1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 16a0139p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

S TEVEN B RADLEY G ILES , Petitioner-Appellant ,

v

.

G ARY B ECKSTROM , Warden, Respondent-Appellee

. ┐ │ │ │ │ │ │ │ ┘ No. 14-6494

Appeal from the United St ates District Court for the Western District of Kentucky at Paducah. No. 5:14-cv-00085—Thomas B. Ru ssell, District Judge.
Decided and Filed: June 15, 2016
Before: COLE, Chief Judge; DAUGHT REY and DONALD, Circuit Judges.

_________________ COUNSEL

ON BRIEF: Krista A. Donal, DEPARTMENT OF PUBLIC ADVOCACY, LaGrange, Kentucky, for Petitioner. Perry T. Rya n, OFFICE OF THE KE NTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Respondent.

_________________ OPINION

_________________ MARTHA CRAIG DAUGHTREY, Circuit Judge. In this federal ha beas case, we are asked to determine when the one-year statute of limitations for filing a petition under 28 U.S.C. § 2244(d)(1)(A) began to run against petitioner Stev en Bradley Giles, a Ke ntucky state prisoner. If Kentucky Rule of Civil Procedure 76.30 contro ls the calculation, G iles’s federal habeas 

### >No. 14-6494 Giles v. Beckstrom Page 2

petition was timely filed. But the district cour t interpreted United States Supreme Court Rule 13 as controlling the dispute and dism issed the petition as untimely.
Ordinarily, the one-year calcula tion would not present a proble m. The limitations period would be triggered following completion of a pr isoner’s direct appeal, either by the date on which a timely petition for certi orari was denied by the United St ates Supreme Court or, if no
certiorari petition was filed, 90 days from entry of the state court’s judgment when the time to file such a petition expired. The question in th is case is when the 90 days begins to run under Kentucky Rule 76.30(2)(a), which makes a Kentuc ky Supreme Court order or opinion “final” 21 days after it is issued, in or der to allow time for a possible pe tition to rehear. The district court held that delayed finality under Kentucky’s procedure did not entitle Giles to an additional 21 days beyond the normal one-year limitations period. As a result, the district court held, his federal habeas petition was not timely filed. The court also determined that there was no basis for equitable tolling. We agree, and we therefore affirm the di strict court's order dismissing
Giles’s habeas action.

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), the one-year statute of limitations for filing a federal habeas petition be gins to run from the latest of four dates—in this case “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review .” 28 U.S.C. § 2244(d)(1)(A) (emphasis added). 1 As the Supreme Court explained in Gonzalez v. Thaler , that provision consis ts of “two prongs”:

1 Pursuant to 28 U.S.C § 2244(d)(1), the limitations period for federal habeas petitions runs from the latest of the following four dates: (A) “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review”; (B) “the date on which the impediment to filing an application created by State action . . . is removed”; (C) “the date on which the constitutional right asserted was initially recognized by the Suprem e Court”; or (D) “the date on which the factual predicate of the claim . . . could have been discovered through the exercise of due diligence.” 28 U.S. C § 2244(d)(1)(A)-(D). The only relevant provision here is § 2244(d)(1)(A).No. 14-6494 Giles v. Beckstrom Page 3

Each prong—the “conclusion of direct re view” and the “expiration of the time for seeking such review”—relates to a distinct category of petitione rs. For petitioners who pursue direct review all the way to th is Court, the judgment becomes final at the “conclusion of direct review”—when this Court affirms a conviction on the merits or denies a petition for certiorari . For all other petiti oners, the judgment becomes final at the “expiration of the time for seeking such review”—when the time for pursuing direct review in this Court, or in state court, expires.
__ U.S. __, 132 S.Ct. 641, 653-54 (2012) (discussing 28 U.S.C. § 2244(d)(1)(A)).
In state criminal cases, such as this one, the time to file a petition for a writ of certiorari is “prescribed by rules of the Suprem e Court.” 28 U.S.C. § 2101(d). In turn, Supreme Court Rule 13.3 allows a petitioner 90 days from “the entry of the judgment or order sought to be reviewed” to file a timely petition for certiorari. Sup. Ct. R. 13.3. The central issue in this case is whether “the date of the entry of the judgment or order” in Rule 13.3 should be interpreted to refer to the date on which the Kentucky Supreme Court issu ed its opinion and or der affirming Giles’s conviction, or to the later date on which the judgment became “final” under Kentucky Rule
76.30.
The relevant portions of Kentucky Rule of Ci vil Procedure 76.30, applic able to both civil and criminal appeals in Kentucky, are as follows:
(a) An opinion of the Supreme Court becomes final on the 21st day after the date of its rendition unless a petition [for reh earing] has been ti mely filed or an extension of time has been granted for that purpose.

* * * (e) When an opinion has become final, the clerk of the appellate court that rendered it shall . . . note th e filing on the proper docket.

* * * (f) No mandate shall be required to effect uate the final decision of an appellate court, whether entered by order or by opinion.
Ky. R. of Civ. P. 76.30(2)(a),(e),(f); see also Ky. R. Crim. P. 12.02 (applying Kentucky Rule of Civil Procedure 76 to criminal actions).
Giles was convicted of second-degree mansla ughter in Kentucky state court in 2007 and was sentenced to 15 years’ imprisonment. Afte r the Kentucky Court of Appeals affirmed hisNo. 14-6494 Giles v. Beckstrom Page 4

conviction, Giles appealed to the Supreme Court of Kentucky, which likewise affirmed his conviction in an opinion dated October 21, 2010, as indicated on the court’s docket on that same day. Under Kentucky Rule 76.30(2)(a), the opinion was considered final for state-law purposes 21 days later on November 12, 2010, as reflected on the docket by a notation labeled “finality.”

Giles did not file a petition for certiorari in the United States Supreme Court, although he had 90 days in which to do so. That 90-day period, measured from st ate court’s decision on October 21, 2010, ended on January 19, 2011. Instead, Giles filed a post-conviction challenge to his conviction in state court on February 23, 2011, at which point 34 days of the one-year limitations period for his federa l habeas petition had elapsed. The parties agree that the limitations period was tolled while Giles’s post- conviction action was pe nding in state court, leaving 331 days yet to run. His motion to vacat e the judgment of conviction in his case was denied by the trial court; the Kentucky Court of Appeals affirmed the denial; and the state Supreme Court denied discretionary review on May 15, 2013. On May 16, 2013, the limitations period began to run again, see Fed. R. Civ. P. 6(a), and expire d 331 days later, on April 12, 2014. Because April 12 was a Saturday, Giles had until Monday, April 14, 2014, to file his petition.
See Fed. R. Civ. P. 6(a)(1)(c).
On May 1, 2014, Giles filed his current hab eas petition in federal court, claiming
ineffective assistance of counsel. The warden moved to dismiss Giles’s habeas petition as untimely, pointing out that the statute of limitations made the habeas pet ition due no later than April 12, 2014. Giles resi sted the motion to dismiss, contendi ng that the date on which the state court judgment became “final” (November 12, 2010) was the date that triggered the limitations period; that the limitations period di d not expire until May 2, the day after his habeas petition was filed; and that his petition was therefore time ly. The district court agreed with the warden, concluding that Giles’s petition was untimely and ruling that equitable tolling was not appropriate. Giles now appeals that decision.
The timeliness of Giles’s federal habeas petiti on depends on whether “the date of entry of the judgment or order,” identified in Supreme Court Rule 13.3 as triggering the time to file a certiorari petition, refers to the date that the Kentucky Supreme Court issued its opinion or to the
date that the decision was noted on the court’s dock et as “final.” Giles argues on appeal that theNo. 14-6494 Giles v. Beckstrom Page 5

latter date controls, relying principally on Palmer v. Commonwealth , 3 S.W.3d 763 (Ky. Ct. App. 1999), in which the state appeals court held that the limitations period for filing a state postconviction action runs from the date of finality of the judgment on direct appeal, not from entry of the trial court’s j udgment of conviction. Id. at 764-65. But the choice that was dispositive in
Palmer is not the choice we face here, making that case inapposite from Gile s’s. Instead, we
look to Rule 13.3:
The time to file a petition for a writ of certio rari runs from the date of entry of the judgment or order sought to be reviewed , and not from the issuance date of the mandate (or its equivalent under local practice ).
Sup. Ct. R. 13.3 (emphasis added).
Two conclusions quickly become apparent from the language of Rule 13.3. First, the
date to file is related to the “order sought to be reviewed,” which in this case quite obviously would be the Kentucky Supreme Court’s opinion a nd order, not the one-word notation of finality
added to the docket th ree weeks later. S econd, Kentucky’s appellate procedure formerly included the issuance of a mandate, but that requirement was eliminated by a 1981 amendment and replaced with entry of the not ation of finality 21 days after the last opinion or order in the

case. Compare Ky. R. Civ. P. 76.30 (1978) with Ky. R. Civ. P. 76.30 (1981). Because the language of the finality provision closely tracks that of the manda te provision that it replaced, 2 we conclude that the Kentucky rule on delayed finality replaced the formalistic device of the
mandate. See Hutson v. Commonwealth , 215 S.W.3d 708, 713 (Ky. Ct. App. 2006) (explaining that the “finality” rule has the same function as the “mandate” requirement). As a result, it is clear that the notation of finality is the “equiva lent [of a mandate] unde r local practice” and has no relevance to the calculation of time for filing a certiorari petition unde r Supreme Court Rule 13.3. It follows that Giles’s petition for habeas relief was filed 17 days too late.

2 For example, the 1981 version of Rule 76.30 states, in relevant part, “An opinion of the Supreme Court becomes final on the 21st day after the date of its rend ition unless a petition under Rule 76.32 has been timely filed or an extension of time has been granted for that purpose.” Ky. R. Civ. P. 76.30(2)(a) (1981). The 1978 version of Rule 76.30 states, in relevant part, “A mandate of the Supreme Court shall be issued on the 21st day after the date its opinion was rendered unless a petition under Rule 76.32 has been timely filed.” Ky. R. Civ. P. 76.30(2)(a) (1978). The strong similarities between the two statutes suppor t the conclusion that the finality procedure replaced the mandate procedure.No. 14-6494 Giles v. Beckstrom Page 6

Having determined that Giles’s petition wa s untimely, we need to decide only whether the limitations period should be tolled for equitabl e reasons. “[A] peti tioner is entitled to equitable tolling only if he shows (1) that he ha s been pursuing his rights diligently, and (2) that some extraordinary circumstances stood in his way and prevented timely filing.” Holland v.
Florida , 560 U.S. 631, 649 (2010) (internal quotation marks and citation omitted). In order for the limitations period to be tolled equitably based on attorney error, which is the claim here, the error must be “far more serious” than “a ga rden variety claim of excusable neglect.” Id. at 651- 52 (internal quotation marks and citation omitted).
Generally, an attorney’s misunderstanding of a filing deadline is not grounds for equitable tolling. See id. (“[S]imple ‘miscalculation’ that leads a lawyer to miss a filing
deadline” does not warrant equitable tolling.); Lawrence v. Florida , 549 U.S. 327, 336-37 (2007) (“Attorney miscalculation is simply not sufficient to warrant equitable tolling.”); Jurado v. Burt , 337 F.3d 638, 644 (6th Cir. 2003) (“Generally, a lawyer’s mistake is not a valid basis for equitable tolling.”) (internal quotation marks a nd citation omitted). Thus, the error made by Giles’s attorney in calculating the filing deadline for the habeas petition is not sufficient grounds for equitable tolling.

For the reasons set out above, we conclude that the district court co rrectly calculated the limitations period for the filing of Giles’s habeas petiti on. We also conclude that the district court correctly found that Giles’s attorney’s er ror in calculating the filing deadline was not an extraordinary circumstance warranting equitable tolling of the statute of limitations. We therefore AFFIRM the judgm ent of the district court.