Cadet v. Florida Department of Corrections, No. 12-14518 (11th Cir. 2017)
Annotate this CasePetitioner filed a petition for rehearing en banc, which also served under the court's rules as a petition for rehearing before the panel. The court granted the petition for rehearing to the panel to the extent that the court vacated its previous opinion and substituted in its place this one. Petitioner, convicted of battery and sexual battery of a five-year-old in Florida, appealed the dismissal of his habeas petition. The court granted him a certificate of appealability on the the issue of whether the district court improperly determined that his 28 U.S.C. 2254 petition was time-barred, based on its finding that he was not entitled to equitable tolling. The court held that an attorney's negligence, even gross negligence, or misunderstanding about the law is not by itself a serious instance of attorney misconduct for equitable tolling purposes, even though it does violate the ABA model rules as all, or virtually all, attorney negligence does. Because petitioner showed, at most, that his failure to meet the filing deadline was the product of his attorney’s good faith but negligent or grossly negligent misunderstanding of the law, the district court properly dismissed the habeas petition as untimely.
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