Cadet v. State of Florida Department of Corrections
Filing
70
OPINION ORDER Rejecting Report and Recommendations, sustaining respondent's objections, granting motion to dismiss with prejudice & closing case. Certificate of Appealability: DENIED. Signed by Judge Daniel T. K. Hurley on 8/1/12. (lr) Modified Text on 8/1/2012 (ra).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 07-80758-HURLEY
EARNEST CADET,
petitioner,
vs.
STATE OF FLORIDA,
DEPARTMENT OF CORRECTIONS,
respondent.
___________________________________/
ORDER SUSTAINING RESPONDENT’S OBJECTIONS TO REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE,
DISMISSING PETITIONER’S § 2254 PETITION WITH PREJUDICE &
DENYING CERTIFICATE OF APPEALABILITY
THIS CAUSE is before the court pursuant to remand of the Eleventh Circuit Court of
Appeals for findings on the appropriateness of equitable tolling and further proceedings consistent
with the United States Supreme Court’s opinion in Holland v. Florida, __ U.S. __, 130 S. Ct. 2549,
177 L. Ed. 2d 130 (2010) [ECF No. 48]. This court earlier recommitted the matter to the magistrate
judge for reconsideration of whether any misconduct chargeable to petitioner’s attorney rises to the
level of egregious attorney misconduct warranting equitable tolling under the standard articulated
in Holland. [ECF No.38 ]. On March 28, 2012, Magistrate Judge Hopkins conducted an evidentiary
hearing on the issues [ECF No. 68], and on June 1, 2012, issued his report and recommendation
concluding that the factual circumstances presented warrant equitable relief. The State of Florida
filed its objections to the report on July 25, 2012 [ECF No. 69] .
Following independent review of the entire record, and de novo review of the parts of the
magistrate judge’s report to which formal written objection has been lodged, the court accepts the
fact findings of Magistrate Judge Hopkins, but rejects the legal conclusions as the court does not find
the evidence adequate to meet the second prong of the “equitable tolling” standard articulated in
Holland v. Florida, __ U.S. __, 130 S. Ct. 2549, 2560, 177 L.Ed. 2d 130 (2010).
The limitations period in §2244(d) is “subject to equitable tolling” in appropriate cases specifically, where the petitioner shows “(1) that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way” and presented timely filing.” Holland at
2560, 2562. The court agrees with the Magistrate Judge that the petitioner in this case has
demonstrated due diligence sufficient to satisfy the first factor.
However, “a garden variety claim of excusable neglect,” such as a simple “miscalculation”
that leads a lawyer to miss a filing deadline, does not warrant equitable tolling.” Holland at 2564;
Hutchinson v. Florida, 677 F.3d 1097 (11th Cir. April 19, 2012)(dicta)(counsel’s failure to timely
file state collateral petition and misunderstanding of time for filing §2254 petition would not be
sufficient to show egregious conduct warranting equitable tolling, despite petitioner’s multiple
inquiries regarding statute of limitations, demands for immediate filing of state collateral petition
and threats to discharge the attorney for failure to comply with requests). But cf. Dillon v. Conway,
642 F.3d 358 (2nd Cir. April 26, 2011)(finding extraordinary circumstances warranting equitable
tolling of habeas limitations period where petition was filed only one day late; petitioner was
persistent in maintaining contact with attorney hired to file habeas petition, specifically urged
attorney to avoid waiting until the last day to file petition, and attorney breached his promise to file
before the last day when he filed on what he mistakenly believed was last day), citing Holland at
2564 -65.
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Rather, in order to rise to the level necessary to constitute an “extraordinary circumstance”
for purpose of tolling §2254's limitation period, attorney negligence must be so egregious as to
amount to an effective abandonment of the attorney-client relationship. Holland at 2564-65.
Employing this standard, the court concludes that counsel’s error in failing to correctly calculate the
deadline for filing the habeas petition does not constitute a constructive abandonment of the attorneyclient relationship. To the contrary, it constitutes professional malpractice, i.e. negligence, during
the attorney-client relationship. It is regrettable, but this is in fact a “garden variety” of negligence
that will not excuse the failure to file a timely petition. Compare Rivas v. Fischer, ___ F.3d ___,
2012 WL 2686117 (2d Cir. July 9, 2012)(insufficient evidence of extraordinary attorney misconduct
where no evidence counsel ignored or contravened instructions from client) with United States v.
Martin, 408 F.3d 1089, 1096 (8th Cir. 2005)(counsel’s conduct sufficiently egregious so as to justify
equitable tolling when counsel consistently lied to petitioner and his wife regarding filing deadline,
telling them that there was no deadline, neglected to file documents on petitioner’s behalf and falsely
represented he had filed post conviction motion) and United States v. Riggs, 314 F.3d 796 (5th Cir.
2002)(attorney’s intentional deceit could warrant equitable tolling if petitioner shows he reasonably
relied on attorney’s deceptive misrepresentations).
It is accordingly ORDERED AND ADJUDGED:
1. The fact findings of the Magistrate Judge are accepted and adopted in full, but the legal
conclusions and ultimate recommendations of the Magistrate Judge favoring equitable tolling are
REJECTED [ECF No. 63].
2.
The respondent’s objections to the magistrate judge’s report [ECF No. 69] are
SUSTAINED and respondent’s motion to dismiss the petition as time-barred is GRANTED.
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3. The petitioner’s petition for writ of habeas corpus pursuant to 28 U.S.C. §2254 is
DISMISSED WITH PREJUDICE.
4. Pursuant to 28 U.S.C. § 2253(c) and Rule 11 of the Rules Governing Section 2254 Cases
in the United States District Courts, the court further declines to issue a certificate of appealability.
A certificate of appealability appropriately issues where the court finds that jurists of reason would
find it debatable whether the petition states a valid claim for the denial of a constitutional right or
that jurists of reason would find it debatable whether the district court was correct in its procedural
ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court does not believe reasonable jurists
would find the court’s procedural ruling here debatable or wrong. Accordingly, a certificate of
appealability shall not issue in light of the second prong of the Slack standard.
5. Although the court declines to issue a certificate of appealability, Mr. Cadet may timely
seek a certificate of appealability from the United States Court of Appeals for the Eleventh Circuit
under Fed. R. App. P. 22. See Rule 11(a) of the Rules Governing Section 2254 Cases in the United
States District Courts.
6. The Clerk of Court is directed to enter this case as CLOSED and declare all pending
motions as moot.
DONE AND ORDERED in Chambers at West Palm Beach, Florida this 1st day of August,
2012.
___________________________
Daniel T. K. Hurley
United States District Judge
cc. All counsel
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