Kenneth Scott v. Warden Terry Duffy

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 5, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-13219
Non-Argument Calendar
________________________
D. C. Docket No. 09-00021-CV-HLM-4
KENNETH SCOTT,
Petitioner-Appellant,
versus
WARDEN TERRY DUFFY,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 5, 2010)
Before BLACK, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:

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Kenneth Scott, a Georgia state prisoner proceeding pro se, appeals the
dismissal of his 28 U.S.C. § 2254 petition as time-barred. In his § 2254 petition,
Scott challenged the revocation of his state probation, which became final in April
2006 when his counsel, against Scott’s directive, did not file an appeal on his
behalf. The district court dismissed the § 2254 petition as untimely because it was
filed in January 2009, well over the one-year limitations period for federal habeas
corpus petitions under the AEDPA. We granted Scott a Certificate of Appealibility
on whether the district court erred by finding his writ untimely.
On appeal, Scott argues that his lawyer’s failure to appeal his state probation
revocation was a State impediment pursuant to 28 U.S.C. § 2244(d)(1)(B) that
should have delayed the start of the limitations period. Scott also argues that this
same failure entitles him to equitable tolling of the limitations period and
constitutes cause and prejudice sufficient to overcome AEDPA’s procedural bar.
Scott’s second argument on appeal is that our Circuit should recognize an “actual
innocence” exception to AEDPA’s statute of limitations period and that because
there was no evidence that the victim of his aggravated assault experienced
apprehension or fear, he is actually innocent of the offense which triggered the
revocation of his probation. Therefore, Scott claims that his § 2254 petition should
be considered timely.
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“We review de novo a district court’s dismissal of a federal habeas petition,
including the determination that a petition is time-barred under § 2244(d).”
Melson v. Allen, 548 F.3d 993, 996–97 (11th Cir. 2008), cert. denied, 130 S. Ct.
254 (2009). By statute, there is a one-year period of limitation for a person in state
custody to file a federal petition seeking a writ of habeas corpus. 28 U.S.C.
§ 2244(d)(1). The period runs from the latest of several potential start dates,
including when the state court judgment became final after the expiration of the
time for seeking direct review. Id. at § 2244(d)(1)(A). Under Georgia law, a
defendant has 30 days to file an appeal challenging the revocation of probation.
O.C.G.A § 5-6-35(a)(5), (d). No appeal was filed in Scott’s case. Therefore, the
judgment of the superior court became “final” on April 13, 2006, and Scott had one
year within which to file his federal habeas corpus petition or toll the limitations
period by filing a state collateral attack. He did not file his federal petition or a
state habeas petition prior to the expiration of the one-year period of limitation.
Scott’s first argument—that his attorney’s failure to appeal his probation
revocation is a State impediment cognizable under § 2244(d)(1)(B)—is without
merit. The AEDPA’s one-year limitation period may be tolled by the existence of
an impediment that was created by State action in violation of the Constitution or
laws of the United States if “the applicant was prevented from filing by such State
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action.” 28 U.S.C. § 2244(d)(1)(B). However, we have held that the incompetence
of a habeas petitioner’s attorney is not the type of State impediment envisioned in
§ 2244(d)(1)(B). Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir. 2005)
(rejecting petitioner’s argument that the State impeded his timely filing of his §
2254 petition by providing him an incompetent attorney through the Florida
counsel registry system).
Nor can Scott show that there are extraordinary circumstances present in his
case to warrant the application of equitable tolling. “Equitable tolling is an
extraordinary remedy which is typically applied sparingly.” Steed v. Head, 219
F.3d 1298, 1300 (11th Cir. 2000). It is only available “when a 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). “Mere attorney negligence does not justify equitable tolling.”
Steed, 219 F.3d at 1300. For a petitioner to be entitled to equitable tolling, there
must be “egregious attorney misconduct,” such as “proof of bad faith, dishonesty,
divided loyalty, mental impairment or so forth on the lawyer’s part.” Melson v.
Allen, 548 F.3d 993, 1001 (11th Cir. 2008) (quotation omitted). Scott’s allegations
that his attorney failed to file an appeal of his probation revocation, and to inform
him of this fact, does not constitute egregious attorney misconduct warranting
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equitable tolling. Far from constituting bad faith or dishonesty, Scott’s decision
not to appeal the probation revocation was a purely tactical one, especially in light
of Scott’s admission of guilt as to the probation revocation offense.1
Finally, Scott’s actual innocence argument fails as well. “Neither the
Supreme Court nor this Court has ever held that the Constitution requires an actual
innocence exception to the AEDPA’s one-year limitations period.” Melson, 548
F.3d at 1002. However, assuming that such an exception exists, a “petitioner must
first make a sufficient showing of actual innocence.” Id. “This requires the
petitioner to produce new reliable evidence—whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts, or critical physical evidence—that was
not presented at trial.” Id. (quotation omitted). Scott has made no such showing as
to the aggravated assault underlying his probation revocation. Instead of offering
new evidence, he cited to the victim’s and a law enforcement officer’s testimony
from his revocation hearing. Moreover, at the hearing, Scott admitted to
We decline to address Scott’s argument that his attorney’s failure to file an appeal1
constituted cause and prejudice sufficient to overcome the AEDPA’s one-year statute of
limitations because this argument is misplaced. Scott’s 28 U.S.C. § 2254 petition was not
dismissed due to procedural default so a showing of cause and prejudice is not relevant or
necessary. Procedural default occurs when a state prisoner seeking federal habeas relief is
barred from raising a federal constitutional claim in federal court because he failed to first
properly raise the issue in state court. Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir.
2003). Scott’s petition was dismissed due to untimely filing; no court ever reviewed the merits
of his petition or determined that he attempted to raise a procedurally defaulted constitutional
claim. Therefore, he need not show “cause” for the default and actual “prejudice” resulting from
the default. See id.
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committing the aggravated assault offense and violating his probation.
In sum, the district court did not err by dismissing Scott’s § 2254 petition as
time-barred because the alleged incompetence of his state-appointed lawyer did not
qualify as a “State impediment” that delayed the start of the limitations period or
justify equitable tolling. Assuming that there is an actual innocence exception to
the time period for seeking habeas relief, Scott also failed to present new evidence
showing his actual innocence.
AFFIRMED.
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