FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 NOVEMBER 29, 2011

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 11-10985

Non-Argument Calendar

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D.C. Docket No. 0:10-cv-60772-DLG

JAMES POVEROMO, 

Plaintiff-Appellant,

versus

FLORIDA DEPARTMENT OF CORRECTIONS,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

__________________

(November 29, 2011)

Before TJOFLAT, EDMONDSON and KRAVITCH, Circuit Judges.

PER CURIAM:
The district court denied James Poveromo’s petition, brought under 28

U.S.C. § 2254, for habeas corpus relief from his Florida convictions for

aggravated battery, burglary of a dwelling while armed with a firearm, and

carrying a concealed firearm. We granted a certificate of appealability as to one

issue: whether the district court erred, in light of Holland v. Florida, 560 U.S. ___,

130 S.Ct. 2549, 177 L.Ed.2d 130 (2010), in finding that Poveromo was not

entitled to equitable tolling (to excuse the untimely filing of is petition) because

attorney negligence cannot serve as a basis for equitable tolling.

Under 28 U.S.C. § 2244(d), a petitioner has one year in which to file a §

2254 habeas petition. The year begins to run on the latest of four triggering

events. 28 U.S.C. § 2244(d)(1). The triggering event relevant to this case is “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). After

entry of a final judgment of conviction by a state court, the defendant has 90 days

to petition the U.S. Supreme Court for a writ of certiorari. Sup.Ct.R. 13.1. If no

such petition is filed, the judgment is considered final for purposes of §

2244(d)(1)(A) at the expiration of that 90-day window. Chavers v. Sec’y, Fla.

Dept. of Corr., 468 F.3d 1273, 1274-75 (11 Cir. 2006). The one-year limitation

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period for filing a § 2254 petition is tolled during times in which a properly filed

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 application for state post-conviction relief is pending. 28 U.S.C. § 2244(d)(2). 

However, a state application filed after the § 2244(d) limitations period has

already run does not toll, as there is no limitations period remaining to be tolled. 

Webster v. Moore, 199 F.3d 1256, 1259 (11 Cir. 2000). th

Equitable tolling applies only where the litigant satisfies his burden of

establishing “(1) that he has been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way and prevented timely filing.” Id., 

560 U.S. at ___, 130 St.Ct. at 2562 (quotation omitted); see Arthur v. Allen, 452

F.3d 1234, 1252 (11 Cir. 2006) (holding that a petitioner must show both th

extraordinary circumstances and diligence in order to prevail). The diligence

prong requires “reasonable diligence,” rather than “maximum feasible diligence.” 

Holland at ___, 130 S.Ct. at 2565 (quotations omitted).

Under the former law of this circuit, attorney negligence could never serve

as a basis for equitable tolling. Holland v. Florida, 539 F.3d 1334, 1339 (11 Cir.

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2008). The Supreme Court rejected this view in Holland, calling it “overly rigid”

that an attorney’s gross negligence cannot warrant tolling absent bad faith,

dishonesty, divided loyalty, or mental impairment. Holland, 560 U.S. at ___, 130

S.Ct. at 2563-65. The Court held that while a “garden variety claim of excusable

neglect,” such as an attorney’s “simple miscalculation” that results in a missed

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filing deadline, does not warrant equitable tolling, “serious instances of attorney

misconduct” could. Id. at ___, 130 S.Ct. at 2564 (quotations omitted).

A review of the district court’s decision reveals that it erred in adopting the

magistrate judge’s report and recommendation, which stated that “the Eleventh

Circuit has repeatedly held that attorney negligence is not a basis for equitable

tolling.” Holland expressly rejected that rule, and it was improper for the district

court to rely upon this court’s pre-Holland precedent. The proper analysis is to

determine whether the facts show garden variety attorney negligence or serious

attorney misconduct. Furthermore, the magistrate judge noted that Poveromo had

not alleged that Poveromo’s attorney lied to or misled him, relying again on our

old rules. The magistrate judge also failed to consider Poveromo’s father’s

affidavit, which mentioned repeated requests to the attorney that he file a Fla. R.

Crim. P. § 3.850 motion before the federal limitations period ran, the sort of fact

that the Supreme Court in Holland found relevant to both prongs of the equitable

tolling analysis. Accordingly, we VACATE the dismssal of Poveromo’s petition

and REMAND the case to the district court with the instruction that it conduct the

proper equitable tolling analysis.

SO ORDERED.

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