FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 1, 2011

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-11822

Non-Argument Calendar

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D. C. Docket No. 07-80758-CV-DTKH

ERNEST CADET,

Petitioner-Appellant,

versus

STATE OF FLORIDA DEPARTMENT OF

CORRECTIONS,

Edwin G. Buss, Secretary,

Respondent-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(November 1, 2011)

Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.

PER CURIAM:
Petitioner, Ernest Cadet, is serving a life sentence in a Florida prison, having

been convicted, in May of 2000, of sexual battery of a child less than twelve years

of age and simply battery. On August 23, 2007, represented by counsel, Petitioner

petitioned the United States District Court for the Southern District of Florida for a

writ of habeas corpus pursuant to 22 U.S.C. § 2254. On January 30, 2009, the

district court denied the petition as time-barred by the statute of limitations of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L.No.

104-132, 110 Stat. 1214 (1996). Petitioner filed a notice of appeal, and the district

court issued certificate of appealability, thus allowing an appeal to go forward.

The certificate cites this issue:

the court finds a fairly debatable issue as to whether petitioner is in

procedural default on his claims, and specifically finds a debatable

issue on the question of whether he has demonstrated serious attorney

misconduct as to merit equitable tolling of some portion of the

limitations period for filing his federal habeas petition.

The district court’s interpretation and application of the statute of limitations

applicable here is a question of law that we review de novo. Hepburn v. Moore,

215 F.3d 1208, 1209 (11th Cir. 2000). We likewise review de novo the district

court’s decision regarding the application of equitable tolling. San Martin v.

McNeil, 633 F.3d 1257, 1265 (11th Cir. 2011), petition for cert. filed, (U.S. May

20, 2011) (No. 10-10678).

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The AEDPA imposes a one-year statute of limitations for the filing of §

2254 petitions. 28 U.S.C. § 2244(d)(1). Once the statute of limitations is

triggered, it can be tolled in two ways. See, e.g., Spottsville v. Terry, 476 F.3d

1241, 1243, 1245-46 (11th Cir. 2007). It can be tolled while state post-conviction

actions are pending, pursuant to 28 U.S.C. § 2244(d)(2). And it can be tolled

under the doctrine of equitable tolling; that is what Petitioner seeks here. Tolling

can occur based on extraordinary circumstances that are both beyond the

petitioner’s control and unavoidable even with diligence. Sandvik v. United States,

177 F.3d 1269, 1271 (11th Cir. 1999).

To establish equitable tolling, the petitioner must show: (i) that he has been

pursuing his rights diligently, and (ii) that some extraordinary circumstance stood

in his way and prevented timely filing. Holland v. Florida, 560 U. S. ___, ___,

130 S.Ct. 2549, 2562, 177 L.Ed.2d 130 (2010), rev’g 539 F.3d 1334 (11th Cir.

2008); San Martin, 633 F.3d at 1268. Equitable tolling is an extraordinary remedy

that is limited to rare and exceptional circumstances and typically applied

sparingly. Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009). A mistake by

counsel in calculating a limitations period is, standing alone, insufficient to justify

equitable tolling. Lawrence v. Florida, 549 U.S. 327, 336-37, 127 S.Ct. 1079,

1085, 166 L.Ed.2d 924 (2007).

3
In Holland, we held that attorney misconduct, even if it is negligent or

grossly negligent, cannot constitute the type of egregious attorney misconduct that

would warrant equitable tolling unless the petitioner offers proof of bad faith,

dishonesty, divided loyalty, mental impairment or similar circumstances. 539 F.3d

at 1339. In Melson, relying on our decision in Holland, we held that equitable

tolling was not warranted where the petitioner’s attorneys missed deadlines and

failed to communicate with the petitioner about the status of the case. Melson v.

Allen, 548 F.3d 993, 1001 (11th Cir. 2008), vacated, 130 S.Ct. 3491 (2010).

The Supreme Court subsequently reversed our decision in Holland, holding

that the test we employed was too rigid, and that cases involving anything other

than a “garden variety” claim of excusable neglect must be evaluated on a case-bycase basis. Holland, 560 U.S. at ___, 130 S.Ct. at 2563-64. One week later, the

Supreme Court vacated our opinion in Melson and remanded for further

consideration in light of its opinion in Holland. Melson, 561 U.S. at ___, 130 S.Ct.

at 3491-92. We subsequently remanded both cases to the respective district courts

for further proceedings consistent with the Supreme Court’s instructions. Holland

v. State, 613 F.3d 1053 (11th Cir. 2010); Melson v. Allen, 611 F.3d 1380 (11th Cir.

2010).

4
Upon careful review of the record and the parties’ briefs, we conclude that

the district court’s determination—that the misconduct by Petitioner’s attorney did

not rise to the level of extraordinary circumstances—was not based on the correct

standard as set forth in Holland. See 560 U.S. at ___, 130 S.Ct. at 2563-64.

Accordingly, we vacate the district court’s judgment and remand the case for

consideration of whether the circumstances present in this case rise to the level of

extraordinary circumstances under the appropriate standard.

VACATED AND REMANDED.

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