Eugene Hammond v. David Frazier , 275 F. App'x 896 ( 2008 )

[DO NOT PUBLISH]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.
3