[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-13596

Non-Argument Calendar

________________________

D.C. Docket No. 6:08-cv-00159-MSS-GJK

HENRY LEE PETERSON, 

 Petitioner - Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, 

ATTORNEY GENERAL, STATE OF FLORIDA, 

 Respondents - Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(November 5, 2015)

Before HULL, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM: 

Case: 09-13596 Date Filed: 11/05/2015 Page: 1 of 6 
2

Henry Lee Peterson, now represented by counsel, appeals the district court’s 

dismissal of his pro se federal habeas corpus petition as time-barred. This Court 

granted Mr. Peterson a certificate of appealability (“COA”) as to whether he was 

entitled to equitable tolling. After review, we affirm the judgment of the district 

court.

I.

Mr. Peterson was convicted in 2000 of one count of capital sexual battery 

and sentenced to a term of life imprisonment. The Florida Fifth District Court of 

Appeal affirmed Mr. Peterson’s conviction and sentence on March 22, 2002. He 

had ninety days, or until June 20, 2002, to petition the United States Supreme 

Court for a writ of certiorari. When he failed to do so, his judgment of conviction 

became final on that date, which also started the clock on Mr. Peterson’s one-year 

statute of limitations for a federal habeas petition. See 28 U.S.C. § 2244(d)(1)(A).

Mr. Peterson’s counsel did not file a state postconviction motion until 

October 13, 2003, 117 days after the federal limitations period expired. The 

Florida trial court held a hearing on Mr. Peterson’s postconviction motion and

denied it on the merits on September 9, 2004. Counsel for Mr. Peterson failed to 

timely appeal, and on July 24, 2006, Mr. Peterson filed a pro se petition for a 

belated appeal. See Fla. R. App. P. 9.141(c). The Florida Fifth District Court of 

Appeal granted the petition and allowed Mr. Peterson an appeal, but ultimately it

Case: 09-13596 Date Filed: 11/05/2015 Page: 2 of 6 
3

affirmed the trial court’s denial of his postconviction motion. The mandate for that 

decision issued on January 28, 2008. Mr. Peterson filed his pro se federal habeas 

petition the following day.

The district court1 concluded that Mr. Peterson’s federal habeas petition was 

untimely. See Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000) (“A statecourt petition . . . that is filed following the expiration of the limitations period 

cannot toll that period because there is no period remaining to be tolled.”). 

Further, although the district court concluded that Mr. Peterson was diligent in 

pursuing his rights, it found that counsel’s negligence in failing to file a timely 

federal habeas petition was not an extraordinary circumstance warranting equitable 

tolling of the limitations period. Mr. Peterson appealed, and this Court granted 

him a COA on the issue of equitable tolling.

II.

The district court did not err in concluding that Mr. Peterson diligently 

pursued his rights.2

 See Holland v. Florida, 560 U.S. 631, 653 (2010) (stating that 

“reasonable diligence,” not “maximum feasible diligence,” is required to justify 

 1 We refer here to the district court’s second decision on the timeliness of Mr. Peterson’s 

petition. After the district court’s first order deeming the petition untimely, this Court declined 

to issue a COA, but the United States Supreme Court granted certiorari and remanded to this 

Court for further consideration in light of Holland v. Florida, 560 U.S. 631 (2010). Peterson v. 

McNeil, 562 U.S. 956 (2010). We remanded to the district court, and it issued the order we 

discuss here.

2 We review an equitable tolling claim de novo. See Lugo v. Sec’y, Fla. Dep’t of Corr., 

750 F.3d 1198, 1206 (11th Cir. 2014), cert. denied, Lugo v. Jones, 135 S. Ct. 1171 (2015).

Case: 09-13596 Date Filed: 11/05/2015 Page: 3 of 6 
4

equitable tolling). Mr. Peterson retained counsel in 2001 during the direct appeal 

process and instructed counsel “to proceed with [his] case to the fullest extent of 

the law.” Doc. 30 at 6-7.3

 After the direct appeal process ended, counsel again 

was retained to file Mr. Peterson’s postconviction motion. From that time, Mr. 

Peterson alleged, he “continually asked what would happen if he lost this 

[postconviction] motion . . . and if this was the last step he could take.” Id. at 7. 

“Counsel continually told [him] that all was well, that if this motion did not 

prevail, there was always the Federal courts.” Id. 

But all was not well. By the time counsel had filed Mr. Peterson’s state 

postconviction motion, his federal statute of limitations was blown. And counsel’s 

mistakes continued. When Mr. Peterson’s state postconviction motion was denied 

in September 2004, he told counsel “to take the necessary steps to go further.” Id. 

Counsel did not. Mr. Peterson was unaware that no appeal had been filed in his 

case until nearly two years later. When he found out, he wrote to counsel and 

asked why his postconviction motion had not been appealed. Counsel replied in 

July and August 2006 that he was going to proceed on Mr. Peterson’s behalf by 

filing a federal habeas petition. Again, counsel failed to do so. Instead, Mr. 

Peterson went on alone, filing a petition for a belated appeal in September 2006. 

That petition was granted and, when the merits of the appeal ultimately were 

 3 This document is Mr. Peterson’s sworn response in opposition to the Secretary’s request 

for dismissal, which he filed pursuant to an order of the district court.

Case: 09-13596 Date Filed: 11/05/2015 Page: 4 of 6 
5

denied, Mr. Peterson filed a federal habeas petition the very next day. Mr. 

Peterson thus displayed reasonable diligence throughout his mishandled 

postconviction proceedings. 

Based on Mr. Peterson’s allegations, counsel’s conduct amounted to gross 

negligence. And, after August 2006, it may have even amounted to abandonment, 

as Mr. Peterson contends. Unfortunately, Mr. Peterson’s federal habeas statute of 

limitations had long expired by the time counsel arguably abandoned him. The 

only period of time relevant to our equitable tolling analysis is from June 20, 2002 

until June 20, 2003, while the statute of limitations clock was still running and 

there was time left to be tolled. During this period, counsel’s negligence, 

“however gross or egregious, does not qualify as an ‘extraordinary circumstance’ 

for purposes of equitable tolling.” Cadet v. Fla. Dep’t of Corr., 742 F.3d 473, 481 

(11th Cir. 2014). Mr. Peterson has also failed to allege or show “bad faith, 

dishonesty, divided loyalty, [or any] mental impairment” by his counsel which may 

in certain extraordinary circumstances “form the basis of an equitable tolling 

argument.” Thomas v. Att’y Gen. Fla., 795 F.3d 1286, 129394 (11th Cir. 2015) 

(discussing Holland, Maples v. Thomas, 132 S. Ct. 912 (2012), and Cadet). 

Accordingly, we must agree with the district court that Mr. Peterson is not entitled 

to equitable tolling of the statute of limitations on his federal habeas petition.

III.

Case: 09-13596 Date Filed: 11/05/2015 Page: 5 of 6 
6

For the reasons set forth above, we affirm.

AFFIRMED.

Case: 09-13596 Date Filed: 11/05/2015 Page: 6 of 6