Cadet v. Fla. Dep't of Educ.

• Decision Date: 24 February 2017
• Docket Number: No. 12-14518,12-14518
• Citation: 853 F.3d 1216
• Parties: Ernest CADET, Petitioner-Appellant, v. State of FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

853 F.3d 1216

Ernest CADET, Petitioner-Appellant,

v.State of FLORIDA DEPARTMENT OF CORRECTIONS, Respondent-Appellee.

No. 12-14518

United States Court of Appeals, Eleventh Circuit.

February 24, 2017

Janice Louise Bergmann, Federal Public Defender's Office, FORT LAUDERDALE, FL, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, MIAMI, FL, for Petitioner-Appellant.

Mark John Hamel, Pam Bondi, Attorney General's Office, WEST PALM BEACH, FL, for Respondent-Appellee.

Before ED CARNES, Chief Judge, WILSON and FAY, Circuit Judges.

ON PETITION FOR REHEARING

ED CARNES, Chief Judge:

Ernest Cadet has filed a petition for rehearing en banc, which also serves under our rules as a petition for rehearing before the panel. See 11th Cir. R. 35, I.O.P. 2. At least until an order granting or denying the petition for rehearing en banc is issued, a panel retains authority to modify its decision and opinion. Id. We take advantage of the opportunity to clarify our decision in order to prevent any misunderstanding of it. We grant the petition for rehearing to the panel to the extent that we vacate our previous opinion, Cadet v. Fla. Dep't of Corr. , 742 F.3d 473 (11th Cir. 2014), and substitute in its place the following one.

I.

The Antiterrorism and Effective Death Penalty Act imposes a one-year statute of limitations period for filing a federal habeas petition challenging a state court judgment. 28 U.S.C. § 2244(d)(1). The limitations period is subject to equitable tolling. Holland v. Florida , 560 U.S. 631, 645, 130 S.Ct. 2549, 2560, 177 L.Ed.2d 130 (2010). Defining the circumstances that justify equitable tolling of that limitations period is a work in progress, the significant work on it having been done in three Supreme Court decisions. See Maples v. Thomas , 565 U.S. 266, 132 S.Ct. 912, 181 L.Ed.2d 807 (2012) ; Holland , 560 U.S. 631, 130 S.Ct. 2549 ; Lawrence v. Florida , 549 U.S. 327, 127 S.Ct. 1079, 166 L.Ed.2d 924 (2007) ; see also Menominee Indian Tribe of Wisc. v. United States , 577 U.S. ––––, 136 S.Ct. 750, 755–57, 193 L.Ed.2d 652 (2016) ; Christeson v. Roper , 574 U.S. ––––, 135 S.Ct. 891, 190 L.Ed.2d 763 (2015) (discussing the Holland and Maples equitable tolling requirements). This case requires us to determine the current test for equitable tolling of the § 2244(d) statute of limitations period, which requires interpreting what the Supreme Court said about it in those decisions.

II.

In 2000, Ernest Cadet was convicted in Florida of battery and sexual battery of the five-year-old daughter of a friend of his, crimes for which he was sentenced to life imprisonment. His convictions were affirmed on direct appeal. See Cadet v. State , 809 So.2d 43 (Fla. 4th DCA 2002), cert. denied , 828 So.2d 384 (Fla.2002). The judgment of conviction became final 90 days later, on December 23, 2002, when the time for seeking a writ of certiorari from the United States Supreme Court expired. See McCloud v. Hooks , 560 F.3d 1223, 1227 (11th Cir. 2009). On that same date, Cadet's one-year statute of limitations for filing a federal habeas petition began to run. See 28 U.S.C. § 2244(d)(1)(A).

On October 30, 2003—311 days after his convictions became final—Cadet filed a pro se state habeas petition, which statutorily tolled the federal limitations period until January 22, 2004, the date his state habeas proceedings came to an end. See id. § 2244(d)(2) ("The time during which a properly filed application for State post-conviction or other collateral review ... is pending shall not be counted toward any period of limitation under this subsection."). Another 49 days of untolled time elapsed until Cadet, on March 11, 2004, filed a pro se motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. Before Cadet filed that motion, attorney Michael Goodman, who had represented him on direct appeal, reviewed and edited it pro bono for Cadet. The Rule 3.850 motion suspended the running of the federal habeas limitations period but with only five days of the period remaining.

After the State had received more than a year's worth of extensions to respond to Cadet's state post-conviction motion, Goodman filed a notice of appearance in the state trial court indicating that he would be representing Cadet during the remainder of the Rule 3.850 proceedings. The state trial court later denied Cadet's Rule 3.850 motion, and a Florida district court of appeal affirmed the denial on August 9, 2006. See Cadet v. State , 935 So.2d 14 (Fla. 4th DCA 2006) (table decision). That court's mandate issued on August 25, 2006, restarting the running of the federal limitations period and giving Cadet until August 30, 2006, just five more days, to file a § 2254 petition. See Nyland v. Moore , 216 F.3d 1264, 1267 (11th Cir. 2000) (holding that a Florida post-conviction motion remains pending until the appellate court's mandate issues).

During the pendency of the Rule 3.850 proceedings, Goodman and Cadet had at least five discussions about the limitations period for filing a federal habeas petition. In at least some of those discussions, based on what his fellow prisoners had said to him, Cadet told Goodman that he did not think that they had "much time" left to file a § 2254 petition. In response, Goodman mistakenly and repeatedly assured Cadet that they had one year from the resolution of his state post-conviction motion to file a federal petition. Goodman based those assurances on his own misreading of § 2244(d)(1). Reading the statutory provision is all that Goodman did to determine how to calculate the running of the limitations period. He did not research the matter.

After the state court of appeal's decision affirming the denial of his Rule 3.850 motion but before the mandate issued, Cadet became increasingly anxious about the federal limitations period and insisted that Goodman file a § 2254 petition "right away." Goodman reassured Cadet that he had one year from the end of his Rule 3.850 appeal to file a federal petition. Cadet "forcefully but respectfully" disagreed with Goodman's calculation of the filing deadline, explaining that "jailhouse lawyers" had advised him that he did not have much time left to a file a § 2254 petition and repeatedly asking Goodman, "Are you sure? Are you sure?" The jailhouse lawyers had not calculated a precise deadline for Cadet, and he believed that he had a few weeks left to file a § 2254 petition when he actually had only five days left after the mandate issued. Again, Goodman assured Cadet that there was ample time to file a federal habeas petition, rhetorically asking him, "who are you going to believe, the real lawyer or the jailhouse lawyer?" The majority of the conversations between Cadet and Goodman about the statute of limitations period occurred before the period ran out on August 30, 2006.

Goodman eventually put his advice in writing in a letter to Cadet dated September 29, 2006, one month after the limitations period had run out. Goodman's letter, to which he attached copies of § 2244(d) and the Florida appellate court decision in Cadet's Rule 3.850 case, asserted: "As you [ ] can see you have one year after the denial of your appeal to file for Habeas relief." Cadet eventually accepted that advice because Goodman, unlike the jailhouse lawyers, was a real lawyer.

Goodman ultimately filed a § 2254 petition on Cadet's behalf on August 23, 2007. That would have been timely with two days to spare had Goodman's understanding of the statute of limitations been correct. But because his understanding was incorrect, the filing was almost a full year late; the limitations period had expired on August 30, 2006. Cadet was ordered to show cause why his federal habeas petition should not be dismissed as untimely. Goodman responded that the petition was timely because it had been filed within one year of the issuance of the mandate by the Florida appellate court in the appeal from the denial of the state post-conviction motion. The State replied that the petition was untimely and explained why. That prompted Goodman to conduct some research, realize his mistake, and feel "horrendous."

Now conceding the untimeliness of the § 2254 petition, Goodman argued for equitable tolling of the federal limitations period based on the fact that he had miscalculated the filing deadline and repeatedly assured Cadet that it did not begin to run until after the denial of his state post-conviction motion. Goodman was later discharged as counsel and a federal public defender was appointed to represent Cadet.

After an evidentiary hearing, a magistrate judge recommended that the district court conclude that equitable tolling applied, which would save Cadet's petition from being dismissed as untimely. The magistrate judge found that Cadet had exercised due diligence in his efforts to timely file a § 2254 petition in light of the "undisputed facts" that he "repeatedly argued with Goodman about his calculation of the deadline and [he had insisted] that the petition be filed immediately." The magistrate judge also concluded that while Goodman's initial misreading of the statute of limitations was "simple attorney error" that did not warrant equitable tolling, his failure to investigate further when confronted with Cadet's doubts and his "hollow assurances" to Cadet that his calculation was correct amounted to "constructive abandonment," an extraordinary circumstance sufficient to merit relief.

The State objected to the magistrate judge's report and recommendation, contending that Goodman had not constructively abandoned Cadet because he had maintained regular contact with Cadet, had responded to his concerns about the filing deadline, and had not deliberately deceived him. The district court sustained the State's objections and dismissed Cadet's § 2254 petition as time-barred. While adopting the magistrate judge's factual findings and his legal conclusion that Cadet had exercised due diligence in pursuing his rights, the district court...