Full opinion text
ORDER OF DISMISSAL WITH PREJUDICE CORRIGAN, District Judge. Preface Before the Court are three capital cases which all present the same troubling question: when counsel appointed by this very Court to represent capital habeas petitioners fail to file the habeas petitions on time, does the petitioner have any remedy? Based on my reading of current Eleventh Circuit precedent, the answer is no. In this opinion I so rule. However, because of the importance of this issue, not only to the affected petitioners, but to this Court as well, I think it appropriate to share some thoughts. First, I have no idea whether any of these petitioners have meritorious federal habeas claims. Because the petitioners are not asserting actual innocence and because I have found the claims time-barred, I have not looked at the merits. Certainly, the state courts in each case have concluded, after painstaking review, that the death sentences are proper. But, the law provides for federal habeas review in capital cases and this Court is therefore obliged to provide due and proper process to these petitioners. Second, at least in this part of Florida, there appears to be a tremendous shortage of attorneys who will admit to being experts in federal habeas procedures and who will agree to be appointed to these cases. Most often, whomever represented petitioners in the state collateral proceedings will agree, sometimes reluctantly, to handle the federal work even if not well-versed in the federal habeas statute and limitations period. Third, the one-year federal limitations period is, as in these cases, often fairly close to running immediately upon the completion of state post conviction proceedings, putting pressure on post conviction counsel to file a timely federal petition. Fourth, in these cases, the Court agreed to appoint these counsel, at their request, upon what the Court at the time thought was a sufficient showing of expertise to be able to properly prosecute the cases. Obviously, if the Court had known then that these counsel would (or in one case already had) miss the federal limitations deadline, it would not have appointed them (assuming the Court had any other option available). Fifth, counsel in these cases really have no good reason or explanation for their failure to file on time. I suppose both counsel should be commended on the one hand for stepping into the breach of capital litigation, where relatively few lawyers will tread. But having said that, it is hard for me to fathom how a lawyer who asked for and received the appointment of this Court, could abdicate the most basic function of filing the petition on time, even if it is “bare-bones.” Sixth, while acknowledging that Eleventh Circuit precedent places responsibility for timeliness on the petitioner himself, there are real practical concerns. If capital petitioners were able to navigate the shoals of federal habeas litigation without assistance, there would be no need to appoint counsel in the first place. Yet, federal law provides for appointment and payment of counsel in federal habeas capital cases, thereby acknowledging the necessity of such counsel. See 18 U.S.C. § 3599(a)(2). Moreover, once counsel is appointed, a petitioner should be able to rely on that counsel to, if nothing else, file his petition on time. Finally, this Court’s procedures mandate that once counsel is appointed, the petitioner may only file pleadings through counsel. Indeed, the Court routinely strikes and returns pro se filings of parties who are represented by counsel. So, even a savvy petitioner, who may see the clock running out on his habe-as time, can only cajole (and in one case plead with) his counsel to file the petition timely. I recognize the sound legal and policy reasons which underpin the Eleventh Circuit’s decisions on this issue and, even if I did not, I am no less bound by them. Nevertheless, I would be remiss if I did not share my deep concern that in these cases our federal system of justice fell short in the very situation where the stakes could not be higher. I. Status These capital cases are before the Court on Petitioners’ Request for Consolidated Oral Argument and Motion to Consolidate Records. This Court finds that the Request for Consolidated Oral Argument should be denied since an oral argument was previously conducted addressing the one-year limitation period and equitable tolling issues. Further, this Court will construe the Motion to Consolidate Records as a Motion to Consolidate Cases, which will be granted pursuant to Fed. R.Civ.P. 42(a), with respect to Case Nos. 3:03-cv-237-J-32 and 3:03-cv-397-J-32, for the limited purpose of addressing the one-year limitation issue. Thus, although there are different parties and different facts involved in these actions, these cases have common questions of law with respect to the one-year limitation issue. Further, Rule 42(a) “should be used to ... eliminate unnecessary repetition and confusion.” Miller v. U.S. Postal Service, 729 F.2d 1033, 1036 (5th Cir.1984) (citation omitted). The timeliness of each petition, however, will be evaluated independently. II. History These cases contain common issues of whether the petitions were timely filed in this Court and, if not, whether equitable tolling applies to render them timely. An oral argument was conducted on January 18, 2006, addressing the one-year limitation period and equitable tolling issues. Thereafter, on February 27, 2006, the Court appointed John S. Mills, Esquire, as Petitioner’s co-counsel in both cases for the limited purpose of addressing the timeliness and equitable tolling issues because some of the grounds upon which equitable tolling arguments might be based implicated Petitioner’s previously appointed counsels’ own conduct. Mr. Mills was ordered to file supplemental responses to Respondents’ assertion of untimeliness, addressing timeliness under 28 U.S.C. § 2244(d) and equitable tolling, including attorney conduct. Further, Respondents were ordered to respond to the supplemental responses. III. The Law There is a one-year statute of limitation on federal habeas actions as follows: (d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of— (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) 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 shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244(d). The Eleventh Circuit recently set forth the governing law on equitable tolling of this limitation period. “It is by now clear in this Circuit that ‘[ejquitable tolling can be applied to prevent the application of the AEDPA’s statutory deadline when “extraordinary circumstances” have worked to prevent an otherwise diligent petitioner from timely filing his petition.’ ” Drew, 297 F.3d at 1286 (quoting Helton v. Sec’y for the Dep’t of Corr., 259 F.3d 1310, 1312 (11th Cir.2001)). “Equitable tolling is an extraordinary remedy which is typically applied sparingly.” Steed v. Head, 219 F.3d 1298, 1300 (11th Cir.2000). “In order to be entitled to the benefit of equitable tolling, a petitioner must act with diligence, and the untimeliness of the filing must be the result of circumstances beyond his control.” Drew, 297 F.3d at 1286-87. The petitioner is charged with the burden of establishing that equitable tolling should apply. Id. at 1286; Helton, 259 F.3d at 1313-14. Not belying its status as an extraordinary remedy, “this Court has rejected most claims for equitable tolling.” Diaz v. Sec’y for the Dep’t of Corr., 362 F.3d 698, 701 (11th Cir.2004). For example, we have held that “[a]n attorney’s miscalculation of the limitations period or mistake is not a basis for equitable tolling,” Steed, 219 F.3d at 1300; see also Helton, 259 F.3d at 1313 (holding that an attorney’s miscalculation or misinterpretation does not constitute extraordinary circumstances), and that an attorney’s negligence was not a ground for equitable tolling where the petitioner’s habeas petition was filed outside of the AEDPA statute of limitations because his attorney used ordinary mail service. Sandvik v. United States, 177 F.3d 1269, 1271-72 (11th Cir.1999). These circumstances were not “extraordinary” because the ultimate failure to file within the statutory period was a direct result of decisions made and actions taken by the petitioner or his attorney. Having created the situations that caused their petitions to be time-barred, those litigants could not then avail themselves of the equitable power of the district court. See id. Thompson v. Smith, 173 Fed.Appx. 729, 732-33 (11th Cir.2006) (not published in the Federal Reporter). This Court notes that the Third Circuit has placed a lesser burden on capital defendants to establish that equitable tolling is warranted. See Fahy v. Horn, 240 F.3d 239, 244-45 (3d Cir.) (finding that, in a capital case, a court must allow less than “extraordinary” circumstances to trigger equitable tolling of the one-year statute of limitations under AEDPA when a petitioner has been diligent in asserting his or her claims and rigid application of the statute would be unfair), cert. denied, 534 U.S. 944, 122 S.Ct. 323, 151 L.Ed.2d 241 (2001). However, the Eleventh Circuit has consistently been more in the line of the reasoning of the Seventh Circuit in Johnson v. McBride, 381 F.3d 587, 590-91 (7th Cir.2004), cert. denied, 544 U.S. 926, 125 S.Ct. 1649, 161 L.Ed.2d 487 (2005), in which the court addressed this issue as follows: Johnson contends that prisoners under sentence of death should receive different treatment. Yet neither the text of § 2244(d) nor the principle that lawyers are agents for their clients draws any distinction between capital punishment and other sanctions. The Supreme Court held in Coleman and Giarratano that all prisoners, including those sentenced to death, are responsible for their own legal affairs on collateral attack and cannot demand a lawyer at public expense or obtain relief from the shortcomings of their counsel. In Coleman a prisoner’s post-conviction counsel filed his notice of appeal in state court three days late; this default meant that Coleman failed to exhaust available state remedies and thus wiped out the prospects of collateral review in federal court. The Supreme Court recognized that counsel was to blame but enforced the default nonetheless, holding that there would be no special dispensations in capital proceedings. To the extent Fahy v. Horn, 240 F.3d 239, 244-45 (3d Cir.2001), suggests that attorneys’ errors in handling collateral attacks against death sentences justify equitable tolling even though the identical conduct in other cases would not, it is hard to reconcile with Coleman, which the third circuit did not mention. We agree with Rouse v. Lee, 339 F.3d 238, 251 (4th Cir.2003) (en banc) — another capital case in which counsel foolishly waited until the end to mail a petition and believed that Rule 6(e) added three days to the statutory filing deadline— that “[allowing consideration of the merits of time-barred claims to creep into the equitable tolling analysis lets petitioners effectively circumvent the statute of limitations because the merits of their claims will always be considered. This would enable petitioners who were in no way prevented from complying with the statute of limitations to create delay and undermine finality — two of the reasons that precipitated enactment of the AEDPA statute of limitations. [It is thus best never] to apply equitable tolling based on a factor that had nothing to do with [a] failure to file on time.” It is unnecessary to add to the discussion of this subject in Rouse, 339 F.3d at 251-56. Johnson enjoyed thorough consideration by the Supreme Court of Indiana on both direct appeal and collateral attack. To obtain another round of review in federal court, Johnson had to meet the statutory criteria. He did not do so, and we are not authorized to excuse his non-compliance. As an additional matter, Petitioner Thomas states that “[t]he question presented by this petition is whether Congress in the Antiterrorism and Effective Death Penalty Act has enacted jurisdictional time limits that are either facially invalid, or invalid in their application in this case, unconstitutional suspensions of the writ of habeas corpus.” Reply to Respondents’ Limited Response (Doc. # 23) (hereinafter Reply) at 10-11. The Court looks to the Suspension Clause: The Suspension Clause provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U.S. Const, art. I, § 9, cl. 2. Despite this restriction, the Supreme Court has held that “judgments about the proper scope of the writ are ‘normally for Congress to make.’ ” Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (quoting Lonchar v. Thomas, 517 U.S. 314, 323, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996)). In Swain v. Pressley, 430 U.S. 372, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977), the Supreme Court held that “the substitution of a collateral remedy which is neither inadequate nor ineffective to test the legality of a person’s detention does not constitute a suspension of the writ of habeas corpus.” Id. at 381, 430 U.S. 372, 97 S.Ct. 1224, 51 L.Ed.2d 411. Tinker v. Moore, 255 F.3d 1331, 1334 n. 2 (11th Cir.2001), cert. denied, 534 U.S. 1144, 122 S.Ct. 1101, 151 L.Ed.2d 997 (2002). “AEDPA limitations periods do not per se constitute a suspension of the writ. See Tinker v. Moore, 255 F.3d 1331, 1334 (11th Cir.2001); Wyzykowski v. Dept. of Corr., 226 F.3d 1213 (11th Cir.2000).” Johnson v. United States, 340 F.3d 1219, 1228 n. 8 (11th Cir.2003), aff'd, 544 U.S. 295, 125 S.Ct. 1571, 161 L.Ed.2d 542 (2005). “Moreover, the availability of equitable tolling in cases ‘when a movant untimely files because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence,’ Steed, 219 F.3d at 1300 (quotation and citation omitted), ensures that § 2244’s limitation is constitutionally applied .... ” Tinker, 255 F.3d at 1334. IV. William Greg Thomas Procedural Background On March 24, 2003, Petitioner Thomas filed a Motion for Appointment of Counsel Pursuant to 18 U.S.C. § 3001 et seq. and 21 U.S.C. § 848 et seq. for Representation in To-Be-Filed Federal Habeas Corpus Proceedings in a Capital Case (Doc. # 1). The motion states that counsel was contacted by Petitioner’s state post-conviction counsel in February, 2003, she returned his call on March 3, 2003, and due to the interaction of the time frames of the state and federal litigation, the matter was of an urgent nature. Thus, the Court immediately conducted a hearing on March 26, 2003, and Mary Catherine Bonner, Esquire, appeared telephonieally and requested immediate pre-petition appointment so that she could timely prepare and file a habeas petition. Ms. Bonner stated her qualifications were that she was in good standing with the Court since 1979, she practiced before both the Eleventh Circuit and the United States Supreme Court, she litigated both 28 U.S.C. § 2254 and § 2255 actions, and she had represented three people on death row in state capital cases. The Court, comforted that Ms. Bonner was experienced capital counsel, stated it would enter an order appointing her. Clerk’s Minutes (Doc. # 2), filed March 26, 2003. The order appointing counsel was filed April 2, 2003. Based on Ms. Bonner’s statements of the urgent timing, the Court expected a petition to be filed almost immediately. However, nothing happened. Finally, on June 4, 2003, the Court entered an order requiring Petitioner to advise the Court, no later than June 17, 2003, of the status of the case. Order (Doc. # 5). Unknown to the Court at that time, Ms. Bonner had already let the one-year limitation period run. Ms. Bonner also failed to respond to the Court’s status order. On February 19, 2004, the Court ordered Petitioner to advise the Court, no later than March 15, 2004, of the status of the case or face dismissal for failure to prosecute. Order (Doc. # 7). On March 15, 2004, Petitioner filed a status report and asked leave to file her habeas petition no later than March 19, 2004. (Doc. # 8). The Court entered an Order (Doc. # 9), filed on March 18, 2004, stating that leave is not required to file a petition, and that any determination as to the timeliness of the petition would be made after the filing of the petition and the response. At long last, the Petition (Doc. # 12) was filed on March 22, 2004. The Memorandum (Doc. # 13) was filed two days later, on March 24, 2004. The Respondents named in the Petition were ordered to file a limited response to the Petition in which they should address only whether the action was timely filed. Order to Show Cause and Notice to Petitioner (Doc. # 14), filed April 7, 2004. On April 23, 2004, Respondents’ Limited Response in Opposition to the Petition for Writ of Ha-beas Corpus (Doc. # 15) (hereinafter Response) was filed. On August 31, 2004, Petitioner filed his Reply (Doc. # 23), and Respondents filed a Supplement to Respondents’ Limited Response (Doc. # 25) on August 3, 2005. Finally, on August 26, 2005, Respondents filed a Second Supplement to Respondents’ Limited Response (Doc. # 26), attaching a copy of Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir.2005) (finding the state’s provision of an “incompetent” registry attorney is not an extraordinary circumstance that warrants the application of equitable tolling and the provision of an “incompetent” attorney through the state registry system is not the type of state impediment envisioned in 28 U.S.C. § 2244(d)(1)(B)), cert. granted, — U.S. -, 126 S.Ct. 1625, 164 L.Ed.2d 332 (2006). The Court conducted oral argument on January 18, 2006, to address the timeliness issue. Thereafter, I appointed Mr. Mills as co-counsel and he filed a supplemental brief on timeliness. (Doc. # 36) (hereinafter Supplemental Response). Respondents’ Reply to “Petitioner’s Supplemental Response Regarding Timeliness” (Doc. # 36) (Supplemental Reply) was filed on April 14, 2006. The Limitations Period Petitioner challenges his 1994 state court (Duval County, Florida) judgment of conviction for first degree murder, kidnapping and burglary with battery, for which he received sentences of death, life and life. The Supreme Court of Florida affirmed Petitioner’s conviction and sentence for the charge of first degree murder on March 20, 1997. Ex. B; Thomas v. State, 693 So.2d 951 (Fla.1997). Rehearing was denied on May 15, 1997. Ex. C. The mandate issued on June 18, 1997. Ex. D. A petition for writ of certiorari was filed on September 18, 1997. Ex. E. It was denied on November 17, 1997. Ex. F; Thomas v. Florida, 522 U.S. 985, 118 S.Ct. 449, 139 L.Ed.2d 385 (1997). Respondents contend, and this Court agrees, that Petitioner has not complied with the one-year period of limitation as set forth in 28 U.S.C. § 2244(d). The one-year limitation period in Petitioner’s case began to run on November 18, 1997. Thus, Petitioner should have filed this action on or before November 17, 1998, unless any periods of time can be excluded from this one-year limitation period because Petitioner was pursuing a properly filed application for state post-conviction relief. The one-year time period ran for a period of 321 days, until Petitioner filed a Motion to Vacate Judgment and Sentence with Special Request for Leave to Amend on October 5, 1998. Ex. G. Appointed Registry attorney, Jefferson Morrow, Esquire, filed the motion. Id. Amendments were filed on April 19, 2000, and on August 15, 2000. Ex. H at 1. On August 17, 2000, Mr. Morrow was allowed to withdraw as post-conviction counsel, and Dale G. Wes-tling, Sr., another Registry attorney, was appointed to represent Petitioner. Ex. A at 2. An evidentiary hearing was conducted on January 29, 2001. Ex. H at 1. The motion was denied. Ex. H. On January 30, 2003, the Supreme Court of Florida affirmed the denial of the post-conviction motion. Ex. J; Thomas v. State, 838 So.2d 535, 542 (Fla.2003). The mandate issued on March 3, 2003. Ex. K. As of March 3, 2003, Petitioner had forty-four days left of the one-year period to file his federal petition, unless he properly filed a state application for post-conviction relief during that forty-four day period, which would have tolled the limitation period. Petitioner did not file any state post-conviction motions during that forty-four day period. Thus, Petitioner’s federal petition was due to be filed by April 16, 2003. Instead of filing a federal petition for writ of habe-as corpus, Petitioner, through counsel, filed a motion for appointment of counsel with this Court on March 24, 2003. Apparently, counsel wanted the appointment of the Court before she filed the habeas petition. The Court, responding to counsel’s urgent request, promptly appointed her. Counsel knew as of the hearing with the Court on March 26, 2003, that she was going to be appointed. She could have filed the petition, even if bare-bones, by the April 16, 2003 deadline. But she did not. Indeed, only after twice being questioned by the Court, acting sua sponte, did Petitioner’s counsel finally file a petition on March 22, 2004, almost a year after her appointment. The one-year limitation period continues to run even if a petitioner files a motion for appointment of counsel in federal court until such time as a petition for writ of habeas corpus is actually filed. See Woodford v. Garceau, 538 U.S. 202, 208, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003) (holding that a federal habeas case commences with the filing of an application for habeas relief, not with the filing of a motion for appointment of federal habeas counsel); Lookingbill v. Cockrell, 293 F.3d 256, 263 (5th Cir.2002) (“A habeas petition is pending only after a petition for a writ of habeas corpus itself is filed. Thus, the filing of the federal habeas petition — not of a motion for appointment of counsel — tolls limitations.”) (internal quotation marks, citation and footnote omitted), cert. denied, 537 U.S. 1116, 123 S.Ct. 878, 154 L.Ed.2d 793 (2003); see also Stafford v. Thompson, 328 F.3d 1302, 1305 (11th Cir.2003) (per curiam) (citing Woodford for the proposition that a case does not become “pending” until the actual application for habeas corpus relief is filed in federal court); Isaacs v. Head, 300 F.3d 1232, 1245 (11th Cir.2002) (finding “the relevant date for purposes of judging AEDPA’s applicability to a habeas petition is the date on which the actual § 2254 petition was filed.”), cert. denied, 538 U.S. 988, 123 S.Ct. 1805, 155 L.Ed.2d 683 (2003). In the Reply, Petitioner urges this Court not to employ the one-year limitation as a bar to Petitioner’s case for a variety of reasons. First, Petitioner asserts that the state ignored the substantive issues presented in the Petition and Memorandum and their application to the principles of timeliness. Reply at 4. It is clear that this Court should not focus “upon the merits of the case to justify equitable tolling.” Helton v. Sec’y for Dept. of Corr., 259 F.3d 1310, 1315 (11th Cir.2001) (per curiam), cert. denied, 535 U.S. 1080, 122 S.Ct. 1965, 152 L.Ed.2d 1025 (2002). The Court should not look to the circumstances surrounding the underlying conviction; instead, the Court should look to the circumstances surrounding the late filing. The Supreme Court of the United States recently stated: Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) (citation omitted); see Anderson v. Attorney Gen. of Florida, 135 Fed.Appx. 244, 246 (11th Cir.2005) (per curiam) (not published in the Federal Reporter) (noting that in Pace, the petitioner failed to show that he exercised the requisite diligence), cert. denied, — U.S. -, 126 S.Ct. 835, 163 L.Ed.2d 711 (2005). Petitioner complains that state court appointed counsel, Mr. Morrow, squandered 320+ days prior to filing a skeletal state post-conviction motion. In the original motion, Mr. Morrow referred to his very recent appointment, and he sought leave to amend the motion. Ex. G. Upon review, the circuit court had before it a post-conviction motion and two amendments to the motion, prior to Mr. Morrow’s withdrawal as post-conviction counsel. Ex. H at 1; Ex. A at 2. Further, the Rule 3.580/3.851 motion (hereinafter 3.850 motion) was not untimely filed. Petitioner also seems to be suggesting that there was “state action” because Petitioner’s attorneys for the state post-conviction motion were court appointed Registry attorneys. Further, Petitioner asserts that the “state action” of appointing attorneys who failed or were prevented from raising all of the pertinent issues and challenges to all of Petitioner’s convictions (including the non-death cases) constituted an impediment to filing an application created by state action. Petitioner has shown no impediment to the filing of the Rule 3.850 motion or to the filing of the federal petition. No government action prevented the filing of such motions. In essence, what Petitioner is really complaining about is the conduct of court appointed counsel in filing “a mere placeholder motion” and consuming 320 + days doing so. Reply at 24. However, even if this is so, the Eleventh Circuit has made plain that no form of attorney negligence will justify equitable tolling: Equitable tolling is to be applied 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). Thus, the petitioner must show both extraordinary circumstances and due diligence in order to be entitled to equitable tolling. Drew, 297 F.3d at 1286-87. Because of the difficult burden, this Court has rejected most claims for equitable tolling. See, e.g., Johnson v. United States, 340 F.3d 1219 (11th Cir.2003) (holding that petitioner’s inaction during the year after his conviction was affirmed on direct appeal did not justify equitable tolling); Helton, 259 F.3d at 1312 (rejecting petitioner’s reliance upon counsel’s mistaken calculation of limitations period because petitioner did not show due diligence in ascertaining the correct period); Steed v. Head, 219 F.3d 1298 (11th Cir.2000) (holding that attorney’s miscalculation of the limitations period or mistake could not be the basis for equitable tolling); Sandvik v. United States, 177 F.3d 1269 (11th Cir.1999) (holding that attorney negligence will not warrant equitable tolling). Diaz v. Sec’y for the Dep’t of Corr., 362 F.3d 698, 700-01 (11th Cir.2004) (per cu-riam). Petitioner attempts to distinguish Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), by claiming that the ineffectiveness in Coleman was by an attorney who volunteered and served as counsel at Mr. Coleman’s pleasure. Here, Petitioner argues, he had appointed counsel; therefore, he contends that the state has the responsibility to ensure that he is represented by competent counsel and Petitioner should not bear the responsibility for counsel’s errors. Under Eleventh Circuit precedent, this contention must fail. In Howell v. Crosby, 415 F.3d 1250, 1251 (11th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1059, 163 L.Ed.2d 885 (2006), Howell, a Florida prisoner under sentence of death, had appointed counsel to represent him in his state post-conviction proceeding. Appointed counsel actually filed the state post-conviction motion two months after the federal limitations period had already elapsed. Id. The Eleventh Circuit found: Howell’s argument for equitable tolling fails. Howell was not a victim of extraordinary circumstances beyond his control, and the district court did not commit clear error when it determined that Howell was not diligent. As we concluded in Sandvik, Steed, and Helton v. Secretary for the Department of Corrections, 259 F.3d 1310, 1313 (11th Cir.2001), attorney negligence is not a basis for equitable tolling, especially when the petitioner cannot establish his own diligence in ascertaining the federal habeas filing deadline. Howell, 415 F.3d at 1252. The Fourth Circuit addressed a similar equitable tolling claim that was raised by the death-sentenced petitioner in Rouse v. Lee, 339 F.3d 238 (4th Cir.2003), cert. denied, 541 U.S. 905, 124 S.Ct. 1605, 158 L.Ed.2d 248 (2004). The court stated, in pertinent part: Former counsel’s errors are attributable to Rouse not because he participated in, ratified, or condoned their decisions, but because they were his agents, and their actions were attributable to him under standard principles of agency. See Coleman v. Thompson, 501 U.S. 722, 753-54, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (explaining that attorney error, short of ineffective assistance of counsel, is, under standard principles of agency, attributable to the client); Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (“[A] defendant [who] is represented by counsel whose performance is not constitutionally ineffective ... bear[s] the risk of attorney error .... ”); see also Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 92, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (“Under our system of representative litigation, each party is deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the attorney.” (internal quotation marks omitted)). In both Carrier and Coleman, the Supreme Court considered whether an attorney’s error constituted cause for a procedural default, which like equitable tolling, requires a showing that “some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Carrier, 477 U.S. at 488, 106 S.Ct. 2639, 91 L.Ed.2d 397. The Court held that “[attorney ignorance or inadvertence is not ‘cause’ because the attorney is the petitioner’s agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must ‘bear the risk of attorney error.’” Coleman, 501 U.S. at 753, 111 S.Ct. 2546, 115 L.Ed.2d 640 (quoting Carrier, 477 U.S. at 488, 106 S.Ct. 2639, 91 L.Ed.2d 397). Attorney error that constitutes ineffective assistance of counsel is not attributable to the petitioner. This is so, however, “not because ... the error is so bad that ‘the lawyer ceases to be an agent of the petitioner,’ ” but rather, because “ ‘the Sixth Amendment itself requires that responsibility for the default be imputed to the State.’ ” Id. at 754, 111 S.Ct. 2546, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (quoting Carrier, 477 U.S. at 488, 106 S.Ct. 2678, 91 L.Ed.2d 397). Thus, the Coleman Court held that attorney error during state habeas proceedings was not “cause” because “[tjhere is no constitutional right to an attorney in state post-conviction proceedings ... [and][c]onsequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings.” Id. at 752, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640. Similarly, Rouse had no constitutional right to counsel in his federal habeas proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555-56, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (no constitutional right to counsel beyond first appeal of right), Hunt v. Nuth, 57 F.3d 1327, 1340 (4th Cir.1995) (no constitutional right to counsel during federal habeas).[] Rouse did have a statutory right to counsel, see 21 U.S.C.A. § 848(q)(4) (West 1999), but there can only be constitutional ineffective assistance of counsel where there is a constitutional right to counsel. Coleman, 501 U.S. at 752, 111 S.Ct. 2546, 115 L.Ed.2d 640. In the absence of constitutional ineffective assistance of counsel, attorney error is attributable to the petitioner. Id. at 753, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640. Accordingly, because Rouse’s former habeas counsel’s error cannot be constitutionally ineffective, that error can “fairly be attributable” to Rouse and is not “external” to his own conduct. See Coleman, 501 U.S. at 753, 111 S.Ct. 2546, 115 L.Ed.2d 640. Id. at 249-50 (footnotes omitted); see also Johnson v. McBride, 381 F.3d at 589-90 (finding that the petitioner, whose petition was mailed to the court by his attorney and arrived at the court one day after the expiration of the one-year limitation period, was not entitled to equitable tolling of the limitation period because the attorney was the petitioner’s agent, whose acts were attributable to the petitioner). Petitioner claims that because he had a state statutory right to competent counsel, he cannot be charged with the actions of his attorney. As noted above, there can only be constitutionally ineffective assistance of counsel where there is a constitutional right to counsel. Petitioner’s statutory right to counsel “ ‘was established to alleviate problems in obtaining counsel to represent Florida’s death-sentenced prisoners in collateral relief proceedings,’ Spalding, 526 So.2d at 72, but ‘did not add anything to the substantive state-law or constitutional rights of such persons.’ Troedel, 479 So.2d at 737.” Durocher v. Singletary, 623 So.2d 482, 483 (Fla.) (per curiam), cert. dismissed, - U.S. -, 114 S.Ct. 23, 125 L.Ed.2d 774 (1993). Of course, Petitioner has not shown Mr. Morrow’s performance was deficient for filing the Rule 3.850 motion after 321 days of the one-year period had run. The Rule 3.850 motion was timely and was addressed by the circuit court. Unlike counsel in Howell, Petitioner’s counsel did not file the Rule 3.850 motion after the one-year federal limitation period had elapsed. In fact, in the instant case, there were forty-four days left in the federal one-year period after completion of the state postconviction proceedings. Although not entirely clear, apparently Petitioner is claiming that there was “state action” because the Registry attorney, Mr. Morrow, could not attack the plea bargain in a sister case (the murder of Petitioner’s mother). One of the aggravating circumstances in the instant case was the Petitioner’s plea and conviction in the murder case of Petitioner’s mother. Petitioner asserts that “[t]he confluence of the actions of the trial court, the court-appointed defense counsel and the prosecution forced him to remain with the counsel who ultimately forced upon Mr. Thomas the plea agreement which absolved trial counsel of all instances of ineffectiveness in both cases.” Reply at 6. The decision of Petitioner to accept a plea offer in a different case is not “state action.” There was no state action which prevented Petitioner from timely pursuing his state court and federal remedies. In fact, claims of the ineffective assistance of trial counsel were raised in the Rule 3.850 motion, an evidentiary hearing was conducted, trial counsel (Mr. Nichols) testified and the circuit court found the testimony of defense counsel more credible than that of the Defendant. Ex. H. The circuit court found that Mr. Nichols informed Petitioner that the murder of his mother could be utilized as an aggravating circumstance in the case concerning the murder of Petitioner’s wife. Id. at 26. Mr. Nichols advised Petitioner that it would be best to secure a life sentence on the mother’s case, as he felt that if the death penalty was obtained in that case, it would more likely be upheld than in the case of the murder of the wife. Id. The Court conducted oral argument on the timeliness issue on January 18, 2006. (Doc. #38). The essence of Petitioner’s counsel’s position was that Petitioner should be entitled to equitable tolling of the one-year period because federal post-conviction counsel needed more time to investigate an issue and it was unreasonable to require counsel to file a “shell” petition without affording adequate time for research and investigation in order to file a supported and coherent argument in the petition. However, this position is foreclosed by Eleventh Circuit law. See Howell, 415 F.3d at 1252; Lawrence, 421 F.3d at 1226; Logreira v. Crosby, 161 Fed.Appx. 902, 903 (11th Cir.2006) (per curiam) (not published in the Federal Reporter) (noting the remedy of equitable tolling is extraordinary and is applied sparingly, such as when state conduct prevents timely filing), petition for cert. filed, (U.S. May 12, 2006) (No. 05-11464). Here, there were no extraordinary circumstances that were beyond Petitioner’s control and unavoidable even with diligence. Petitioner and his counsel had limited, but sufficient, time to file a federal petition. Further, he has not asserted that he is actually innocent. See Wyzykowski v. Dep’t of Corr., 226 F.3d 1213, 1218-19 (11th Cir.2000) (finding the district court should address the factual issue of whether the petitioner can make a showing of actual innocence prior to addressing a challenge to the limitation period established by AEDPA based on the Suspension Clause). Briefly, in the Reply at 42, Petitioner addresses the calculation of the one-year period if 28 U.S.C. § 2244(d)(1)(C) & (D) were applicable to Petitioner’s case. Neither Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) nor Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) apply retroactively; therefore, 28 U.S.C. § 2244(d)(1)(C) is inapplicable. See Schriro v. Summerlin, 542 U.S. 348, 358, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004); Turner v. Crosby, 339 F.3d 1247, 1283 (11th Cir.2003), cert. denied, 541 U.S. 1034, 124 S.Ct. 2104, 158 L.Ed.2d 718 (2004); McCoy v. United States, 266 F.3d 1245, 1256-58 (11th Cir.2001), cert. denied, 536 U.S. 906, 122 S.Ct. 2362, 153 L.Ed.2d 183 (2002). Petitioner concedes that 28 U.S.C. § 2244(d)(1)(D) does not apply as he has not asserted actual innocence. Reply at 42. In the Supplemental Response, Petitioner claims he is entitled to equitable tolling because he directed his counsel to file a federal petition within the AEDPA deadline. In support of this argument, there is an Affidavit presented by Registry attorney Jefferson W. Morrow, Exhibit A attached to the Supplemental Response, stating the Petitioner advised him that “he wanted to pursue all available postconviction remedies, including a writ of habeas corpus in federal court if his state postcon-viction challenges were unsuccessful.” There is also an Affidavit of Mary Catherine Bonner wherein she states that Mr. Westling (substitute appointed counsel for Petitioner in state court) told her that Petitioner “had directed him to prepare and file a federal habeas petition.” Exhibit B attached to the Supplemental Response. Ms. Bonner, knowing the AEDPA deadline was approaching, and having not been appointed by the state court to replace Mr. Westling, sought appointment in this Court. Id. She was appointed to represent Petitioner by this Court in sufficient time to be able to file a federal petition, but simply failed to file a timely petition. Counsel’s decision to file late constitutes attorney negligence. That Petitioner had told his attorneys to proceed with a federal petition if he were unsuccessful in state court does not negate the fact that counsel, appointed by this Court, had time to file a Petition within the one-year period but failed to do so or chose not to do so. Petitioner argues that the Eleventh Circuit cases finding that attorney negligence is not a basis for equitable tolling are wrongly decided. This, of course, is not a question that this Court can decide. Petitioner asks this Court, instead, to “keep this matter under advisement until the Supreme Court decides Lawrence.” Supplemental Response at 10. This Court cannot ignore currently binding circuit precedent. Further, “because the State has a substantial interest in the finality of state criminal proceedings[,]” this Court must not stay or otherwise delay the proceedings to await a ruling by the Supreme Court of the United States in Lawrence. See Lawrence, 421 F.3d at 1224 n. 1. Petitioner also points to cases from other circuits, arguing there may be exceptional or limited circumstances where attorney conduct can form the basis for equitable tolling. As noted by Respondents these cases are not controlling in this Circuit: “As we concluded in Sand-vik, Steed, and Helton v. Secretary for the Department of Corrections, 259 F.3d 1310, 1313 (11th Cir.2001), attorney negligence is not a basis for equitable toll-ing_” Howell v. Crosby, 415 F.3d at 1252. In sum, equitable tolling will not be extended to these circumstances “because the ultimate failure to file within the statutory period was a direct result of decisions made and actions taken by the petitioner or his attorney. Having created the situations that caused their petitions to be time-barred, those litigants could not then avail themselves of the equitable power of the district court.” Thompson, 173 Fed.Appx. at 733. Petitioner contends that there are unique features about capital collateral proceedings in Florida that militate more powerfully for the application of equitable tolling in this case. In Florida, there are Capital Collateral Regional Counsel and a statewide system of Registry attorneys in private practice who may be appointed to represent persons convicted and sentenced to death in postconviction collateral proceedings. § 27.702(1), Fla. Stat.; § 27.710(1), Fla. Stat. Of course, here, Ms. Bonner was not appointed by the Florida courts as Capital Collateral Regional Counsel or as a Registry attorney. Even if she had been appointed by the state court, this argument was rejected in Lawrence, 421 F.3d at 1226 (“Lawrence’s assertion that the State impeded him from timely filing by providing an incompetent attorney to assist him after setting up a State registry system to monitor attorney performance, is meritless. This is not the type of State impediment envisioned in § 2244(d)(1)(B).”). The court continued: Making the most of a novel argument, Lawrence posits that the State’s provision to him of an incompetent attorney justifies the imposition of equitable tolling. This is not an extraordinary circumstance that warrants the application of equitable tolling. Lawrence, 421 F.3d at 1226. As a final matter, Petitioner argues that 28 U.S.C. § 2244(d) is unconstitutional, while recognizing that binding Eleventh Circuit precedent holds otherwise. Again, this Court must abide by Circuit law. In sum, notwithstanding the Court’s concerns expressed in the Preface to this opinion, supra, pp. 1205-07, binding precedent establishes that Petitioner is not entitled to the extraordinary relief of equitable tolling. For this reason, Mr. Thomas’ case, Case No. 3:03-cv-237-J-32, must be dismissed with prejudice as untimely filed. V. Floyd Damren Procedural Background On May 14, 2003, Petitioner Floyd Dam-ren, through counsel, filed in this Court a Motion for Leave to Proceed In Forma Pauperis (Doc. # 1). On May 20, 2003, this Court deferred ruling on the Motion for Leave to Proceed In Forma Pauperis and granted Petitioner time to fully complete and file an Affidavit of Indigency form. See Order (Doc. # 2), filed May 20, 2003. On May 30, 2003, Petitioner filed an Amended Motion for Leave to Proceed In Forma Pauperis (Doc. # 4) and an Affidavit of Floyd Damren (Doc. # 5). On June 16, 2003, this Court deferred ruling on the Amended Motion for Leave to Proceed In Forma Pauperis, stating that it would be ruled on after Petitioner completed and filed an Affidavit of Indigency form accompanied by a computer printout. See Order (Doc. # 6), filed June 16, 2003. Further, this Court granted Petitioner additional time to fully complete and file an Affidavit of Indigency form. See id. On July 28, 2003, Petitioner filed an Affidavit of Indigency (Doc. # 7) with a computer printout of his financial transactions in his prison account. On August 19, 2003, this Court granted Petitioner’s Motion for Leave to Proceed In Forma Pau-peris (Doc. # 1), Petitioner’s Amended Motion for Leave to Proceed In Forma Pauperis (Doc. # 4) and Petitioner’s Affidavit of Indigency (Doc. # 7), ruling that Petitioner may proceed in forma pauperis in this action. See Order (Doc. # 8), filed August 19, 2003. On August 29, 2003, Petitioner filed an Application for Leave to File Petition for [Writ of] Habeas Corpus under 28 U.S.C. § 2254 (Doc. # 9), requesting this Court “to hold the proceedings in abeyance and request[ing] to amend this Petition with issues from his State Habeas Petition and his State 3.851 Petition.” On September 9, 2003, this Court granted Petitioner’s Application for Leave to File Petition for [Writ of] Habeas Corpus under 28 U.S.C. § 2254 only to the extent that Petitioner was ordered to file a Petition for Writ of Habeas Corpus on or before November 12, 2003. See Order (Doc. # 10), filed September 9, 2003. On November 24, 2003, Petitioner filed a Petition for Writ of Habeas Corpus (Doc. # 12) (hereinafter Petition) pursuant to 28 U.S.C. § 2254. Thereafter, Petitioner filed an Application for Leave to File Petition for [Writ of] Habeas Corpus Under 28 U.S.C. § 2254 (Doc. # 21) and an Amended Petition for Writ of Habeas Corpus (Doc. #24). After a hearing on pending motions on July 1, 2004, this Court, on August 16, 2004, granted Jefferson W. Morrow’s Motion for Appointment of Counsel, Pursuant to 18 U.S.C. § 3001 et seq. and 21 U.S.C. § 848 et seq. for Representation in Capital Federal Habeas Corpus Proceedings (Doc. # 20) and appointed Mr. Morrow to represent Petitioner Dam-ren in this action. See Order (Doc. # 33), filed August 16, 2004. Further, this Court denied Petitioner’s Application for Leave to File Petition for [Writ of] Habeas Corpus Under 28 U.S.C. § 2254 (Doc. #21), without prejudice to the right of Petitioner to confer with co-counsel regarding seeking leave of court to file an amended petition. See id. This Court concluded that “Petitioner is now proceeding on the Petition for Writ of Habeas Corpus (Doc. # 12), filed November 24, 2003.” See id. at 3. In the Petition, Petitioner Damren challenges a 1995 state court (Clay County, Florida) judgment of conviction for first degree murder, armed burglary and aggravated assault. On November 3, 2004, Respondents filed a Motion for Summary Judgment (Doc. # 35), contending that Petitioner has not complied with the one-year period of limitation as set forth in 28 U.S.C. § 2244(d). In support of Respondents’ contentions, they submitted exhibits. On January 12, 2005, Petitioner responded to Respondents’ Motion for Summary Judgment. See Petitioner’s Response to Motion for Summary Judgment (Doc. #38) (hereinafter Petitioner’s Response) with accompanying exhibits (hereinafter Petitioner’s Ex.). Respondents replied. See Respondents’ Reply to “Petitioner’s Response to Motion for Summary Judgment” (Doe. # 40) (hereinafter Respondents’ Reply). Additionally, Respondents filed a Supplement to “Respondents’ Motion for Summary Judgment” (Doc. # 47) and a Second Supplement to “Respondents’ Motion for Summary Judgment” (Doc. #49) to notify this Court of recent case law. On January 18, 2006, oral argument was conducted to address the one-year limitation period and equitable tolling issues. Thereafter, on February 27, 2006, the Court appointed John S. Mills, Esquire, as Petitioner’s co-counsel for the limited purpose of further addressing the timeliness and equitable tolling issues. On May 15, 2006, Petitioner’s Supplemental Response Regarding Timeliness (Doc. # 60) (hereinafter Petitioner’s Supplemental Response) was filed, and Respondents’ Reply to “Petitioner’s Supplemental Response Regarding Timeliness” (Doc. # 61) (hereinafter Respondents’ Supplemental Reply) was thereafter filed on June 12, 2006. The Limitation Period After a jury trial, Petitioner Damren was convicted of first degree murder, armed burglary and aggravated assault and was sentenced to death, life imprisonment and ten years imprisonment, respectively. On direct appeal, the Supreme Court of Florida affirmed the conviction and sentences on May 8, 1997. Damren v. State, 696 So.2d 709 (Fla.1997); Ex. B. Rehearing was denied on July 8, 1997. Ex. C. The mandate was issued on August 7, 1997. Ex. D. On January 12, 1998, the United States Supreme Court denied Petitioner’s petition for writ of certiorari. Damren v. Florida, 522 U.S. 1054, 118 S.Ct. 706, 139 L.Ed.2d 648 (1998); Ex. E. Respondents contend, and this Court agrees, that Petitioner has not complied with the one-year period of limitation as set forth in 28 U.S.C. § 2244(d). See Respondents’ Motion for Summary Judgment. Petitioner’s conviction became final on January 12, 1998, when the United States Supreme Court denied his petition for writ of certiorari. This was after the April 24, 1996, effective date of the AED-PA. Therefore, AEDPA’s one-year limitation period began to run on January 13, 1998. Thus, Petitioner should have filed this action on or before January 12, 1999. The Petition, filed in this Court on November 24, 2003, would be untimely unless Petitioner Damren could avail himself of one of the statutory provisions which extends or tolls the time period. The one-year period of limitation ran for 300 days (January 13, 1998, to November 8, 1998) until Petitioner Damren, through counsel, filed a Motion to Vacate Judgment and Sentence with Special Request for Leave to Amend pursuant to Fla. R.Crim. P. 3.851 on November 9, 1998. Ex. F. On July 2, 2000, he filed an amended Rule 3.851 motion, raising twenty-six (26) claims. On April 10, 2001, the circuit court conducted an evidentiary hearing, and on June 20, 2001, the trial court denied the amended Rule 3.851 motion. Ex. G. Petitioner appealed to the Supreme Court of Florida and during the pendency of the appeal, Petitioner also filed a petition for writ of habeas corpus in the Supreme Court of Florida. On January 23, 2003, the Supreme Court of Florida affirmed the lower court’s denial of his Rule 3.851 motion and denied the petition for writ of habeas corpus. Damren v. State, 838 So.2d 512 (Fla.2003); Ex. I. The mandate was issued on February 24, 2003. Ex. J. The one-year period of limitation was tolled during the pendency of Petitioner’s Rule 3.851 motion from November 9, 1998, until February 24, 2003. The one-year period of limitation started running again the next day, on February 25, 2003. Therefore, since 300 days of the one-year period of limitation had already run, Petitioner’s habeas corpus petition in this Court should have been filed within sixty-five (65) days. In sum, Petitioner’s federal petition was due on April 30, 2003. However, instead of timely filing a federal petition for writ of habeas corpus, Petitioner, through counsel, filed a Motion for Leave to Proceed In Forma Pawperis, on May 14, 2003, in this Court. By that time, however, the limitation period had already expired. (Of course, this Court would have had no way of knowing that at the time unless it had undertaken its own independent investigation of the state court proceedings — a role courts do not usually perform.) After a total of 572 days had elapsed, Petitioner filed the Petition in this Court on November 24, 2003. The time kept running because if a petitioner files a motion to proceed in forma pauperis in federal court, the one-year period of limitation continues to run until an actual petition for writ of habeas corpus is filed. See Woodford v. Garceau, 538 U.S. at 208, 123 S.Ct. 1398 (holding that a federal habeas case commences with the filing of an application for habeas corpus relief); Stafford v. Thompson, 328 F.3d at 1305 (citing Woodford for the proposition that a case does not become “pending” until the actual application for habeas corpus relief is filed in federal court); Isaacs v. Head, 300 F.3d at 1245 (finding “the relevant date for purposes of judging AEDPA’s applicability to a habeas petition is the date on which the actual § 2254 petition was filed.”); Lookingbill v. Cockrell, 293 F.3d at 263. Thus, this action is due to be dismissed because it was filed after the expiration of the federal one-year period of limitation. Petitioner urges this Court not to employ the one-year period of limitation as a bar to Petitioner’s case. Specifically, Petitioner contends that “[s]everal occurrences have equitably tolled the running of the statute of limitation period.” Petitioner’s Response at 1. Further, Petitioner states that Respondents did not assert the limitations defense as early as possible and “ ‘lied behind a log’ and ambushed the Petitioner with an unexpected defense” almost one year after Petitioner initiated this habeas proceeding. Id. at 4 (citation omitted). However, Respondents have timely and properly asserted the one-year limitation argument. See Respondents’ Motion for Summary Judgment at 4; Respondents’ Reply at 7. For this reason, the one-year period of limitation and equitable tolling issues will be addressed. Also, Petitioner asserts that he “is equitably entitled to have his Petition heard on the merits .... “ Petitioner’s Response at 4. However, the Court does not focus on the merits of the case to justify equitable tolling. Helton v. Sec’y for Dept. of Corr., 259 F.3d at 1314-15 (citations omitted) (“The ‘extraordinary circumstances’ standard applied in this circuit focuses on the circumstances surrounding the late filing of the habeas petition, rather than the circumstances surrounding the underlying conviction.”). The Supreme Court of the United States recently stated that the litigant seeking equitable tolling is charged with the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance “stood in his way.” Pace v. DiGuglielmo, 544 U.S. at 418, 125 S.Ct. 1807 (citation omitted). As previously stated, equitable tolling is appropriate when a prisoner’s petition is untimely “because of extraordinary circumstances that are both beyond his control and unavoidable even with diligence.” Johnson v. United States, 340 F.3d at 1219 (citations omitted). The Eleventh Circuit has emphasized, however, that equitable tolling applies “only in truly extraordinary circumstances” and “is typically applied sparingly.” Id. (citations omitted); Wade v. Battle, 379 F.3d 1254, 1265 (11th Cir.2004) (citations omitted). Thus, because of the difficult burden, most claims for equitable tolling are rejected. Further, it is clear that attorney negligence does not warrant equitable tolling. Diaz v. Sec’y for the Dep’t of Corr., 362 F.3d at 700-01; Howell v. Crosby, 415 F.3d at 1252 (stating “attorney negligence is not a basis for equitable tolling, especially when the petitioner cannot establish his own diligence in ascertaining the federal habeas filing deadline”); Steed v. Head, 219 F.3d 1298 (11th Cir.2000) (holding that the attorney’s miscalculation of the limitations period or mistake could not be the basis for equitable tolling); Sandvik v. United States, 177 F.3d 1269 (11th Cir.1999) (holding that attorney negligence will not warrant equitable tolling). Here, Petitioner Damren has asserted a variety of tolling arguments. Petitioner argues that he is entitled to equitable tolling based upon Case No. 82,322. Response at 3. In Case No. 82,322, the Supreme Court of Florida, on October 20, 1997, granted extensions of time (until January 15, 1998) for filing Rule 3.851 motions for the defendants listed in the order; however, Petitioner was not included. In Re Rule of Criminal Procedure S.851 (Collateral Relief After Death Sentence Has Been Imposed) and Rule 3.850 (Motion to Vacate, Set Aside, or Correct Sentence), 700 So.2d 682 (Fla.1997); Ex. L. Similarly, a subsequent order in Case No. 82,322, issued on January 15, 1998, does not include Petitioner Damren as one of the defendants for whom the time limit was tolled (until June 1, 1998). In Re Rule of Criminal Procedure 3.851 (Collateral Relief After Death Sentence Has Been Imposed) and Rule 3.850 (Motion to Vacate, Set Aside, or Correct Sentence), 708 So.2d 912 (Fla.1998); Ex. M. Petitioner states that, on January 26, 1998, he filed a “Motion to Clarify, Second Amended Motion for Relief and Second Amended Motion to Toll and Schedule Operation of Rule 3,852” (hereinafter Motion to Clarify) in the Supreme Court of Florida. Petitioner’s Response at 2; Petitioner’s Supplemental Response at 2-3. In Petitioner’s Supplemental Response, he sets forth the following chronology: During this time period, the Supreme Court of Florida was grappling with a major transition in Florida in the way that capital defendants are represented in postconviction proceedings and the manner in which they may obtain public records necessary for those proceedings in case numbers SC60-82322 and SC60-92026. See generally Amendments to Fla. R.Crim. P.-Capital Postconviction Public Records Production (Time Tolling), 708 So.2d 913 (Fla.1998) (‘Amendments I”); Amendments to Fla. R. Crim. P.-Capital Postconviction Public Records Production (Time Tolling in Re R.Crim. P. 3.851 (Collateral Relief After Death Sentence Has Been Imposed) and Rule 3.850 (Motion to Vacate, Set Aside, or Correct Sentence), 719 So.2d 869 (Fla.1998) (“Amendments II”). On January 15, 1998, that court noted that the Capital Collateral Regional Counsels (“CCRC’s”), the agencies charged with representing these defendants, had been impeded by a lack of funding and lack of qualified attorneys and needed additional time to proceed with postconviction capital matters. Amendments I, 708 So.2d at 913-14. On January 26, 1998, the CCRC-North filed a motion for rehearing or clarification on behalf of the Petitioner in those cases and sought clarification as to how the Petitioner could proceed.!] On June 25, 1998, the supreme court granted the motion. Amendments II, 719 So.2d at 870-71. In this opinion, the court noted that the legislature had directed that effective July 1, 1998, private counsel was to be appointed to represent defendants in the Petitioner’s position. Id. at 870. The court recognized that it would have to create a registry of private attorneys for this purpose. Id. In order “[t]o accommodate the implementation of the new legislation and the necessity of establishing the registry,” the court ordered that the time to file a post-conviction motion would be tolled until October 1,1998, for a list of defendants that included the Petitioner, which the court described as defendants who would either be appointed private counsel or have CCRC designated counsel by that date. Id. at 871. Attorney Jefferson W. Morrow was the registry attorney who was appointed to represent Petitioner on October 12, 1998. (Aff. of Morrow at 1, paragraphs 1, 2.) The Petitioner affirmatively advised Mr. Morrow that he wished to preserve his right to seek a writ of habeas corpus in federal court if he