Ellis Mashburn, Jr. v. Commissioner, AL DOC

Filing

Opinion issued by court as to Appellant Ellis Louis Mashburn, Jr.. Decision: Reversed and Remanded. Opinion type: Non-Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-11408

Date Filed: 10/26/2017

Page: 1 of 23

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11408
________________________
D.C. Docket No. 1:14-cv-01829-LSC

ELLIS LOUIS MASHBURN, JR.,
Petitioner-Appellant,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(October 26, 2017)
Before HULL, JORDAN and JULIE CARNES, Circuit Judges.
JULIE CARNES, Circuit Judge:
Petitioner Ellis Mashburn, an Alabama state death row prisoner, appeals the
district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition as time-

Case: 15-11408

Date Filed: 10/26/2017

Page: 2 of 23

barred. Mashburn argues that his habeas petition was timely as a result of both
statutory and equitable tolling. We agree that equitable tolling applies under the
particular circumstances of this case. Accordingly, we REVERSE the district
court’s ruling that Mashburn’s § 2254 petition is time-barred and REMAND for
the district court to rule on the merits of the claims asserted in the petition.
I.

BACKGROUND
A.

State Criminal Conviction

In September, 2006, Mashburn pled guilty to capital murder in connection
with the robbery and killing of his grandmother and step-grandfather, Henry and
Eva Birmingham. Evidence of Mashburn’s guilt was presented to the jury, as
required by Alabama Code § 13A-5-42 in death penalty cases. The jury convicted
Mashburn, and voted 11-1 to impose the death penalty. The trial court accepted
the jury’s recommendation and sentenced Mashburn to death.
Mashburn’s conviction and sentence were affirmed by the Alabama Court of
Criminal Appeals on direct review. Mashburn v. State, 7 So. 3d 453 (Ala. Crim.
App. 2007). The Alabama Supreme Court denied Mashburn’s petition for a writ of
certiorari on October 24, 2008. See id. The conviction and sentence became final
when the United States Supreme Court denied certiorari on June 1, 2009.
Mashburn v. Alabama, 556 U.S. 1270 (2009).

2

Case: 15-11408

B.

Date Filed: 10/26/2017

Page: 3 of 23

State Post-Conviction Proceedings

On October 21, 2009, Mashburn filed a state petition for post-conviction
relief pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. 1 The State
moved to dismiss the Rule 32 petition, and Mashburn moved for additional
discovery related to the State’s arguments for dismissal. On March 3, 2010, the
Rule 32 court held a conference with the parties to discuss the pending motions.
During the conference, the court instructed the parties that it would not rule on the
State’s motion to dismiss until it had first ruled on Mashburn’s discovery motion.
The court further advised the parties that it would set a briefing schedule to allow
Mashburn to respond to the State’s motion to dismiss before ruling on it.2
On March 30, 2010, the State sent a proposed order to the Rule 32 court
summarily dismissing Mashburn’s petition for the reasons stated in its motion.
Contrary to what the court had previously advised the parties, and before ruling on
Mashburn’s motion for discovery or setting a briefing schedule on the motion to
dismiss, the court signed and entered the proposed order dismissing Mashburn’s
petition on April 1, 2010. Unfortunately, the clerk of court did not serve the
dismissal order as required by Alabama law. See Ala. R. Crim. P. 34.5 (“Upon the
entry of any order in a criminal proceeding made in response to a motion, other
1

Rule 32 of the Alabama Rules of Criminal Procedure governs available post-conviction
remedies under Alabama law.
2

The State disputes this account of the March 3 conference, but the district court accepted it for
purposes of its timeliness order and there is no basis in the record to challenge it.

3

Case: 15-11408

Date Filed: 10/26/2017

Page: 4 of 23

than an order made in open court, the clerk shall, without undue delay, furnish all
parties a copy thereof by mail or by other appropriate means approved by the
judge.”). Thus, both Mashburn and the State were unaware that Mashburn’s Rule
32 petition had been dismissed on April 1, 2010. Neither party learned about the
dismissal until approximately sixteen months later.
The parties agree that under Alabama law, an appeal from the dismissal of a
Rule 32 petition must be filed within 42 days of the dismissal order. See Ex parte
Wright, 860 So. 2d 1253, 1254 (Ala. 2002) (noting that Rule 32 proceedings are
subject to the 42-day appeal period of Ala. R. App. P. 4(a)(1)). Thus, the appeal
period for the dismissal of Mashburn’s Rule 32 petition expired on May 13, 2010.
See id. Not surprisingly, because Mashburn was not notified of the dismissal order
when it was issued or at any time during the following 42 days, he did not file a
timely appeal of the dismissal order.
On August 23, 2011, counsel for the State inquired about the status of
Mashburn’s Rule 32 petition and learned that the petition had been dismissed on
April 1, 2010. The State’s counsel immediately informed Mashburn’s attorney
about the dismissal, and he advised Mashburn’s attorney that he would not oppose
a petition seeking an out-of-time appeal of that order pursuant to Rule 32.1(f) of
the Alabama Rules of Criminal Procedure. Rule 32.1(f) provides for an out-oftime appeal when the failure to timely appeal the dismissal of a Rule 32 petition
4

Case: 15-11408

Date Filed: 10/26/2017

Page: 5 of 23

was “without fault on the petitioner’s part.” Ala. R. Crim. P. 32.1(f). A petition
for an out-of-time appeal under Rule 32.1(f) must be filed within six months of
discovering the dismissal. See Ala. R. Crim. P. 32.2(c) (“[T]he time for filing a
petition under rule 32.1(f) to seek an out-of-time appeal from the dismissal . . . of a
petition previously filed under any provision of Rule 32.1 shall be six (6) months
from the date the petitioner discovers the dismissal.”).
On September 8, 2011, sixteen days after learning about the dismissal of his
Rule 32 petition, Mashburn filed a pleading titled “Motion to Set Aside or Vacate
the Court’s Order Dismissing Petitioner’s Rule 32 Motion.” The State objected to
this pleading, arguing that it should have been styled as a petition for an out-oftime appeal under Rule 32.1(f) rather than as a motion to set aside or vacate the
dismissal order. In response to the State’s objection, Mashburn filed a new
pleading on October 12, 2011 titled “Amended Petition for Relief from Judgment
Pursuant to Rule 32.1(f).” Among other relief, the amended Rule 32.1(f) petition
sought an out-of-time appeal from the April 1, 2010 dismissal of the Rule 32
petition.
The Rule 32 court held a hearing on Mashburn’s Rule 32.1(f) petition on the
same day it was filed. The court acknowledged during the hearing that Mashburn
had not received notice of the April 1, 2010 dismissal order, and it expressly found
that the failure to timely appeal the order was not Mashburn’s fault. Based on
5

Case: 15-11408

Date Filed: 10/26/2017

Page: 6 of 23

those findings, the court granted Mashburn’s Rule 32.1(f) petition to file an out-oftime appeal.
Mashburn subsequently appealed the dismissal of his Rule 32 petition to the
Alabama Court of Criminal Appeals on November 18, 2011. See Mashburn v.
State, 148 So. 3d 1094, 1105 (Ala. Crim. App. 2013). The Court of Criminal
Appeals permitted the out-of-time appeal and affirmed the dismissal of
Mashburn’s Rule 32 petition on the merits on July 12, 2013. See id. at 1105–62
The Alabama Supreme Court denied certiorari on the out-of-time appeal on
February 21, 2014, concluding Mashburn’s state Rule 32 proceedings. See id. at
1094.
C.

Federal Habeas Petition

Mashburn filed his § 2254 petition for federal habeas relief on September
26, 2014. The State moved to dismiss the petition as barred by the one-year statute
of limitations of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2244(d)(1). The district court granted the State’s motion
to dismiss Mashburn’s § 2254 petition as untimely. Mashburn appealed the
timeliness ruling, and this Court issued a certificate of appealability as to the
following issues: (1) whether Mashburn’s petition is timely as a result of statutory
tolling under § 2244(d)(2) and (2) whether equitable tolling applies under the
circumstances of this case.
6

Case: 15-11408

II.

Date Filed: 10/26/2017

Page: 7 of 23

DISCUSSION
A.

Standard of Review

We review de novo the district court’s determination that Mashburn’s
§ 2254 petition is time-barred. Dolphy v. Warden, Cent. State Prison, 823 F.3d
1342, 1344 (11th Cir. 2016). We also review de novo the district court’s resolution
of underlying questions of law and its application of legal tolling principles to the
facts. Cadet v. Florida Dep’t of Corr., 853 F.3d 1216, 1221 (11th Cir. 2017). We
review the district court’s factual findings for clear error. Id.
B.

AEDPA’s Statute of Limitations and Tolling Principles

AEDPA includes a one-year statute of limitations for filing a § 2254
petition. See 28 U.S.C. § 2244(d)(1) (“A 1-year period of limitation shall apply to
an application for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court.”). The limitations period begins to run on the date the
petitioner’s conviction becomes “final by the conclusion of direct review or the
expiration of the time for seeking such review.” 3 Id. § 2244(d)(1)(A). It is
statutorily tolled for “[t]he time during which a properly filed application for State
post-conviction or other collateral review . . . is pending.” Id. § 2244(d)(2). In
addition, it is “subject to equitable tolling in appropriate cases.” Holland v.
Florida, 560 U.S. 631, 645 (2010).
3

There are three other possible dates for commencement of the limitations period, but none of
those dates are applicable here. See 28 U.S.C. § 2244(d)(1)(B)–(D).

7

Case: 15-11408

C.

Date Filed: 10/26/2017

Page: 8 of 23

Mashburn’s Tolling Arguments

Applying the above legal principles, the AEDPA limitations period for
Mashburn’s § 2254 petition began running when the Supreme Court denied
certiorari in his direct appeal on June 1, 2009. See 28 U.S.C. § 2244(d)(1)(A).
The limitations period ran for 142 days until Mashburn filed his Rule 32 petition
on October 21, 2009, at which point 223 days remained on the AEDPA clock.
Thereafter, the limitations period was statutorily tolled while Mashburn’s Rule 32
petition was “pending.” See id. § 2244(d)(2).
Ordinarily, the AEDPA clock would have resumed running when
Mashburn’s Rule 32 appeal period from the April 1, 2010 dismissal order expired
on May 13, 2010. Assuming that is the case, the AEDPA limitations period would
have expired 223 days later on December 22, 2010, a date that is several years
prior to the date when Mashburn filed his § 2254 petition. But Mashburn argues
that his compliance with Alabama law in successfully seeking an out-of-time
appeal under Rule 32.1(f) restored the pendency of his Rule 32 petition, such that
the petition remained pending—for purposes of AEDPA’s statutory tolling
provision, § 2244(d)(2)—from the date Mashburn filed the petition on October 21,
2009 until the date the Alabama Supreme Court denied certiorari and concluded
Mashburn’s Rule 32 proceeding, on February 21, 2014. Alternatively, Mashburn
argues that the AEDPA limitations period should be equitably tolled from the date
8

Case: 15-11408

Date Filed: 10/26/2017

Page: 9 of 23

the trial court dismissed his petition (April 1, 2010) until he received permission to
file an out-of-time appeal under Rule 32.1(f) (October 12, 2011), at which point
statutory tolling under § 2244(d)(2) was again triggered until the out-of-time
appeal was concluded on February 21, 2014.
If either statutory or equitable tolling is applied in the way Mashburn
proposes, 223 days remained on the AEDPA clock as of February 21, 2014, and
Mashburn’s § 2254 petition was timely when he filed it 217 days later on
September 26, 2014. As explained below, we agree with the district court that
Mashburn’s statutory tolling argument is precluded by binding circuit precedent,
but we conclude that equitable tolling applies under the unique and exceptional
circumstances of this case.
1.

Mashburn’s out-of-time appeal did not restore the pendency of
his Rule 32 petition for purposes of AEDPA’s statutory tolling
provision.

The tolling provision at issue here states that: “The time during which a
properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall not be counted toward”
the AEDPA limitations period. 28 U.S.C. § 2244(d)(2). The Supreme Court has
held that a state post-conviction petition remains pending for purposes of this
provision during the time between a lower court’s adverse ruling on the petition
and the petitioner’s filing of a timely notice of appeal. See Carey v. Saffold, 536
9

Case: 15-11408

Date Filed: 10/26/2017

Page: 10 of 23

U.S. 214, 219–20 (2002). This Court has clarified that, assuming the petitioner
does not file a notice of appeal, a state post-conviction petition remains pending for
purposes of AEDPA’s tolling provision during the time in which the petitioner
could have filed a timely notice of appeal under state law. See Cramer v. Sec’y,
Dep’t of Corr., 461 F.3d 1380, 1383 (11th Cir. 2006).
Under Saffold and Cramer, Mashburn’s Rule 32 petition was pending for
purposes of AEDPA tolling until the Rule 32 appeal period expired on May 13,
2010. When the appeal period lapsed, Mashburn’s Rule 32 petition was no longer
pending in the state court, and Mashburn did not file any other state court
pleadings sufficient to toll the AEDPA limitations period until September 8, 2011,
by which time the limitations period had long since expired. Nevertheless,
Mashburn argues that his success in receiving permission to file an out-of-time
appeal under Rule 32.1(f) restored the pendency of his Rule 32 petition such that
the petition was pending under AEDPA—and the AEDPA limitations period thus
statutorily tolled—from the date he filed the Rule 32 petition on October 21, 2009
until the date the Alabama Supreme Court ultimately denied certiorari on February
21, 2014.
Mashburn’s statutory tolling argument is foreclosed by this Court’s decision
in Moore v. Crosby, 321 F.3d 1377 (11th Cir. 2003). In Moore, the Court
considered the precise issue raised by Mashburn’s statutory tolling argument:
10

Case: 15-11408

Date Filed: 10/26/2017

Page: 11 of 23

whether a § 2254 petitioner’s out-of-time state appeal can retroactively toll an
otherwise expired AEDPA limitations period. See Moore, 321 F.3d at 1378–79.
Based on the plain language of § 2244(d)(2), the Court held that it cannot. Id. at
1381. The Court noted that § 2244(d)(2) “does not encompass a period of time in
which a state prisoner does not have a ‘properly filed’ post-conviction application
actually pending in state court.” Id. (emphasis added). An out-of-time motion for
appeal, the Court observed, is not actually pending until it is filed, and it does not
“relate back so as to toll idle periods” of time on the AEDPA clock. Id. Thus, the
Court reasoned, an out-of-time appeal filed after the AEDPA limitations period has
expired “does not operate to revive” it. 4 Id.
Mashburn’s attempt to distinguish Moore is unpersuasive. Admittedly, the
argument for statutory tolling was less straightforward in Moore than it is in this
case. See Moore, 321 F.3d at 1378. The petitioner in Moore filed two belated
state appeals of the denial of his Florida Rule 3.850 petition, the first of which had
been denied and the second of which was still pending when the district court
dismissed his § 2254 as petition untimely. Id. In addition, the belated appeal in

4

The other circuits that have addressed the issue generally have agreed that a belated or out-oftime appeal of a state post-conviction proceeding cannot revive an expired AEDPA clock. See
Fernandez v. Sternes, 227 F.3d 977, 980 (7th Cir. 2000) (Easterbrook, J.)(“That a request [for
appeal] may be resuscitated does not mean that it was ‘pending’ in the interim.”); Melancon v.
Kaylo, 259 F.3d 401, 407 (5th Cir. 2001) (Jolly, J.) (holding that an application for further
appellate review ceases to be “pending” after the appeal period has lapsed); Streu v. Dormire,
557 F.3d 960, 966 (8th Cir. 2009) (Colloton, J.) (“[A]n application is not ‘pending’ between the
expiration of the time for appeal and the filing of a petition for belated appeal.”).

11

Case: 15-11408

Date Filed: 10/26/2017

Page: 12 of 23

Moore arguably was necessitated by defense counsel’s oversight rather than the
state court’s failure to serve its dismissal order as in this case. See id. But these
factual distinctions are immaterial. The general rule announced in Moore, which
was based on a plain-language interpretation of AEDPA’s tolling provision, is
equally applicable to the factual scenario presented here. See id. at 1381.
Moreover, the Court in Moore did not rely on counsel’s alleged fault or oversight
as a consideration underlying its reasoning. See id.
We are similarly unpersuaded by Mashburn’s argument that Moore has been
abrogated by the Supreme Court’s decision in Jimenez v. Quarterman, 555 U.S.
113 (2009), which dealt with the starting date for AEDPA’s limitations period as
defined by § 2244(d)(1)(A) (starting the limitations period when the direct appeal
period ends) rather than the tolling provision of § 2244(d)(2) (staying the running
of the limitations period while post-conviction review is pending). The defendant
in Jimenez moved in state court for leave to file an out-of-time direct appeal, based
on the fact that the Texas appellate court had improperly served its order
dismissing the defendant’s direct appeal to the wrong jail address. See Jimenez,
555 U.S. at 116 (emphasis added). The Texas court granted the motion, and the
defendant proceeded to exhaust his state remedies by pursuing an out-of-time
direct appeal and, subsequently, state habeas relief. See id. At the conclusion of
his state post-conviction proceeding, the defendant filed a § 2254 petition, the
12

Case: 15-11408

Date Filed: 10/26/2017

Page: 13 of 23

timeliness of which depended on a finding that the AEDPA statute of limitations
began to run when the defendant’s out-of-time direct appeal, rather than his
initially dismissed direct appeal, became final. See id. at 116–17. The Court held
that the petition was timely, explaining that § 2254(d)(1)(A), by its terms, points to
the date on which the entirety of the state direct appellate review process is
completed as the starting date for the AEDPA limitations period. Id. at 119.
According to the Court, the starting date must therefore “reflect the conclusion of
[a defendant’s] out-of-time direct appeal, or the expiration of the time for seeking
review of that appeal.” Id. at 121.
Given that Jimenez involved a different provision of AEDPA’s statute of
limitations, there is no basis for concluding that it abrogated Moore. Moore was
based on a plain-language interpretation of the term “pending” as used in
AEDPA’s tolling provision, § 2244(d)(2). See Moore, 321 F.3d at 1381. Jimenez
did not consider the meaning of the term “pending” or otherwise address the tolling
provision of § 2244(d)(2). Moreover, the Jimenez Court expressly characterized its
holding as a “narrow” one, namely:
[W]here a state court grants a criminal defendant the right to file an
out-of-time direct appeal during state collateral review, but before the
defendant has first sought federal habeas relief, his judgment is not yet
‘final’ for purposes of § 2244(d)(1)(A).
Jimenez, 555 U.S. at 121. Mashburn’s case does not involve an out-of-time direct
appeal or otherwise implicate § 2254(d)(1)(A).
13

Case: 15-11408

Date Filed: 10/26/2017

Page: 14 of 23

Nor is Moore inconsistent with Carey v. Saffold, 536 U.S. 214 (2002), as
Mashburn suggests. As indicated above, the Supreme Court held in Saffold that a
state post-conviction petition remains pending during the time between a lower
state court’s adverse decision and the filing of a timely notice of appeal to a higher
state court. See Saffold, 536 U.S. at 220. The Saffold Court explained that “an
application is pending as long as the ordinary state collateral review process is ‘in
continuance.’” Id. at 219–20 (emphasis added). Saffold was decided before, and is
entirely consistent with, Moore. Read together, the two cases establish that (1) a
state post-conviction proceeding remains pending, and thus tolls the AEDPA
limitations period, until a decision on the petition is appealed or the ordinary time
for appeal expires, but (2) when the appeal period expires, the limitations period
resumes running, and it is not retroactively tolled by a belated appeal.
Finally, we reject Mashburn’s argument that this Court’s silence on the
timeliness issue in Loggins v. Thomas, 654 F.3d 1204 (11th Cir. 2011) implies that
a belated appeal can retroactively toll the AEDPA limitations period, in spite of
our precedent in Moore. The parties did not raise a timeliness issue in Loggins,
and this Court did not, nor was it required to, discuss or make any rulings on the
issue. 5 See Day v. McDonough, 547 U.S. 198, 205 (2006) (“A statute of

5

In fact, it is unclear whether Loggins presented a timeliness issue because the defendant in
Loggins filed his § 2254 petition within one year of being resentenced from death to life without
parole pursuant to Roper v. Simmons, 543 U.S. 551 (2005), which held it unconstitutional to

14

Case: 15-11408

Date Filed: 10/26/2017

Page: 15 of 23

limitations defense . . . is not jurisdictional, hence courts are under no obligation to
raise the time bar sua sponte.” (emphasis in original) (internal quotation marks
omitted)). Thus, nothing should be assumed from the Court’s silence in Loggins as
to timeliness.
In short, Mashburn has failed to either distinguish Moore in any material
way or show that Moore has been abrogated by the Supreme Court or abandoned
by this Court. Applying Moore, Mashburn’s Rule 32 petition was no longer
pending for purposes of AEDPA’s statutory tolling provision as of May 13, 2010.
Mashburn’s subsequent out-of-time appeal under Rule 32.1(f) tolled the AEDPA
limitations period during the time in which it was pending, but the out-of-time
appeal did not restore the pendency of Mashburn’s initial Rule 32 petition or
otherwise revive the already-expired AEDPA limitations period.
2.

Equitable tolling is warranted under the circumstances.

Nevertheless, we hold that equitable tolling is appropriate under the
particular facts of this case, and that Mashburn’s § 2254 petition is timely when
equitable tolling is properly applied. Equitable tolling is “an extraordinary remedy
limited to rare and exceptional circumstances and typically applied sparingly.”
Thomas v. Att’y Gen., Florida, 795 F.3d 1286, 1291 (11th Cir. 2015) (internal
execute a defendant who was under the age of eighteen when he committed his crimes. See
Ferreira v. Sec’y, Dep’t of Corr., 494 F.3d 1286, 1293 (11th Cir. 2007)(“AEDPA’s statute of
limitations begins to run when the judgment pursuant to which the petitioner is in custody, which
is based on both the conviction and the sentence the petitioner is serving, is final.”).

15

Case: 15-11408

Date Filed: 10/26/2017

Page: 16 of 23

quotation marks omitted). It is available to a defendant who can show that (1) he
pursued his rights diligently but (2) some “extraordinary circumstance” prevented
his timely filing of a § 2254 petition. Id.
The State does not dispute that Mashburn meets the extraordinary
circumstances requirement. This Court has recognized that a “lengthy delay
between the issuance of a necessary order and an inmate’s receipt of it” can
constitute an extraordinary circumstance that warrants equitable tolling “if the
delay prevented the inmate from filing a timely federal habeas corpus petition.”
Drew v. Dep’t of Corr., 297 F.3d 1278, 1288 (11th Cir. 2002), overruled on other
grounds by Pace v. DiGuglielmo, 544 U.S. 408, 417 (2005). There is no question
that such a delay occurred here. On October 21, 2009, with 223 days remaining on
the AEDPA clock, Mashburn filed a Rule 32 petition for post-conviction relief.
On April 1, 2010, the Rule 32 court summarily dismissed Mashburn’s petition.
Yet, because the clerk of court failed to serve or otherwise notify Mashburn of its
dismissal order, the 42-day appeal period expired on May 13, 2010. before
Mashburn even knew his Rule 32 petition had been dismissed. When the appeal
period expired, the AEDPA clock resumed running and likewise expired, again
before Mashburn even realized his Rule 32 petition had been dismissed.
Although it is a closer question, we also conclude that Mashburn exercised
sufficient diligence under the circumstances to invoke equitable tolling. As a
16

Case: 15-11408

Date Filed: 10/26/2017

Page: 17 of 23

condition to pursuing federal habeas relief under AEDPA, a petitioner must
“invoke one complete round of the State’s established appellate review process.”
Saffold, 536 U.S. at 220. Mashburn attempted to fulfill that condition—and to
preserve his federal habeas rights—by filing a timely Rule 32 petition in state court
on October 21, 2009, with 223 days remaining on the AEDPA clock. Mashburn
reasonably expected the AEDPA clock to be tolled as long as his Rule 32 petition
was pending. See 28 U.S.C. § 2244(d)(2). But unbeknownst to Mashburn and
without any notice to him, the Rule 32 court dismissed his petition on April 1,
2010, triggering the resumption of the AEDPA clock on May 13, 2010. Because
the clerk of court failed to serve the dismissal order, neither Mashburn nor the
State was aware that the Rule 32 petition had been dismissed, and thus neither
became aware that the AEDPA clock had started running again until sixteen
months later.
The State argues that Mashburn could have learned about the dismissal of
his Rule 32 petition sooner if he had made the proper inquiries, and it suggests that
his failure to do so indicates a lack of diligence. Under the unusual circumstances
of this case, we believe Mashburn acted with reasonable diligence. See Holland,
560 U.S. at 653 (noting that the diligence required to invoke equitable tolling is not
“maximum feasible diligence” but rather “reasonable diligence” (internal quotation
marks omitted)). The Rule 32 court had assured Mashburn, in a conference held
17

Case: 15-11408

Date Filed: 10/26/2017

Page: 18 of 23

on March 3, 2010 to discuss the pending motions in the case, that the court would
not rule on the State’s motion to dismiss until it had first (1) ruled on Mashburn’s
pending discovery motion and (2) set a briefing schedule permitting Mashburn to
respond to the State’s arguments in favor of dismissal. Mashburn had no reason to
suspect the court would, contrary to its representations, summarily dismiss his Rule
32 petition without ruling on the outstanding discovery motion, setting a briefing
schedule, or otherwise giving Mashburn an opportunity to even respond to the
State’s dismissal arguments.6 The failure of service compounded the problem:
Mashburn understandably assumed that dismissal of his Rule 32 petition would not
occur without notice to him, as required by Alabama law. See Ala. R. Crim. P.
34.5.
As soon as he became aware of the dismissal, Mashburn acted quickly to
seek an out-of-time appeal pursuant to Rule 32.1(f). Although a petitioner has six
months from when he learns about the dismissal of his Rule 32 petition to seek an
out-of-time appeal under Rule 32.1(f), Mashburn filed his first motion to set aside
the dismissal on September 8, 2011, only sixteen days after he was advised of the
dismissal order. In response to the State’s objection that the September 8 pleading
was improperly styled, Mashburn filed a new pleading on October 12, 2011
6

Apparently the State also felt no need to inquire about the status of Mashburn’s Rule 32
petition, as evidenced by the fact that it waited for seventeen months after the status conference
with the court to ask about the progress of the case.

18

Case: 15-11408

Date Filed: 10/26/2017

Page: 19 of 23

seeking relief from the dismissal pursuant to Rule 32.1(f). Following a hearing,
the trial court acknowledged that Mashburn had not received notice of its April 1,
2010 dismissal order and it expressly determined that Mashburn’s failure to timely
appeal the order was not due to any fault of Mashburn or his counsel.
This Court has found that the diligence requirement was met, and that
equitable tolling was warranted, under similar circumstances. See Knight v.
Schofield, 292 F.3d 709, 711 (11th Cir. 2002). Although he had been assured by
the court clerk, when he inquired about the case, that he would be notified as soon
as an order was entered, the defendant in Knight received no notice of the denial of
his state post-conviction petition. Id. at 710. When the defendant inquired again
sixteen months later, the clerk told him the petition had been denied several
months before. Id. Unbeknownst to the defendant, the denial had triggered the
commencement of his AEDPA clock and the AEDPA limitations period had
expired before he discovered that his state petition had been denied. Id. This
Court determined that the defendant had exercised sufficient diligence to warrant
equitable tolling although he had waited sixteen months to inquire about his case,
stating: “It is understandable that [the defendant] did not make any inquiries [for
sixteen months] because the Georgia Supreme Court clerk had assured him that he
would be notified as soon as a decision was made.” Id. at 711. See also Spottsville
v. Terry, 476 F.3d 1241, 1245 (11th Cir. 2007) (finding equitable tolling
19

Case: 15-11408

Date Filed: 10/26/2017

Page: 20 of 23

appropriate where the petitioner’s untimely filing was the result of the state court’s
misleading instructions).
The same reasoning applies here. Given the Rule 32 court’s representations
at the March 3 conference, and the fact that Mashburn received no notice of the
dismissal order in spite of state law requiring service of such orders, Mashburn
acted with reasonable diligence to preserve his right to assert his federal habeas
claims pursuant to § 2254. Accordingly, Mashburn has shown sufficient diligence
to warrant equitable tolling.
Finally, we reject the State’s argument that Mashburn’s § 2254 petition is
untimely even after the application of equitable tolling. In support of this
argument, the State contends that equitable tolling can only apply until a petitioner
receives notice of an adverse order, which in this case occurred on August 23,
2011. Under the State’s theory, when Mashburn’s counsel became aware of the
dismissal order on August 23, 2011, the AEDPA limitations period resumed
running. and it ran for sixteen days between August 23, 2011 and September 8,
2011, the date on which Mashburn filed his first pleading seeking an out-of-time
appeal. Thus, according to the State, only 207 days remained on the AEDPA clock
as of September 8, 2011. Assuming the limitations period was then statutorily
tolled pursuant to § 2244(d)(2) while Mashburn’s out-of-time appeal was pending
and until the conclusion of his Rule 32 proceeding on February 21, 2014, the State
20

Case: 15-11408

Date Filed: 10/26/2017

Page: 21 of 23

argues that his § 2254 petition was due on September 16, 2014 and that his filing
on September 26, 2014 was several days late.
Contrary to the State’s argument, there is no bright-line rule requiring that,
in every case, equitable tolling must end on the precise date the petitioner receives
notice of an adverse order. See Holland, 560 U.S. at 651 (emphasizing “equity’s
resistance to rigid rules”); Spottsville, 476 F.3d at 1245 (noting that equitable
tolling “requires the examination of the facts in each case” (internal citation marks
omitted)). In support of its assertion that equitable tolling ends immediately as
soon as the petitioner is aware of an adverse order, the State cites this Court’s
statement that the defendant in Knight “was entitled to have the time limitations of
AEDPA equitably tolled until the date that he received notice that the state court
had denied relief.” See Knight, 292 F.3d at 711. That rule made sense in Knight,
because the adverse order at issue there finally concluded the defendant’s state
post-conviction proceedings and fully exhausted his state remedies, such that the
defendant was immediately in a position to file a federal habeas petition as soon as
he received notice of the adverse order. See id.
In this case, Mashburn was not immediately in a position to file a federal
habeas petition on the date he received notice of the dismissal of his Rule 32
petition. Rather, Mashburn had to complete two additional levels of state appellate
review in order to fully exhaust his state remedies. Once he was notified of the
21

Case: 15-11408

Date Filed: 10/26/2017

Page: 22 of 23

dismissal on August 23, 2011, Mashburn worked expeditiously to complete the
required additional levels of review. Although Alabama law gave Mashburn six
months from the date he learned about the dismissal to file an out-of-time appeal,
Mashburn submitted a motion to set aside the dismissal order on September 8,
2011, sixteen days after he received notice of the dismissal, and a revised motion
for an out-of-time appeal under Rule 32.1(f) shortly thereafter on October 12,
2011, in response to the State’s objection that the September 8 pleading was not
styled properly. Given the necessity of completing an out-of-time appeal under
Rule 32.1(f) in order to exhaust his state remedies, we hold that equitable tolling
encompasses the brief period of time required for Mashburn to prepare and file the
pleadings needed to successfully secure such an appeal.7
The State does not dispute that statutory tolling applies from the date
Mashburn filed his Rule 32 petition on October 9, 2009 until the Rule 32 appeal
period expired on May 13, 2010, and that statutory tolling applies while
Mashburn’s out-of-time appeal formally was pending between October 12, 2011
and February 21, 2014. We hold that equitable tolling applies from the date the
Rule 32 appeal period expired on May 13, 2010 until Mashburn filed a pleading
successfully seeking an out-of-time appeal under Rule 32.1(f) on October 12,
7

We need not—and do not—decide whether equitable tolling would have covered the full six
months provided by Alabama law to file an out-of-time appeal under Rule 32.1(f), but we note
that equitable tolling “asks whether federal courts may excuse a petitioner’s failure to comply
with federal timing rules.” Holland, 560 U.S. at 650 (emphasis in original). Thus, the equitable
tolling inquiry generally “does not implicate a state court’s interpretation of state law.” Id.

22

Case: 15-11408

Date Filed: 10/26/2017

Page: 23 of 23

2011. Based on those dates, Mashburn had 223 days remaining on his AEDPA
clock when his rule 32 proceeding concluded on February 21, 2014, and his § 2254
petition was thus timely when filed 217 days later on September 26, 2014.
III.

CONCLUSION
For the foregoing reasons, we REVERSE the district court’s order

dismissing Mashburn’s § 2254 petition as time-barred and REMAND for a
consideration of the claims asserted in the petition on the merits.

23