 2011) (Riley, C.J., in chambers) (“[I]t must be remembered that CJA
service is first a professional responsibility, and no lawyer is entitled to full
compensation for services for the public good.”).

       The district court ruled alternatively that even if Christeson had showed
extraordinary circumstances to warrant equitable tolling, he failed to show that he also
diligently pursued his rights. Given our conclusion that there are no extraordinary
circumstances that justify equitable tolling or reopening of the judgment, we need not
address whether Christeson was diligent.

        The judgment of the district court is affirmed. Christeson’s unopposed motion
to file a portion of the joint appendix under seal is granted.




                                          -7-
MURPHY, Circuit Judge, concurring.

       While I do not agree that Christeson’s counsel’s calculation of AEDPA’s
limitations period was a “reasonable interpretation of then existing caselaw” as the
district court found, I nonetheless concur because this error did not merit reopening
under Federal Rule of Civil Procedure 60(b) or equitable tolling.

        The district court credited the explanation by Christeson’s attorneys that they
based their calculation of AEDPA’s limitations period on then existing case law,
including the Sixth Circuit’s decision in Abela v. Martin, 348 F.3d 164 (6th Cir. 2003)
(en banc), overruled by Lawrence v. Florida, 549 U.S. 327 (2007). In Abela, the Sixth
Circuit decided that AEDPA’s limitations period was tolled under 28 U.S.C.
§ 2244(d)(2) “from the filing of an application for state post-conviction or other
collateral relief until the conclusion of the [90 days] for seeking Supreme Court
review of the state's final judgment.” 348 F.3d at 172–73. In dissent, Judge Siler
observed that there had been “no Circuit authority” in support of the majority’s rule.
Id. at 173.

        Counsel in the case before us should, however, have been aware that the tolling
period calculated under Abela had been explicitly rejected by the Eighth Circuit. In
fact, the Sixth Circuit had observed in Abela that other appellate courts, including the
Eighth Circuit, had rejected its tolling rule. 348 F.3d at 169 (citing Snow v. Ault, 238
F.3d 1033, 1035 (8th Cir. 2001)). In Snow, the Eighth Circuit had concluded that the
petitioner who had not sought a writ of certiorari would not be entitled to an additional
90 days of tolling under 28 U.S.C. § 2244(d)(2) at the conclusion of state
postconviction review.4 238 F.3d at 1035.

      4
       Snow v. Ault was also cited in Christeson’s pro se motion in district court
requesting the appointment of initial counsel. That motion, which one of Christeson’s
attorneys admitted he had seen, stated that he needed counsel appointed immediately
because in Snow v. Ault the “Eighth Circuit ruled that under the AEDPA the time for

                                          -8-
       The panel opinion states that this miscalculation may have been “negligent” but
on this record it appears that counsel’s conduct crossed the line from negligent to
deficient representation. The question before us is not whether Christeson’s counsel
provided ineffective assistance, however, but whether Christeson’s counsel engaged
in such “serious attorney misconduct” that counsel effectively abandoned Christeson.
United States v. Martin, 408 F.3d 1089, 1093 (8th Cir. 2003). Here, counsel allegedly
conducted some legal research, cursory as it may have been. Minimal or mistaken
legal research does not equate to serious attorney misconduct, however. See King v.
Hobbs, 666 F.3d 1132, 1137 (8th Cir. 2012); see also Cadet v. Florida Dep’t of Corr.,
742 F.3d 473, 480–81 (11th Cir. 2014). Given that counsel’s performance here has
not been shown to amount to serious misconduct, I concur.
                        ______________________________




filing [a] habeas petition [would] commence running when rehearing [before the state
supreme court] [was] ruled on.”

                                         -9-
