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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13226
Non-Argument Calendar
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D.C. Docket No. 5:16-cv-00182-MTT-CHW
SHAWN C. RUTLAND,
Petitioner - Appellant,
versus
WARDEN,
Smith State Prison,
Respondent - Appellee.
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Appeal from the United States District Court
for the Middle District of Georgia
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(May 23, 2019)
Before WILSON, MARTIN, and HULL, Circuit Judges.
PER CURIAM:
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Shawn Rutland, a prisoner in Georgia serving a life sentence, appeals the
district court’s dismissal of his federal habeas petition for untimeliness. After
careful consideration, we affirm.
I.
On December 5, 2007, a jury convicted Rutland of armed robbery, hijacking
a motor vehicle, and aggravated assault. Rutland was sentenced to life in prison on
the armed robbery count, with twenty years of imprisonment to be served
consecutively on the hijacking charge and twenty years to be served concurrently
on the aggravated assault charge. During sentencing, the following exchange took
place between the court and counsel for Rutland:
Judge Stoddard: All right. You can file your motion for new trial, and
then for the procedure that you have in place to go ahead. You have
the right to file a habeas corpus as to this sentence, and it has to be filed
within four years of the date the conviction becomes final, either from
direct review or from any other kind of delay because of appellate
review or sentence review, but you have four years to file a habeas
corpus. Have you discussed that with [Rutland] as well?
Mr. Waller: Yes, Your Honor.
Rutland appealed his convictions and sentences to the Georgia Court of
Appeals, which affirmed in part, reversed in part, and remanded for
reconsideration of Rutland’s motion for a new trial. See Rutland v. State,
675
S.E.2d 506, 511 (Ga. App. 2009). On remand, the trial court reassessed Rutland’s
motion for a new trial under the correct legal standard and denied it. Rutland once
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again appealed to the Georgia Court of Appeals, which affirmed the decision on
March 3, 2010. He did not seek further review on direct appeal.
Some time in November 2012, Rutland hired his present counsel to
represent him in state habeas proceedings. On October 17, 2013, counsel filed a
state habeas application in the Superior Court of Tattnall County, Georgia, raising
a number of claims of ineffective assistance of counsel. The superior court held an
evidentiary hearing on Rutland’s claims and denied the application on February 2,
2015. Rutland then filed a petition for a certificate of probable cause with the
Georgia Supreme Court, which denied him leave to appeal on June 1, 2015. The
Georgia Supreme Court denied Rutland’s motion for reconsideration on July 6,
2015.
Rutland, still represented by present counsel, filed a federal petition for
habeas corpus in the Middle District of Georgia on May 18, 2016. He raised three
claims of ineffective assistance of counsel based on: (1) trial counsel’s failure to
obtain an eyewitness identification expert; (2) trial counsel’s failure to object to the
victim’s testimony that he was certain his attacker was the defendant; and (3) trial
counsel’s decision not to introduce into evidence the lead detective’s termination
from the police department for dishonesty. The state responded by filing a motion
to dismiss the petition as untimely.
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Rutland argued in opposition to the motion to dismiss that he was entitled to
equitable tolling and that his petition was timely as a result. He explained that he
was misled by the state trial court into thinking that he had four years to file any
habeas petition—be it state or federal. He argued that the state trial court’s
misleading instructions constituted an extraordinary circumstance that warranted
equitable timing.
The magistrate judge issued a report and recommendation recommending
that Rutland’s petition be dismissed as untimely. The district court adopted the
magistrate judge’s recommendation with some amendments and dismissed the
petition over Rutland’s objections. The district court rejected Rutland’s argument
that he was entitled to equitable tolling, finding that the trial judge’s instructions
“were not ‘affirmatively misleading’” and that, in any event, Rutland was
represented by counsel when the judge made his statement. The district court then
denied Rutland a certificate of appealability.
Rutland requested and received a certificate of appealability from this Court.
The only question on appeal is whether Rutland is entitled to equitable tolling of
his 28 U.S.C. § 2254 habeas petition based on the state court’s statements after
trial. It is to this question we now turn.
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II.
“We review de novo the dismissal of a habeas petition as untimely.”
Spottsville v. Terry,
476 F.3d 1241, 1243 (11th Cir. 2007). We review the district
court’s factual findings for clear error. Thompson v. Sec’y, Dep’t of Corr.,
595
F.3d 1233, 1235 (11th Cir. 2010) (per curiam).
III.
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) includes a
one-year statute of limitations for all state prisoners seeking to file federal habeas
petitions. 28 U.S.C. § 2244(d)(1). The clock begins running from “the date the
conviction becomes final by the conclusion of direct review or the expiration of the
time for seeking such review.”
Spottsville, 476 F.3d at 1243 (quotation marks
omitted). In this case, the statute of limitations began running on March 15,
2010—the last day Rutland could have moved for reconsideration of the state
appellate court’s decision to affirm his convictions on direct appeal or given notice
of intent to apply for certiorari with the Georgia Supreme Court. See O.C.G.A.
§ 1-3-1(d)(3); Ga. Sup. Ct. R. 38(1); Ga. R. App. Ct. 37(b).
Rutland therefore had until March 15, 2011 to file his federal habeas
petition, although the time would have been tolled for any “time during which a
properly filed application for State post-conviction or other collateral review is
pending.”
Spottsville, 476 F.3d at 1243 (alteration adopted) (quoting 28 U.S.C.
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§ 2244(d)(2)). Rutland did not seek state habeas relief until 2013 and waited until
2016 to seek federal habeas relief. This filing date rendered his federal filing
untimely under § 2244(d) unless equitable tolling applies.
“Equitable tolling can be applied to prevent the application of AEDPA’s
statutory deadline when extraordinary circumstances have worked to prevent an
otherwise diligent petitioner from timely filing his petition.”
Id. at 1245 (quotation
marks omitted). Such extraordinary circumstances can take the form of misleading
instructions from the state court, see
id. at 1245–46; attorney abandonment, see
Maples v. Thomas,
565 U.S. 266, 282–83,
132 S. Ct. 912, 923–24 (2012); or
“serious attorney misconduct” amounting to abandonment, Brown v. Sec’y, Dep’t
of Corrs., 750 F. App’x 915, 929 (11th Cir. 2018). The critical inquiry is whether
extraordinary circumstances beyond the petitioner’s control have prevented him
from adhering to AEDPA’s one-year statute of limitations.
Maples, 565 U.S. at
924, 132 S. Ct. at 283.
Rutland primarily takes issue with the district court’s finding that the trial
court’s statements were not “affirmatively misleading” and that he therefore failed
to establish an extraordinary circumstance that would warrant equitable tolling.
Rutland argues that by saying he had four years to file “a” habeas petition rather
than a state habeas petition, the trial court affirmatively misled him into thinking
that he had four years to file any habeas petition—be it state or federal. There is
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some merit to his position. Indeed, even the state seems to concede that the trial
court’s instructions were “confusing.” The state nonetheless argues that Spottsville
distinguishes between statements that are merely “confusing” and those that are
affirmatively misleading. We need not and do not adopt the state’s reasoning.
Even assuming equitable tolling applies, the state is correct that Rutland’s
petition is untimely. Rutland may have been lulled into inaction by the trial court’s
misleading instructions, but his current counsel should not have been. Present
counsel was hired in November 2012. From that point forward, it was counsel’s
experience and training—and not Rutland’s—that guided Rutland’s habeas
proceedings. The state is therefore correct that the period for equitable tolling
would have lapsed the moment Rutland procured the assistance of counsel, which
happened no later than November 30, 2012. Cf. Torres v. Long, 527 F. App’x 652,
654 n.1 (9th Cir. 2013) (unpublished) (per curiam) (“Because petitioners are not
entitled to equitable tolling on the basis of language abilities once they have
assistance from a translator, we would be on solid ground to presume any
entitlement to equitable tolling ended no later than December 10, 2004 [the day the
petitioner filed his second state court petition with a translator’s assistance].”
(emphasis added and citation omitted)).
Using November 30, 2012 as the new start date for AEDPA’s one-year
statute of limitations, Rutland had until November 30, 2013 to file his federal
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habeas petition. By our count, 321 days passed before he filed a state habeas
petition on October 17, 2013, which triggered statutory tolling until the conclusion
of his state habeas proceedings. See 28 U.S.C. 2244(d)(2). The state habeas
proceedings concluded on July 6, 2015, which was the date the Georgia Supreme
Court denied Rutland’s motion to reconsider the court’s denial of his certificate of
probable cause. At that point, Rutland had 45 days left of his one-year period to
file his federal habeas petition. However, Rutland, represented by present counsel,
filed his federal habeas petition 317 days later on May 18, 2016—well beyond the
45 days he had remaining. Thus, even with the benefit of equitable tolling,
Rutland’s habeas petition was indisputably untimely and properly dismissed.1
AFFIRMED.
1
In order for Rutland’s petition to be timely, he would need another basis for equitable
tolling to cover either the time before counsel filed his state habeas petition or after. He has not
offered any such basis here.
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