Federal Criminal Law Opinions

Appeal from the U.S. District Court for the Northern District of Georgia (No. 04-00295-CR-1-JTC).

(Before TJOFLAT, BLACK and WILSON, Circuit Judges.)

(WILSON, Circuit Judge.) Marcus Aurelius Johnson (“Johnson”) appeals the district court’s order of restitution on the sole ground that it was imposed 39 months after his sentence was imposed, well past the 90-day period required by 18 U.S.C. § 3664(d)(5). The government moves to dismiss because Johnson knowingly and voluntarily executed an appeal waiver as part of his plea agreement. For the reasons set forth below, we grant the government’s motion to dismiss.

I. BACKGROUND
On May 21, 2004, Johnson was charged in an information with conspiracy to commit identification document fraud in violation of 18 U.S.C. § 1028(f). Shortly thereafter, on May 26, Johnson entered into a negotiated plea agreement, the terms of which included an appeal waiver:

LIMITED WAIVER OF APPEAL: To the maximum extent permitted by federal law, the defendant voluntarily and expressly waives the right to appeal sentence and the right to collaterally attack sentence in any post-conviction proceeding on any ground, except that the defendant may file a direct appeal of (1) an upward departure from the otherwise applicable sentencing guideline range; and/or (2) the sentencing court’s finding as to the application of § 2b1.1(B)(1) of the Sentencing Guidelines in the event the loss amount is determined to exceed $30,000.

(Plea Agreement, Government’s Motion to Dismiss, Ex. B at 5.)

The plea agreement further provided, above Johnson’s signature:

I have also discussed with my attorney the rights I may have to appeal or challenge my sentence, and I understand that the appeal waiver contained in the Plea Agreement will prevent me, with the narrow exceptions stated, from appealing my sentence or challenging my sentence in any post-conviction proceeding.

(Id. at 6.)

During the plea colloquy, Johnson advised the court that he understood that the plea agreement contained a waiver of his right to appeal except in the limited instances of an upward departure from the sentencing guidelines or in the event the restitution amount exceeded $30,000:

Court: What are the circumstances in which Mr. Johnson would be able to appeal?

Johnson’s Attorney: Yes, your Honor. We will have the ability to appeal any upward departure [or if] the loss amount is determined to exceed $30,000 . . . .

Court: Okay. But do you understand you would not have any right to appeal? —

Johnson: Yes.

Court: — Or to file a later lawsuit challenging your sentence on any other grounds?

Johnson: Yes.

(Tr. Plea Hearing, Government’s Motion to Dismiss, Ex. C at 10-11.)

On September 10, 2004, Johnson was sentenced to twenty-six months in prison, three years of supervised release, a special assessment of one hundred dollars, and an amount of restitution to be determined. Over three years later, on December 20, 2007 the district court amended the judgment and ordered Johnson to pay restitution in the amount of $21,593.70. It is undisputed that neither of the exceptions to the appeal waiver are at issue. The sentence was within the guidelines range and the order of restitution did not exceed $30,000.00.

II. DISCUSSION
We review the validity of a sentence appeal waiver de novo. United States v. Weaver, 275 F.3d 1320, 1333 n.21 (11th Cir. 2001). A sentence appeal waiver must be made knowingly and voluntarily. Id. The waiver is valid if the government shows either that: (1) the district court specifically questioned the defendant about the waiver; or (2) the record makes clear that the defendant otherwise understood the full significance of the waiver. United States v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993).

Johnson argues that, notwithstanding his sentence appeal waiver, he may appeal the amended judgment because the district court issued a restitution order that was untimely pursuant to 18 U.S.C. § 3664(d)(5).1 Johnson cites to United States v. Maung, 267 F.3d 1113 (11th Cir. 2001), wherein we stated that § 3664(d)(5) prohibits a district court from “impos[ing] a sentence and then delay[ing] determination of the amount of losses more than 90 days from sentencing.” Id. at 1121. Johnson argues that this untimeliness rendered the sentence illegal and that even a valid waiver should not preclude us from vacating it. In support, Johnson cites United States v. Andis, 333 F.3d 886 (8th Cir. 2003) (en banc), in which the Eighth Circuit held that imposition of an illegal sentence constituted “a miscarriage of justice” and may be appealed despite the existence of an otherwise valid waiver. Id. at 891-92.

The government argues that Johnson knowingly and voluntarily waived his right to appeal his sentence as evidenced by the clear terms of the plea agreement as well as by the district court’s specific questioning of Johnson at the plea hearing. The government argues that because restitution is part of a criminal defendant’s waiver, see United States v. Satterfield, 743 F.2d 827, 837 (11th Cir. 1984) (“There can be little doubt that Congress intended the restitution penalties of the VWPA [Victim and Witness Protection Act of 1982, 18 U.S.C. § 36632] to be incorporated into the traditional sentencing structure.”), a waiver of the right to appeal a sentence necessarily includes a waiver of the right to appeal the restitution imposed. The government asserts that, although the Eighth Circuit recognized a “miscarriage of justice” exception, the court cautioned that the exception was “a narrow one and w[ould] not be allowed to swallow the general rule that waivers of appellate rights are valid.” Andis, 333 F.3d at 891. The government states that Johnson does not object to the substance of the amended sentence (the amount of restitution did not exceed the $30,000 threshold), but merely that the court acted untimely; thus, the sentence itself did not violate Johnson’s right to due process or result in a miscarriage of justice.

In United States v. Kapelushnik, 306 F.3d 1090 (11th Cir. 2002), we held that where “the district court fails to [issue an order of restitution] within the 90-day limitations period, the judgment of conviction becomes final and contains no enforceable restitution provision.” Id. at 1093-94. In Maung, however, we indicated that in limited circumstances a district judge may impose restitution after the 90-day period, such as “in cases where the defendant’s own bad faith” causes the delay. Maung, 267 F.3d at 1122 (“Allowing the defendant’s own bad faith delay to foreclose the entry of a restitution order could conceivably put restitution in some cases in the defendant’s own discretion.”). Thus, although the question was not before us, we recognized the possibility that the 90-day period could be equitably tolled. Id. Our reasoning in Maung comports with the well established rule that equitable tolling principles “are read into every federal statute of limitation” absent congressional intent to the contrary. Cook v. Deltona Corp., 753 F.2d 1552, 1562 (11th Cir. 1985); see also Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 707 (11th Cir. 1998) (same); Hill v. Texaco, Inc., 825 F.2d 333, 334 (11th Cir. 1987) (same).

Because the statute of limitations may be equitably tolled, it is not jurisdictional. See Dakane v. U.S. Att’y Gen., 399 F.3d 1269, 1272 n.3 (11th Cir. 2005) (per curiam) (explaining that federal statutory limitations period under scrutiny was “ ‘mandatory and jurisdictional’ [and therefore] not subject to equitable tolling”); Coke v. Gen. Adjustment Bureau, Inc., 640 F.2d 584, 588-89 (5th Cir. 1981) (distinguishing between jurisdictional prerequisites and statutes of limitations that can be equitably tolled).3 The crux of Johnson’s appeal, therefore, is whether the factual circumstances of this case permitted the district court to equitably toll the 90-day limitations period. We do not reach that question, however, because we find that Johnson waived his statutory right4 to appeal his sentence.

Johnson does not dispute that his waiver was knowing and voluntary; that he explicitly waived an appeal as to restitution so long as the amount did not exceed $30,000; or that the amount of restitution is, in fact, under $30,000. That Johnson may have a meritorious argument on whether the court erred in effectively equitably tolling the limitations period does not overcome his waiver in this instance. As we have said previously, “[w]aiver would be nearly meaningless if it included only those appeals that border on the frivolous.” United States v. Howle, 166 F.3d 1166, 1169 (11th Cir. 1999). The waiver includes more than just difficult or debatable legal issues; it includes “waiver of the right to appeal blatant error.” Id.; United States v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005) (per curiam).

We recognize, however, that an effective waiver is not an absolute bar to appellate review. In Bushert, we commented that “a defendant who has executed an effective waiver does not subject himself to being sentenced entirely at the whim of the district court.” Bushert, 997 F.2d at 1350 (internal quotation marks omitted). We indicated that “a defendant could not be said to have waived his right to appellate review of a sentence imposed in excess of the maximum penalty provided by statute or based on a constitutionally impermissible factor such as race.” Id. at 1350 n.18 (internal quotation marks omitted). We also stated that “[i]t is both axiomatic and jurisdictional that a court of the United States may not impose a penalty for a crime beyond that which is authorized by statute.” Id. Six years after Bushert, we stated that “[i]n extreme circumstances — for instance, if the district court had sentenced [the defendant] to a public flogging — due process may require that an appeal be heard despite a previous waiver.” Howle, 166 F.3d at 1169 n.5.

Assuming that the district court erred in delaying the issuance of the restitution order, the 36 months that accrued beyond the 90-day threshold does not, by itself, give rise to an “extreme circumstance” requiring it to be heard despite a previous knowing and voluntary waiver. Johnson cannot be said to have been subjected to the unfettered whim of the district court, or punished on the basis of a constitutionally impermissible factor such as race. Furthermore, we do not believe the Bushert court, in referencing “the maximum penalty provided by statute” or the imposition of “a penalty for a crime beyond that which is authorized by statute,” had in mind an untimely restitution order; rather, we read that commentary as aiming at the imposition of a sentence exceeding the statutory range authorized for the offense of conviction. The restitution statute at issue here, 18 U.S.C. § 3663, has no prescribed statutory maximum. See Dohrmann v. United States, 442 F.3d 1279, 1281 (11th Cir. 2006). Johnson can hardly be viewed as receiving punishment in excess of a statutory maximum — or, indeed, even in excess of his own expectations — given that he agreed not to appeal an order of restitution that did not exceed $30,000. “A plea agreement is, in essence, a contract between the Government and a criminal defendant.” Howle, 166 F.3d at 1168. To allow an appeal in this instance would effectively write into the contract an exception that the parties did not agree to. This we cannot do. The Sixth Circuit has recently come to the same conclusion. See United States v. Gibney, 519 F.3d 301, 305-06 (6th Cir. 2008) (dismissing appeal due to waiver despite defendant’s argument that district court’s restitution order exceeded the ninety-day time frame in 18 U.S.C. § 3664(d)(5)).5

Before concluding, we recognize that there is a need for finality in imposing restitution and that a thirty-six month delay is not a trivial amount of time. Our decision today does not provide district courts with free reign to disregard the 90-day period where a defendant has executed an appeal waiver. Under different circumstances, we can foresee how a delay may require our review despite a valid waiver. Here, however, where Johnson voluntarily and knowingly waived an appeal of restitution that did not exceed an amount of $30,000, where the court imposed an amount less than $30,000, and where the length of delay beyond the period of limitations is 36 months, Johnson’s waiver precludes our review. Accordingly, we grant the government’s motion to dismiss.

SO ORDERED.

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1Section 3664(d)(5) provides:

If the victim’s losses are not ascertainable by the date that is 10 days prior to sentencing, the attorney for the Government or the probation officer shall so inform the court, and the court shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing. If the victim subsequently discovers further losses, the victim shall have 60 days after discovery of those losses in which to petition the court for an amended restitution order. Such order may be granted only upon a showing of good cause for the failure to include such losses in the initial claim for restitutionary relief.

18 U.S.C. § 3664(d)(5).

2At the time of our opinion in Satterfield, the VWPA was codified at 18 U.S.C. §§ 3579 and 3580; however, Congress recodified the VWPA as §§ 3663 and 3664 through the Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987. See United States v. Dickerson, 370 F.3d 1330, 1337 n.13 (11th Cir. 2004).

3This court adopted as binding precedent the decisions of the former Fifth Circuit prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc).

4“The right to appeal is purely statutory.” Bushert, 997 F.2d at 1347.

5To the extent that the Eighth Circuit’s application of the “miscarriage of justice” exception, recognized in Andis, 333 F.3d at 891-92, would result in a different outcome, we respectfully disagree. We are not sure, however, that the Eighth Circuit would apply the “miscarriage of justice” exception in this case. The Eighth Circuit has previously held that a defendant’s appeal waiver was not overcome by defendant’s arguments attacking restitution on grounds of due process, insufficient evidence showing loss, and the victim’s failure to seek restitution. United States v. Greger, 98 F.3d 1080, 1081-82 (8th Cir. 1996). We further note that the Eighth Circuit has recently clarified the language in Andis referring to “a defendant ha[ving] the right to appeal an illegal sentence, even though there exists an otherwise valid waiver.” Andis, 333 F.3d at 891-92. In United States v. Schulte, 436 F.3d 849 (8th Cir. 2006), the court cautioned that “not every action that is contrary to law or in excess of the district court’s statutory authority constitutes an ‘illegal sentence’ that avoids an appeal waiver.” Id. at 850. Indeed, the court stated that “[t]he concept of an ‘illegal sentence’ may not apply neatly to restitution orders, as they are not in the nature of a criminal penalty.” Id. at 851 (internal quotation marks omitted). The court explained that the focus of Andis was on “a statutory range” and that restitution orders “are not subject to any prescribed statutory maximum.” Id. (internal quotation marks omitted).

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Appeal from the U.S. District Court for the Southern District of Florida (No. 06-20182 CV-PAS).

(Before EDMONDSON, Chief Judge, MARCUS and PRYOR, Circuit Judges.)

(PER CURIAM.) Albert Holland (Petitioner), a prisoner on Florida’s death row, filed a petition for a writ of habeas corpus in federal district court pursuant to 28 U.S.C. § 2254. The district court dismissed the petition as untimely because it was filed beyond the one-year limitations period provided by 28 U.S.C. § 2244(d)(1). On appeal, Petitioner argues that he was entitled to equitable tolling of the limitations period for filing his federal habeas petition because of egregious conduct by his counsel during his post-conviction proceedings. Seeing no reversible error, we affirm the district court’s dismissal of Petitioner’s petition.

I. Background
In 1996, Petitioner was convicted of first-degree murder, attempted first-degree murder, attempted sexual battery, and armed robbery.1 [Blue Brief at 2] The state trial court sentenced Petitioner to death on the first-degree murder conviction. [Blue Brief at 2] In 2000, the Florida Supreme Court affirmed Petitioner’s convictions and sentences, see Holland v. State, 773 So. 2d 1065 (Fla. 2000), and the United States Supreme Court denied certiorari on 1 October 2001. See Holland v. Florida, 122 S. Ct. 83 (2001).2

On 19 September 2002, Petitioner filed a motion for post-conviction relief in the state trial court. [Red Brief at 5] The state court denied relief, and Petitioner appealed to the Florida Supreme Court. [Red Brief at 5] Petitioner also petitioned the Florida Supreme Court for a writ of habeas corpus.3 [Red Brief at 5] The state supreme court held oral argument on 10 February 2005. [Vol. 1, Doc. 38, App. I]

While his post-conviction proceedings were pending in the Florida Supreme Court, Petitioner sent two letters to Collins — one on 3 March 2005, the other on 15 June 2005 — in which he inquired about the status of his appeal and expressed concern about the timely filing of his federal habeas petition. [Vol. 1, Doc. 38, App. K, L] Collins did not respond to Petitioner’s letters.

In October 2005, Petitioner also contacted the Florida Supreme Court about the use of its website “so that he could secure the assistance of outside supporters to keep him updated about the appeal.”4 In response, the clerk of the Florida Supreme Court mailed Petitioner printouts of the website with instructions about the menu options to be used. [Vol. 1, Doc. 38, App. N]

On 10 November 2005, the Florida Supreme Court affirmed the denial of Petitioner’s motion for post-conviction relief and denied his habeas petition; the mandate issued on 1 December 2005.5 See Holland v. State, 916 So. 2d 750 (Fla. 2005) [30 Fla. L. Weekly S793a]. [Red Brief at 6] Unaware of the state supreme court’s decision, Petitioner — on 9 January 2006 — wrote to Collins a third time regarding the status of his appeal and the status of his federal habeas petition. Collins had not responded to Petitioner’s letter by 19 January, at which time Collins spoke to Petitioner.

On 18 January 2006, during a visit to the prison’s writ room, Petitioner learned that the Florida Supreme Court denied his appeal. [Blue Brief at 24] Petitioner telephoned Collins the next morning.6 Later that day, Petitioner, acting pro se, filed a habeas petition in federal district court. [Vol. 1, Doc. 1]

About two months later, Petitioner moved the district court to discharge Collins and to appoint new counsel. [Vol. 1, Doc. 6] In June 2006, the district court allowed Collins to withdraw and appointed other counsel to represent Petitioner. Later, in response to a federal order to show cause, Petitioner, through current counsel (that is, not Collins), filed a pleading asserting that Petitioner was entitled to equitable tolling of the limitations period for filing his federal habeas petition. [Vol. 1, Doc. 35] The district court concluded that equitable tolling was not warranted and dismissed Petitioner’s petition as untimely. [Vol. 2, Doc. 46] The district court then granted a certificate of appealability on the following issue: “whether equitable tolling enlarged the one-year time period for [Petitioner] to file his 28 U.S.C. § 2254 petition.” [Vol. 2, Doc. 60]

II. Standard of Review
We review the district court’s denial of equitable tolling de novo. Drew v. Dep’t of Corr., 297 F.3d 1278, 1283 (11th Cir. 2002). We review a trial court’s decision whether to conduct an evidentiary hearing on an equitable tolling claim for an abuse of discretion. Id.

III. Discussion
Pertinent to this case, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996), imposes a one-year statute of limitations for filing a federal habeas petition that runs from the date on which the state court judgment of conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). A judgment of conviction becomes final when “the Supreme Court has had an opportunity to review the case or the time for seeking review has expired.” Coates v. Byrd, 211 F.3d 1225, 1226 (11th Cir. 2000). Under 28 U.S.C. § 2244(d)(2), the limitations period is tolled for the time during which “a properly filed application for state post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.”

That Petitioner filed his federal habeas petition beyond the one-year limitations period provided by 28 U.S.C. § 2244(d)(1) is undisputed. Petitioner’s limitations period began running on 1 October 2001, the date on which the United States Supreme Court denied certiorari on the direct appeal of Petitioner’s convictions and sentences. Petitioner filed his motion for state post-conviction relief — a motion which tolled the limitations period — on 19 September 2002: 353 days later; thus, eleven months and nineteen days of the one-year period had expired before this state court filing.

Petitioner’s post-conviction motion was denied, and the Florida Supreme Court affirmed the denial on 10 November 2005; the mandate issued on 1 December 2005. So, Petitioner then had eleven days, or until 12 December 2005, to file timely his federal habeas petition. Petitioner filed his petition on 19 January 2006: 38 days late.

Nonetheless, Petitioner’s federal habeas petition may still be considered timely if he is entitled to equitable tolling. “Equitable tolling can be applied to prevent the application of AEDPA’s statutory deadline when ‘extraordinary circumstances’ have worked to prevent an otherwise diligent petitioner from timely filing his petition.” Helton v. Sec’y for Dep’t of Corr., 259 F.3d 1310, 1312 (11th Cir. 2001). Equitable tolling is an extraordinary remedy that must be applied sparingly. Drew, 297 F.3d at 1286. “The burden of establishing entitlement to this extraordinary remedy plainly rests with the petitioner.” Id. “To be entitled to equitable tolling, [Petitioner] must show (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Lawrence v. Florida, 127 S. Ct. 1079, 1085 (2007). A truly extreme case is required.

Petitioner points to several things that he contends demonstrate extraordinary circumstances: (1) Collins’s alleged “egregious conduct”; (2) the Florida Supreme Court’s failure to conduct oversight of his appointed attorney; (3) the state clerk’s office’s failure to inform him that his appeal had been denied; and (4) the Department of Corrections’s refusal to allow Petitioner access to the “writs room.”7 Petitioner argues that these circumstances are extraordinary and both beyond his control and unavoidable despite his diligent efforts. We disagree.

On Collins’s alleged “egregious conduct,” this Court has said repeatedly that even attorney negligence is not a basis for equitable tolling. Helton, 259 F.3d at 1313; Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000); Sandvik v. United States, 177 F.3d 1269, 1271-72 (11th Cir. 1999); see also Lawrence, 127 S. Ct. at 1085 (“Attorney miscalculation is simply not sufficient to warrant equitable tolling, particularly in the postconviction context where prisoners have no constitutional right to counsel.”). But recently we addressed whether attorney misconduct going beyond “mere negligence” may constitute an extraordinary circumstance warranting equitable tolling. See Downs v. McNeil, 520 F.3d 1311 (11th Cir. 2008).

In Downs, 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.” Id. at 1323. Although we viewed counsel’s behavior as a whole, it is 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 filing would have tolled the federal habeas limitations period.8 Id. at 1323-24. In Downs, we repeatedly and specifically noted counsel’s lie: one that deprived the unknowing petitioner of as many as three months of his limitations period before it was discovered.9 Id.

In contrast to Downs, Petitioner made in the district court no allegation of knowing or reckless factual misrepresentation or of lawyer dishonesty. Instead, Petitioner’s allegations are limited to Collins’s failure to communicate with Petitioner on the status of his case and to Collins’s failure to file a federal habeas petition timely, despite repeated instructions to do so. We will assume that Collins’s alleged conduct is negligent, even grossly negligent. But in our view, no allegation of lawyer negligence or of failure to meet a lawyer’s standard of care — in the absence of an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer’s part — can rise to the level of egregious attorney misconduct that would entitle Petitioner to equitable tolling. Pure professional negligence is not enough. This case is a pure — professional — negligence case. We decline to extend Downs to the different facts of this case.10

In a similar way, we are not persuaded that the alleged acts of the Florida Supreme Court or the Department of Corrections would entitle Petitioner to equitable tolling. The alleged failure by the Florida Supreme Court to conduct oversight of Petitioner’s appointed attorney is not an “extraordinary circumstance” entitling Petitioner to equitable tolling. See Lawrence, 127 S. Ct. at 1085-86 (that a state court appoints and supervises counsel “does not make the State accountable for a prisoner’s delay”). And Petitioner presents no evidence that he ever asked — before the limitations period for filing his federal habeas petition had run — that the Florida Supreme Court provide him directly with notice of the decision on his post-conviction appeal. The letter that Petitioner presents to support his contention that the Florida Supreme Court should have provided him with notice was dated 21 December 2005: nine days after Petitioner’s deadline for filing his federal habeas petition had passed. Likewise, the incident in which the Department of Corrections allegedly denied Petitioner access to the “writs room” took place on 9 January 2006: 28 days beyond the limitations period. Even assuming the allegations are true, Petitioner cannot reasonably argue that the incidents to which he draws our attention — both occurring after the limitations period had run — prevented him from filing a federal habeas petition timely.

We are satisfied that the district court did not err in declining to hold an evidentiary hearing on the issue of equitable tolling. “Section 2244 of Title 28 of the United States Code does not require a hearing on the issue of time-bar or equitable tolling, so the decision as to whether to conduct an evidentiary inquiry is a matter left to the sound discretion of the district court.” Drew, 297 F.3d at 1292. Petitioner has offered no reason to believe an evidentiary hearing would help him demonstrate the required extraordinary circumstances to warrant equitable tolling.

IV. Conclusion
For the foregoing reasons, the district court’s dismissal of Petitioner’s petition for a writ of habeas corpus as untimely is affirmed.

AFFIRMED.

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1This conviction followed Petitioner’s second trial on the charged conduct. The Florida Supreme Court overturned Petitioner’s prior conviction and sentence on grounds unrelated to this appeal.

2In November 2001, the state circuit court appointed attorney Bradley Collins to represent Petitioner. [Blue Brief at 3]

3Unsatisfied with Collins’s representation, Petitioner filed a pro se motion to remove Collins as counsel and to appoint other counsel in February 2004 and again in June 2004. [Vol. 1, Doc. 38, App. I, J]. The state opposed these motions, and the state court denied them.

4As an inmate on death row, Petitioner lacked access to a computer.

5On 8 February 2006, Petitioner, through Collins, sought review of the denial of state post-conviction relief in the United States Supreme Court. The Court denied certiorari on 17 April 2006.

6Collins had written a letter to Petitioner — received by Petitioner on 19 January 2006 — expressing Collins’s intention to file a petition for certiorari in the United States Supreme Court.

7Petitioner also notes his “long history of mental illness” as a factor in evaluating his claim for equitable tolling. Petitioner does not explain how his “mental illness” had a material effect on his failure to file timely his habeas petition.

8In two recent unpublished decisions, we reached similar conclusions. See Kicklighter v. United States, No. 07-14945, 2008 WL 2421728 (11th Cir. June 17, 2008) (unpublished); Hammond v. Frazier, No. 07-10573, 2008 WL 1891478 (11th Cir. Apr 30, 2008) (unpublished). Both cases involved allegations of affirmative misrepresentations by counsel. Kicklighter, 2008 WL 2421728, at *1 (petitioner alleged that counsel “lied to him about whether the appeal had been filed”); Hammond v. Frazier, 2008 WL 1891478, at *1 (petitioner alleged that “post-conviction counsel falsely told him that counsel had filed the state habeas petition”).

9The defendant in Downs missed the deadline for filing his habeas petition by only eight days.

10We recall the maxim that “[e]very exception not watched, tends to take the place of the rule.” See S. Peloubet, Legal Maxims 294 (1884) (1985 ed.) (“Toute exception non surveillee tend a prendre la place du principe.”). We are attempting to keep the exception for extraordinary circumstances from being the rule.

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