United States District Court, M.D. Georgia, Macon Division
SHAWN C. RUTLAND, Plaintiff,
Warden STANLEY WILLIAMS, Defendant.
T. TREADWELL, JUDGE.
the Court is the Recommendation (Doc. 12) of U.S. Magistrate
Judge Charles H. Weigle. The Magistrate Judge recommends the
Court grant the Respondent's Motion to Dismiss (Doc. 9)
the Petitioner's § 28 U.S.C. 2254 habeas corpus
petition for failure to comply with the one-year statute of
limitations imposed by the Antiterrorism and Effective Death
Penalty Act (AEDPA), 28 U.S.C. § 2244(d). Doc. 12 at 1.
The Petitioner has objected to the Recommendation (Doc. 13),
specifically the Magistrate Judge's determination that
the Petitioner has not established “extraordinary
circumstances” to justify equitable tolling and that
the application of AEDPA's one-year statute of
limitations does not infringe on the Petitioner's Fifth
Amendment due process rights. Doc. 13 at 1, 4. The Court has
performed a de novo review of the portions of the
Recommendation to which the Petitioner objects, and the Court
accepts and adopts the findings, conclusions, and
recommendations of the Magistrate Judge. The Recommendation
is ADOPTED as amended and made the order of
Court agrees with and adopts the Magistrate Judge's
finding that the Petitioner did not establish an
“extraordinary circumstance” to warrant equitable
tolling. Doc. 12 at 8. The trial judge's instructions
were not “affirmatively misleading” and, further,
any potential confusion on the Petitioner's part was
mitigated by the fact that he was represented by counsel at
the time. As the Magistrate Judge pointed out, the
Petitioner's trial counsel in fact stated that he
discussed the statute of limitations with the Petitioner.
Doc. 11-1 at 4. Nothing else in the record corroborates that
Petitioner's trial counsel properly explained the statute
of limitations issue or establishes whether trial counsel
worked to clarify any misunderstanding on the part of the
Petitioner. But even if counsel failed to do so, such a
failure does not warrant equitable tolling. Whether attorney
negligence could rise to a level to qualify as an
“extraordinary circumstance” is
unclear. However, even if it could, the record does
not support anything more than mere negligence on the part of
the Petitioner's trial counsel, if that. Moreover,
“pro se litigants, like all others, are deemed to know
of the one-year statute limitations [for federal habeas
petitions]. . . . [A]ny such requirement of actual notice
would virtually eviscerate the statute of limitations.”
Outler v. United States, 485 F.3d 1273, 1282 n. 4
(11th Cir. 2007).
the Recommendation (Doc. 12) is ADOPTED as
amended. The Respondent's Motion to Dismiss
(Doc. 9) is GRANTED and the Petitioner's
§ 2254 petition is DISMISSED.
Court can issue a Certificate of Appealability (COA) only if
a petitioner “has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To merit a COA, the Court must determine
“that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322,
336 (2003) (internal quotation marks and citations omitted).
If a procedural ruling is involved, the petitioner must show
“jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a
constitutional right and 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 Petitioner has not made these
showings, and accordingly the COA is DENIED.
Additionally, because there are no non-frivolous issues to
raise on appeal, an appeal would not be taken in good faith.
See 28 U.S.C. § 1915(a)(3). Any motion to
proceed in forma pauperis on appeal is therefore
 The Recommendation states that
“attorney negligence, however gross or egregious, does
not qualify as an extraordinary circumstance for purposes of
equitable tolling.” Doc. 12 at 8 (quoting Spears v.
Warden, 605 F. App'x 900, 904 (11th Cir. 2015)).
However, the accuracy of this statement is unclear. See
generally Cadet v. Fla. Dep't of Corr., 853 F.3d
1216 (11th Cir. 2017). The Supreme Court appeared to move
away from this rigid standard and instead expressed that
gross negligence or misconduct-such as an attorney abandoning
the representation of a client-could potentially rise to the
level of an “extraordinary circumstance”
warranting equitable tolling of AEDPA's statute of
limitations. See generally Holland v. Florida, 560
U.S. 631 (2010) (disapproving of the appeals court's
rigid standard that attorney negligence could not warrant
equitable tolling as inconsistent with principles of equity
and intimating that negligence that rises above a
“garden variety claim of excusable neglect” may
warrant equitable tolling); but see Cadet, 853 F.2d
at 1227 (interpreting Maples v. Thomas, 565 U.S. 266
(2012), as clarifying Holland to apply only to
instances of attorney abandonment and that “attorney
negligence, even gross or egregious negligence, does not by
itself qualify as an ‘extraordinary circumstance'
for purposes of equitable tolling”). Here, this
distinction is inconsequential. Even if gross negligence
could qualify as an “extraordinary circumstance,
” the record does not support such gross negligence on
the part of the Petitioner's trial counsel. Cf.
Holland, 560 U.S. at 653-54 (determining that
counsel's failure to file the petitioner's petition
and to timely inform him ...