FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 DECEMBER 1, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-10435

Non-Argument Calendar

________________________

D. C. Docket No. 07-22002-CV-JLK

KELVIN STEWART,

Petitioner-Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

ATTORNEY GENERAL OF THE STATE OF FLORIDA,

Respondents-Appellees.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(December 1, 2009)

Before BARKETT, HULL and FAY, Circuit Judges.

PER CURIAM:
Kelvin Stewart, a Florida state prisoner proceeding pro se, appeals the

district court’s denial of his motion for relief from judgment, filed pursuant to

Fed.R.Civ.P. 60(b), in which he sought relief from the district court’s prior order

dismissing his 28 U.S.C. § 2254 petition as time-barred. Stewart does not dispute

that the federal petition was untimely filed. He argues, however, that the one-year

limitations period for filing a § 2254 petition should have been equitably tolled,

because (1) attorney Robyn Blake informed him that his state habeas petition had

been filed on November 4, 2004, when it was actually filed on December 22, 2004,

and (2) attorney Ana Davide failed to return his case file in a timely manner. He

asserts that Blake’s and Davide’s misconduct impeded his efforts to file his federal

§ 2254 petition within the limitation period. For the reasons set forth below, we

affirm.

I.

On August 1, 2007, Stewart signed and mailed this pro se § 2254 habeas

petition, raising several claims. Stewart asserted that his petition was filed timely

1

and listed the dates on which he had filed various state court motions. He asserted

that, on November 4, 2004, he filed a petition for writ of habeas corpus in state

Under the “mailbox rule,” the date a prisoner delivers a petition or other filing to prison 1

authorities for mailing is considered to be the date of filing with the court. Adams v. United

States, 173 F.3d 1339, 1341 (11th Cir. 1999).

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court. An appendix attached to Stewart’s petition contained a petition for writ of

habeas corpus, signed by Blake, which stated that a copy had been sent to the

Office of the Attorney General and the Office of the State Attorney on November

4, 2004.

The district court ordered Stewart to amend his original § 2254 petition,

noting that the original petition contained at least 75 inserted pages and portions of

transcripts and appellate briefs. Stewart filed an amended petition that again stated

that his state habeas corpus petition had been filed on November 4, 2004. He

attached a number of documents to his amended petition, which showed the

following. The Third District Court of Appeals affirmed Stewart’s convictions and

sentences on direct appeal on December 24, 2003. A state petition for writ of

habeas corpus, which was not signed, was stamped as filed on December 22, 2004.

The state court denied this petition on April 14, 2005. Stewart then filed a pro se

Rule 3.850 motion for post-conviction relief, which was delivered to prison

officials on June 9, 2005. The state court denied the motion on January 3, 2006.

Stewart’s notice of appeal was filed by attorney Davide on February 10, 2006. The

Third District Court of Appeals’s docket sheet for the Rule 3.850 appeal listed

Davide as Stewart’s attorney during the pendency of the appeal. The Florida

appellate court affirmed the denial of Stewart’s Rule 3.850 motion on December 6,

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2006, Stewart filed a pro se motion for rehearing, which was delivered to prison

officials on December 20, 2006. The Florida appellate court’s docket sheet

indicates that this motion was denied on January 10, 2007. Stewart then filed a

notice to invoke discretionary jurisdiction of the Florida Supreme Court, delivered

to prison officials on January 19, 2007, and the Florida Supreme Court’s denied

review on May 24, 2007.

The state responded that Stewart’s petition for writ of habeas corpus should

be dismissed as untimely because, even after taking into account the time in which

the limitations period was tolled, Stewart’s § 2254 petition was filed more than a

year after his convictions became final.

The magistrate judge filed a report and recommendation (“R&R”), which

recommended dismissing Stewart’s § 2254 petition as untimely. The magistrate

explained the procedural history of Stewart’s case as follows. The Florida

Supreme Court affirmed Stewart’s convictions and sentences on December 24,

2003. On December 22, 2004, Stewart filed a pro se petition for writ of habeas

corpus in the Florida appellate court. The Florida appellate court denied this

petition on April 14, 2005, and the database maintained by the Clerk of the Court

for the Third District Court of Appeal showed that “the case was disposed of

without mandate” on May 6, 2005. On June 9, 2005, Stewart filed a pro se motion

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for post-conviction relief, pursuant to Rule 3.850. The Florida trial court denied

this motion, the Florida appellate court affirmed the denial, and the Florida

Supreme Court, on May 24, 2007, denied Stewart’s petition for discretionary

review, as well as the writ of mandamus Stewart had filed in the Florida Supreme

Court. The magistrate noted that the present § 2254 petition was filed on August 1,

2007, more than two months after the conclusion of all state court proceedings.

The magistrate explained that the Antiterrorism and Effective Death Penalty

Act, (“AEDPA”), imposes a one-year statute of limitations on habeas petitions,

which begins to run when the judgment becomes final. It noted that the limitation

period is subject to equitable tolling “in ‘rare and exceptional cases.’” The

magistrate determined that Stewart’s convictions and sentences became final, at the

latest, on March 23, 2004, 90 days after the Third District Court of Appeals’ order

affirming his convictions on direct appeal. It found that, “even after giving Stewart

tolling credit for the time all postconviction proceedings remained pending, there

remains more than one-year of untolled time (i.e., a total of 374 days of untolled

time).” Therefore, the magistrate determined that Stewart’s petition was due in

federal court on or before July 23, 2007. The petition, however, was filed nine

days later, on August 1, 2007.

The magistrate noted that there was a discrepancy between the state court

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record and the timeline set forth in Stewart’s district court pleadings. Specifically,

Stewart indicated that his state habeas petition was filed on November 4, 2004, and

he included in the Appendix accompanying his original habeas petition “a

purported Petition for Writ of Habeas Corpus prepared and executed by attorney

Robyn Blake.” The magistrate noted, however, that the petition prepared by Blake

“indicates no court file-stamp date or any other indication from the state appellate

court that the particular petition was ever filed with the Florida Third District Court

of Appeal.” The magistrate also pointed out that the Third District Court of

Appeals’ docket “clearly indicates that Stewart proceeded pro se in the appellate

court proceeding and he was not represented by attorney Robyn M. Blake or any

other attorney.” Thus, it found that “[a]ny assertion by Stewart that he was

represented by counsel during the proceeding and that his state habeas corpus

petition was filed earlier than December 22, 2004 is unsubstantiated.”

The magistrate found that Stewart’s timely filing for state post-conviction

relief had no bearing on his present federal habeas petition, because “petitioners

who rely upon the timeliness of state post-conviction proceedings to satisfy the

requirements of AEDPA do so at their peril.” It also found that Stewart was not

entitled to equitable tolling based on a showing of actual innocence. Finally, the

magistrate concluded that Stewart failed to show that he “was in any way impeded

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by any unconstitutional State action in pursuing his direct appeal, state habeas

corpus proceedings, other postconviction proceedings and appeal from the denial

of such relief, or filing this federal petition for writ of habeas corpus.” It noted that

Stewart’s pro se status did not excuse the delay in filing. Because Stewart

“presented no valid justification supported by the record for his failure to timely

file his federal habeas corpus petition,” the magistrate recommended dismissing

the petition.

After noting that Stewart had not filed any objections to the R&R, the

district court affirmed and adopted the R&R, and dismissed as untimely Stewart’s

petition for writ of habeas corpus. The order of dismissal was entered on May 1,

2008. Subsequently, Stewart moved for, and the district court, on May 6, 2008,

granted a 60-day extension to file objections to the R&R. On July 3, 2008, Stewart

filed a request for an additional 10-day extension in which to file his objections.

The district court denied this extension, stating that Stewart’s objections had been

due by April 29, 2008.

On July 11, 2008, Stewart mailed his objections to the R&R, the following

of which are relevant to the instant appeal. Stewart contended that “extraordinary

circumstances” prohibited him from filing his § 2254 petition within the one-year

statute of limitations. First, he objected to the magistrate’s finding that he was not

7
represented by counsel when filing his state habeas petition, asserting that “an

agreement was entered in on November 1, 2004 between attorney Robin Blake and

Crystal Williams, on behalf of Stewart.” Stewart attached to his objections a copy

of the retainer agreement between Blake and Williams. He contended that Blake

promised him that she “would file and enter her notice of appearance immediately

upon receipt of an initial $2,000 cash payment.” Stewart asserted that he believed

Blake was representing him after Blake accepted the $2,000 payment. Stewart

asserted that Blake insisted, during a recent telephone call, that she filed the habeas

petition in state court, although Blake admitted that the date it was filed was “much

later than she originally claimed.” Stewart contended that it was only after the

filing of the R&R that he had any reason to believe Blake had not filed his habeas

petition in November 2004 or that Blake had not been acting as his attorney of

record. He asserted that Blake’s gross misrepresentations to him regarding the

filing of the habeas petition had a detrimental affect on his ability to accurately

calculate the deadline for filing his federal habeas petition.

Stewart also asserted that his ability to file his federal habeas petition

between May 24, 2007, the date of the Florida Supreme Court’s denial of

discretionary relief, and July 23, 2007, the end of the one-year statute of limitations

to file his federal petition, was impeded by Davide, who “maintained possession of

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his entire case file throughout the duration of this period.” Stewart asserted that he

and his family members contacted Davide on numerous occasions to retrieve the

records, but the records were not returned until July 17, 2007. He asserted that the

records in Davide’s possession included original trial transcripts, the state habeas

petition, the Rule 3.850 motion, and the briefs filed on direct appeal, as well as

during post-conviction appeals. Stewart argued that the actions of both Blake and

Davide were “sufficiently egregious to constitute the sort of rare and ‘extraordinary

circumstances’ that would justify the application of equitable tolling.”

Stewart attached to his objections a copy of the Third District Court of

Appeal docket sheet for the appeal of his Rule 3.850 motion. The docket sheet

indicated that Stewart was represented by Ana M. Davide during this appeal.

Stewart also attached a retainer agreement, “entered into on November 1, 2004

between CRYSTAL WILLIAMS, on behalf of KELVIN STEWART (“CLIENT”),

and ROBYN M. BLAKE, P.A. (“ATTORNEY”).” The agreement indicated that

Stewart retained Blake to represent him in filing a habeas corpus petition. A

certificate of service, signed by Blake, indicated that a copy of the retainer

agreement was mailed to the Office of the Attorney General and the Office of the

State Attorney on November 4, 2004.

On November 17, 2008, Stewart filed a motion for relief from judgment,

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indicating that the motion was brought pursuant to Fed.R.Civ.P. 60(b), and asking

the court to reverse (1) its order dismissing his § 2254 petition as untimely, and (2)

its order denying his motion for an additional 10-day extension to file objections to

the R&R. He also asked the court to consider the exhibits attached to his

objections to the R&R, and asserted that these exhibits would show why his § 2254

petition was filed late. The district court issued an order denying Stewart’s motion

for relief from judgment, stating that it had reviewed all the pleadings, including

Stewart’s objections to the R&R, and determined that the motion should be denied

“for the same reasons set forth in the Court’s Final Order of Dismissal.”

Stewart filed a motion for certificate of appealability, (“COA”), which the

district court denied. We issued a COA on the following issue only: “Whether the

district court erred in finding that Stewart’s petition for writ of habeas corpus, 28

U.S.C. § 2254, was not entitled to equitable tolling on the basis of attorney

misconduct?”

II.

Procedural Issues

Although the COA focuses on whether the district court properly rejected

Stewart’s equitable tolling claims, we first discuss several procedural issues. See

McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001) (noting that

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procedural issues that must be resolved before we can address the underlying claim

specified in a COA are presumed to be encompassed within the COA). Stewart

appeals the district court’s order denying his Rule 60(b) motion for relief from

judgment, in which Stewart asked the court to reverse (1) its order dismissing his

§ 2254 petition as untimely and (2) its order denying an additional 10-day

extension in which to file objections to the magistrate’s R&R. In his motion,

Stewart argued that the district court’s order denying the 10-day extension failed to

account for the previous 60-day extension it had granted and erroneously stated

that his objections had been due on April 29, 2008. He also asserted that the

exhibits attached to his objections to the R&R would show why his § 2254 petition

was not filed before the one-year AEDPA deadline.

We have acknowledged that “a Rule 60(b) motion is to be treated as a

successive habeas petition if it: (1) ‘seeks to add a new ground of relief;’ or (2)

‘attacks the federal court’s previous resolution of a claim on the merits.’”

Williams v. Chatman, 510 F.3d 1290, 1293-94 (11th Cir. 2007) (quoting Gonzalez

v. Crosby, 545 U.S. 524, 532, 125 S.Ct. 2641, 2648, 162 L.Ed.2d 480 (2005)).

However, where “a Rule 60(b) motion ‘attacks, not the substance of the federal

court’s resolution of a claim on the merits, but some defect in the integrity of the

federal habeas proceedings,’ the motion is not a successive habeas petition.” Id. at

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1294 (quoting Gonzalez, 545 at 532, 125 S.Ct. at 2648). A “claim” is “an asserted

federal basis for relief from a state court’s judgment of conviction.” Id. (citing

Gonzalez, 545 U.S. at 530, 125 S.Ct. at 2647).

In this instance, Stewart’s Rule 60(b) motion is not a successive habeas

petition. First, Stewart does not seek to add a new ground of relief. See Williams,

510 F.3d at 1293-94. Instead, he challenges the district court’s refusal to consider

his objections to the R&R and asserts that the exhibits attached to these objections

would bolster his argument that his § 2254 petition was entitled to equitable

tolling. Stewart also does not attack the district court’s prior resolution of a claim

on the merits. See id. at 1293-94. The district court did not address the claims

raised in Stewart’s original § 2254 petition, because it denied the petition as

untimely. See id. at 1294 (defining a “claim” as “an asserted federal basis for relief

from a state court’s judgment of conviction”). Accordingly, we do not consider

Stewart’s Rule 60(b) motion to be a successive habeas petition.

Stewart challenges two judgments in his Rule 60(b) motion: (1) the denial of

a 10-day extension in which to file objections to the R&R, and (2) the district

court’s order dismissing his § 2254 petition as untimely. We consider only the

district court’s dismissal of the § 2254 petition, because the denial of the 10-day

extension is not covered by the COA. See Diaz v. Dept. of Corr., 362 F.3d 698,

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702 (11th Cir. 2004) (noting that “[a]ppellate review in a § 2254 proceeding is

limited to the issues specified in the [COA]”). We consider Stewart’s arguments

regarding equitable tolling, even though these arguments were first raised in his

objections to the R&R, because the district court specifically stated that it had

considered Stewart’s objections to the R&R in denying his Rule 60(b) motion for

relief from judgment.

It appears that Stewart brings his motion for relief from judgment under

Fed.R.Civ.P. Rule 60(b)(6), which provides that “the court may relieve a party or

its legal representative from a final judgment, order, or proceeding

for . . . any . . . reason that justifies relief.” Fed.R.Civ.P. Rule 60(b)(6). We review

for abuse of discretion a district court’s denial of a Rule 60(b) motion for relief

from judgment. Williard v. Fairfield Southern Co., Inc., 472 F.3d 817, 821 (11th

Cir. 2006).

Equitable Tolling

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

habeas petition. 28 U.S.C. § 2244(d)(1). The limitation period under § 2244(d)

may be equitably tolled where the “movant untimely files because of extraordinary

circumstances that are both beyond his control and unavoidable even with

diligence.” Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999). We

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have noted that ordinary attorney negligence does not warrant equitable tolling.

See Downs v. McNeil, 520 F.3d 1311, 1325 (11th Cir. 2008) (reaffirming that

“ordinary attorney negligence does not warrant equitable tolling”). “When an

attorney miscalculates a deadline, fails to adequately raise a potentially meritorious

claim, or otherwise makes a run-of-the-mill mistake, a habeas petitioner must live

with the consequences of the error.” Id.

We have held that equitable tolling should not apply where an attorney

misadvised his client as to the triggering of the AEDPA’s one-year limitation.

Helton v. Sec’y, Dept. Of Corr., 259 F.3d 1310, 1313 (11th Cir. 2001). We

concluded that counsel’s conduct did not amount to an extraordinary circumstance,

and that Helton did not show due diligence because, even though his attorney put

him on notice that there was confusion in this area of the law, Helton did not do his

own research into the relevant provision. Id. In Downs, however, we vacated a

district court order dismissing a habeas petition as untimely based on counsel’s

alleged behavior that “ran the gamut from acts of mere negligence to acts of gross

negligence to acts of outright willful deceit.” Downs, 520 F.3d at 1323. Although

we viewed counsel’s behavior as a whole, “it [was] material to the Downs decision

that the alleged acts of attorney misconduct included affirmative

misrepresentations by counsel about the filing of a state habeas petition: such a

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filing would have tolled the federal habeas limitations period.” Holland v. Florida,

539 F.3d 1334, 1339 (11th Cir. 2008), cert. granted, No. 09-5327 (U.S. Oct. 13,

2009) (emphasis in original).

Stewart bases his argument for equitable tolling on the fact that Blake

informed him that she had filed his state habeas petition on November 4, 2004.

Assuming Stewart’s allegations are true, it would appear that Blake’s conduct was

more similar to the “overt deception” described in Downs, rather than mere

negligence or gross negligence, because Blake affirmatively misrepresented to

Stewart that a tolling motion had been filed. See Downs, 520 F.3d at 1322;

Holland, 539 F.3d at 1339. However, to be eligible for equitable tolling based on

attorney misconduct, a petitioner must show “not only ‘extraordinary

circumstances,’ but also circumstances that are beyond the petitioner’s control and

unavoidable even with diligence.” Downs, 520 F.3d at 1323. The record reflects

that a state habeas petition was filed on December 22, 2004. The Florida appellate

court’s docket sheet indicates that this document was filed by Stewart himself.

Since Stewart filed this document himself, he would have been aware that Blake

had not filed the state habeas petition on November 4th, as promised. Thus,

Stewart should have known that the limitations period had run untolled until

December 22, 2004. By exercising due diligence, he could have recalculated the

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deadline for filing his federal habeas petition, accounting for this additional,

untolled time. See id. Furthermore, as of December 22, 2004, the limitations

period had run untolled for only 274 days. Therefore, Stewart should have known,

on December 22, 2004, that after the state court ruled on his habeas petition, he

would have 91 days in which to file a federal petition. This stands in stark contrast

to Downs, in which counsel filed the petitioner’s state habeas petition only one day

prior to the expiration of the federal statute of limitations. See id. at 1322. We

specifically noted in Downs that the federal limitations period would have run by

the time that the petitioner received notice of the state court’s ruling on the state

habeas petition. See id.

Stewart also argues that he is entitled to equitable tolling because Davide

failed to return the case files to him until July 17, 2007. However, the magistrate

found that Stewart’s one-year statute of limitations did not expire until July 23,

2007. Because Stewart was filing pro se, the date on which he mailed the petition

would be considered the filing date. See Adams v. United States, 173 F.3d 1339,

1341 (11th Cir. 1999). Thus, after receiving the files from Davide, Stewart had six

days in which to prepare and submit his federal habeas petition. More importantly,

there is no evidence that Davide’s failure to return the record until July 23rd was

the result of any egregious misconduct. At the most, Davide’s failure to return the

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record in a timely fashion may be considered negligent. This mere negligence is

not the type of attorney misconduct that will trigger equitable tolling. See Downs,

520 F.3d at 1325. Because Stewart has failed to show that the untimeliness of his

petition was the result of “extraordinary circumstances” that were “unavoidable

even with diligence,” he failed to show that he was entitled to equitable tolling and

the district court correctly denied Stewart’s § 2254 petition and his motion for

relief from judgment. Accordingly, we affirm the district court’s denial of

Stewart’s motion for relief from judgment.

AFFIRMED.

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