[PUBLISH]
`
`IN THE UNITED STATES COURT OF APPEALS
` FILED
`FOR THE ELEVENTH CIRCUIT
`
` U.S. COURT OF APPEALS
` ELEVENTH CIRCUIT
` July 09, 2004
` THOMAS K. KAHN
` CLERK
`
`
`
`No. 04-10986
`
`D.C. Docket No. 94-00492-CV-J-20
`
`ETHERIA VERDEL JACKSON,
`
`JAMES CROSBY, Secretary,
`Florida Department of Corrections,
`
`versus
`
`
`
`Petitioner-Appellant,
`
`Respondent-Appellee.
`
`
`
`Appeal from the United States District Court
`for the Middle District of Florida
`
`
`(July 9, 2004)
`
`Before TJOFLAT, BLACK and CARNES, Circuit Judges,
`
`TJOFLAT, Circuit Judge:
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`

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`I.
`
`On December 15, 2003, the district court entered a final judgment in this
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`case denying petitioner habeas corpus relief from his conviction and sentence for
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`capital murder. On January 5, 2004, petitioner filed a motion to alter or amend
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`judgment pursuant to Federal Rule of Civil Procedure 59(e). The motion was
`1
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`untimely because petitioner failed to file it within ten days of the entry of final
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`judgment as Rule 59(e) requires. On January 29, 2004, the district court entered a
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`1
` Rule 59 authorizes motions for new trials and to alter or amend the judgment. Part (a)
`of Rule 59 specifies the grounds for motions for a new trial. The portion of part (a) pertaining to
`bench trials, such as evidentiary hearings in habeas corpus actions brought in the district courts,
`states:
`
`A new trial may be granted . . . in an action tried without a jury, for any of the reasons for
`which rehearings have heretofore been granted in suits in equity in the courts of the
`United States. On a motion for a new trial in an action tried without a jury, the court may
`open the judgment if one has been entered, take additional testimony, amend findings of
`fact and conclusions of law or make new findings and conclusions, and direct the entry of
`a new judgment.
`Part (e) of the rule, relating to motions to alter or amend judgment, states: “Any motion to alter
`or amend a judgment shall be filed no later than 10 days after entry of the judgment.”
`Attorneys Eric C. Pinkard and David R. Gemmer filed the Rule 59(e) motion on
`petitioner’s behalf. In addition to requesting Rule 59(e) relief, the motion asked the district court
`to hold the habeas proceeding in abeyance pending the Supreme Court's decision in Summerlin v.
`Stewart, 341 F.3d 1082 (9th Cir. 2003), cert. granted sub nom Schriro v. Summerlin, 124 S. Ct.
`833, 157 L. Ed. 2d 692 (Dec. 1, 2003), and to grant petitioner leave to amend his second
`amended petition for a writ of habeas corpus so that he could present several substantive
`constitutional claims (which the district court’s judgment had denied) as aspects of a new
`ineffective assistance of counsel claim. According to petitioner, his attorney, in appealing his
`conviction and sentence to the Florida Supreme Court, deprived him of his right to the effective
`assistance of counsel when he failed to present these substantive constitutional claims in
`petitioner’s brief. These issues are not before us because we are reviewing only the question of
`our jurisdiction necessitated by the untimely filing of the motion. See infra, part II. For ease of
`discussion, we refer to the motion in its entirety as petitioner’s “Rule 59(e)” motion.
`
`2
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`

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`written order stating that the motion was “DENIED.” On February 27, 2004,
`2
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`petitioner filed a notice of appeal in the district court; the notice stated that he was
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`appealing the final judgment of December 15, 2003 and the order of January 29,
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`2004.
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`On April 7, 2004, this panel dismissed petitioner’s appeal of the December
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`15, 2003 judgment in an order containing the following language:
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`Appellant’s motion to alter or amend, made pursuant to Fed. R. Civ. P. 59(e)
`was not filed within ten business days of and did not toll the appeal period
`for the December 15, 2003, judgment. Fed. R. App. P. 4(a)(4)(A); Fed. R.
`Civ. P. 6(a), 58, 60(b). Therefore the appeal is DISMISSED as to that
`order.3
`
`On April 20, 2004, petitioner moved this court to reconsider its April 7
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`order dismissing his appeal of the December 15, 2003 judgment. In his motion,
`4
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`petitioner conceded that the Rule 59(e) motion he filed in the district court on
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`January 5, 2004 might be untimely. If untimely, he asks that we treat the motion
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`2
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` The order consisted of one sentence. The sentence contained no reason for the ruling.
`
`3 t
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` Our April 7 order stated that petitioner’s notice of appeal was:
`imely to appeal the district court’s January 29, 2004, order denying the Rule 59(e)
`motion, construed as a motion under Fed. R. Civ. P. 60(b), for relief and the appeal MAY
`PROCEED from that order. Rice v. Ford Motor Co., 88 F.3d 914 918-19 (11th Cir.
`1996); Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993). The appeal
`shall be limited to a determination of whether the district court abused its discretion in
`denying the motion for relief and to set aside the judgment, and shall not extend to the
`validity of the underlying order per se.
`
`4
` Eric C. Pinkard, one of the lawyers who filed petitioner’s Rule 59(e) motion in the
`district court, filed petitioner’s motion for reconsideration.
`
`3
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`

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`as timely under the “unique circumstances” doctrine. He cites Willis v. Newsome,
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`747 F.2d 605 (11th Cir. 1984), in which we granted relief under that doctrine, and
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`states that the unique circumstances surrounding the filing of petitioner’s Rule
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`59(e) motion “fall[] squarely within the situation compelling relief in Willis.”
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`The “unique circumstances” petitioner relies on are set out in the affidavit of
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`one of the attorneys who filed his Rule 59(e) motion, David R. Gemmer. In his
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`affidavit, Gemmer states that “[o]ne of my tasks [in filing the Rule 59(e) motion]
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`was to determine the deadline for filing the motion.” To this end, he reviewed the
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`Federal Rules of Civil Procedure and the district court’s local rules. He
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`understood from that review that the Motion had to be timely filed within
`ten days from the date of entry of the order in question. However, [he] also
`was aware of Fed. R. Civ. P[.] 6 and Local Rule 4.20, which provided for
`three additional days to file when there had been service of a notice or paper
`by mail.[ ] While the
`5
`
`5
` In referring to Rule 6, Gemmer was apparently focusing on the provisions of part (e) of
`the rule, which states:
`Whenever a party has the right or is required to do some act or take some proceedings
`within a prescribed period after the service of a notice or other paper upon the party and
`the notice or paper is served upon the party under Rule 5(b)(2)(B), (C), or (D), 3 days
`shall be added to the prescribed period.
`Rule 5 governs “Serving and Filing Pleadings and Other Papers.” Part (a), speaks, in pertinent
`part, to “Service: When Required.”
`Except as otherwise provided in these rules, every order required by its terms to be
`served, every pleading subsequent to the original complaint unless the court otherwise
`orders because of numerous defendants, every paper relating to discovery required to be
`served upon a party unless the court otherwise orders, every written motion other than
`one which may be heard ex parte, and every written notice, appearance, demand, offer of
`judgment, designation of record on appeal, and similar paper shall be served upon each of
`the parties. No service need be made on parties in default for failure to appear except that
`
`4
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`

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`pleadings asserting new or additional claims for relief against them shall be served upon
`them in the manner provided for service of summons in Rule 4.
`(emphasis added). Subparts (b)(2)(B), (C), and (D), respectively, authorize service [under part
`(a)], by mail, by leaving a copy with the clerk of the court “if the person served has no known
`address,” and by “other means, including electronic means.”
`The district court’s order denying petitioner habeas corpus relief did not require “by its
`terms” that it be “served” on the parties. The final judgment entered pursuant to that order on
`December 15, 2003 was “set forth on a separate document,” as required by Federal Rule of Civil
`Procedure 58. The clerk thereafter served copies of the order and final judgment on the parties as
`required by Rule 77(d). It is important to note that the clerk’s failure to notify a party of the
`issuance of an order or the entry of final judgment “does not affect the time to appeal or relieve
`or authorize the court to relieve a party for failure to appeal within the time allowed, except as
`permitted in Rule 4(a) of the Federal Rules of Appellate Procedure.” Fed. R. Civ. P. 77(d). By
`the same token, the fact that the clerk serves the parties by mail with notice of the entry of
`judgment does not extend the time for filing a notice of appeal by three days pursuant to Rule
`6(e).
`
`For purposes of Rule 59(b) and (e)’s ten-day limitations periods, we focus on when the
`judgment is entered, not when it is served. Fed. R. Civ. P. 59(b), (e) (stating that such motions
`“shall be filed no later than 10 days after entry of the judgment” (emphasis added)). Rule 58
`governs entry of judgment. Part (a)(1) requires, “Every judgment and amended judgment must
`be set forth on a separate document . . . .” Part (a)(1) then lists exceptions to the separate
`document requirement that are not applicable here. Part (b) states, in pertinent part:
`Judgment is entered for purposes of these rules: . . .
`(2) if Rule 58(a)(1) requires a separate document, when it is entered in the civil docket
`under Rule 79(a) and when the earlier of these events occurs:
`(A) when it is set forth on a separate document, or
`(B) when 150 days have run from the entry in the civil docket under Rule 79(a).
`In this case, Rule 58(a)(1) required a separate document for the December 15, 2003 judgment.
`The judgment satisfied both prongs of Rule 58(a)(2) on December 15, 2003, when it was both
`entered on the docket and set forth in a separate document. December 15 was therefore the date
`the judgment was entered under Rule 58, and the date from which the Rule 59(e) limitations
`period ran. Because Rule 6(e) only applies when a party “has the right or is required to do some
`act or take some proceedings within a prescribed period after the service” (emphasis added),
`while Rule 59(b) and (e) require action to be taken within “10 days after entry of the judgment,”
`(emphasis added) Rule 6(e) can never extend the time for filing a Rule 59(b) or (e) motion.
`Local Rule 4.20 provides:
`(a) Pursuant to Fed.R.Civ.P. 6(a) and (e), whenever a period of time prescribed or
`allowed by the Federal Rules of Civil Procedure or the Rules of the District Court of the
`United States for the Middle District of Florida, or by any applicable statute is less than
`eleven (11) days and there has been service of a notice or other paper upon a party by
`mail, then the period of time which that party has to act shall be computed as follows:
`(1) By first calculating the original prescribed period pursuant to Fed.R.Civ.P. 6(a); and
`
`5
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`

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`[December 15, 2003 judgment] had been mailed to [his office, he] was not
`sure whether the local rule applied to the Motion. [He] either had no
`knowledge or had no recollection of Cavaliere v. Allstate Insurance Co.,
`996 F.2d 1111 (11th Cir. 1993).” [See infra part II.]
`
`After reviewing the above rules, Gemmer telephoned “the office of the
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`Clerk in the Federal District Court . . . several days before December 31, 2003.” 6
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`During his conversation with the woman who answered the telephone, he
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`mentioned Local Rule 4.20 and asked whether Local Rule 4.20 “applied. She
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`affirmatively told [him] that Local Rule 4.20 applied to [his] situation.”
`
`Responding to his statement that he was having “problems with counting the
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`holidays,” she said that “December 25 and 26th were official court holidays, the
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`extra day being established by the President in a special order.” He then “counted
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`off the days accounting for the holidays and Rule 4.20 and determined that
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`Monday, January 5, 2004, would be the deadline for filing the [m]otion.” “Had
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`the clerk expressed any doubt . . . about the application of Rule 4.20, [he] would
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`(2) By then adding three (3) days to the original prescribed period pursuant to
`Fed.R.Civ.P. 6(e). The three (3) days shall be calculated beginning with the day following
`the last day of the original prescribed period, and shall be counted consecutively
`regardless of whether any day of this three (3) day period is a Saturday, Sunday, or legal
`holiday as defined in Fed.R.Civ.P. 6(a). The third day shall be treated as the last day of
`the period unless it is a Saturday, Sunday, or legal holiday in which event the period runs
`until the end of the next day which is not a Saturday, Sunday, or legal holiday.
`M.D. Fla. Local R. 4.20.
`
`6
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` Gemmer “did not obtain or recall the name of the clerk [he] spoke with.”
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`6
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`

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`have conducted additional research, but her answer was clear, emphatic, and
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`unreserved, as was her affirmation that, accounting for holidays, weekends, and
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`Rule 4.20, January 5, 2004 was [his] deadline.” Nonetheless, “[b]oth the clerk and
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`[Gemmer] acknowledged that the clerk’s representations were not binding.”
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`Gemmer goes on to state that his
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`confidence that the motion had passed muster as timely was increased when
`the state and the court addressed the Application for Certificate of
`Appealability substantively [i.e., for the purpose of identifying claims that
`satisfied the criterion of 28 U.S.C. § 2253(c)(3)] , rather than dismissively
`as based on a void notice of appeal. This buttressed [his] belief that the
`denial of the Motion to Alter or Amend was based on the merits.
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`In the body of his motion for reconsideration, petitioner urges that, in
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`determining whether the unique circumstances doctrine applies, we should take
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`into account, in addition to what Gemmer says in his affidavit, the following
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`factors. First, the State, in responding to his Rule 59(e) motion, did not contend
`7
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`that it was untimely. “Had it done so in a timely fashion . . . , [petitioner] could
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`have filed the Notice of Appeal in a timely fashion.” Second,
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`[h]ad the trial judge denied the Motion for untimeliness January 27, 2004,
`[petitioner] would have had more than two weeks to seek relief for
`excusable neglect under Fed. R. App. P. 4(a)(5). Instead, the lack of any
`objection or notice of the issue in this case lulled counsel into proceeding on
`
`7
` If petitioner is correct that under Local Rule 4.20, his Rule 59(e) motion was timely,
`application of the unique circumstances doctrine is unnecessary. He invokes the doctrine as a
`cautionary measure, realizing that Local Rule 4.20’s application is problematic.
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`7
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`

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`the schedule based on the assumption the Rule 59(e) motion was timely.
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`II.
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`A notice of appeal challenging the final judgment in a civil action must be
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`filed no later than thirty days after the judgment is entered on the district court’s
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`docket. Fed. R. App. P. 4(a)(1)(A). A timely Rule 59(e) motion to alter or amend
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`the judgment automatically tolls this thirty-day period, so that it begins to run from
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`the date of the order denying the motion. Fed. R. App. P. 4(a)(4)(A). The
`8
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`motion to alter or amend the judgment is timely if filed “no later than 10 days after
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`entry of judgment.” Fed. R. Civ. P. 59(e); see Advanced Estimating Sys., Inc. v.
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`Riney, 77 F.3d 1322, 1323 (11th Cir. 1996) (“Untimely motions under Rule[] 59
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`. . . will not toll the time for filing an appeal.”).
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`Because the time period for filing a motion to alter or amend the judgment
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`is less than eleven days, intermediate Saturdays, Sundays, and legal holidays are
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`not included in the computation. Fed. R. Civ. P. 6(a). Legal holidays include,
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`inter alia, Christmas Day, New Year’s Day, and “any other day appointed as a
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`8
` Federal Rule of Appellate Procedure 4(a)(4)(A) also tolls the time for filing a notice of
`appeal when the appellant moves the district court for the entry of judgment under Rule 50(b), to
`amend or make additional factual findings under Rule 52(b), for attorney’s fees under Rule 54,
`for a new trial under Rule 59, or for relief under Rule 60 “if the motion is filed no later than 10
`days after the judgment is entered.” When one of these motions is filed, the time for filing an
`appeal challenging the final judgment runs “from the entry of the order disposing of the last such
`remaining motion.” Fed. R. App. P. 4(a)(4)(A).
`
`8
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`

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`holiday by the President or the Congress of the United States . . . .” Id.
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`In this case, the judgment was entered on Monday, December 15, 2003. To
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`toll the time for filing an appeal, petitioner’s motion to alter or amend the
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`judgment had to have been filed by Tuesday, December 30, which was ten days
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`later, not counting two weekends and Christmas Day. The motion was actually
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`filed on January 5, 2004. The motion was therefore untimely and did not toll the
`9
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`time for filing a notice of appeal from the December 15 judgment. Accordingly,
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`the notice of appeal was due, as prescribed by Federal Rule of Appellate
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`Procedure 4(a)(4)(A), on January 14, 2004, which was thirty days after the entry of
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`the December 15 judgment. The notice of appeal petitioner filed on February 27,
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`2004 was therefore untimely.
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`According to his affidavit, Gemmer believed that “Fed. R. Civ. P[.] 6 and
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`Local Rule 4.20 . . . provided for three additional days to file when there had been
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`service of a notice or paper by mail.” He had received the December 15, 2003
`
`9
` According to petitioner, the motion was timely if one takes into account three days
`under Local Rule 4.20 and December 26 as a “day appointed as a holiday by the President.” See
`Fed. R. Civ. P. 6(a). In his affidavit, Gemmer states that the clerk’s office employee with whom
`he spoke over the telephone told him that the President had appointed December 26 a holiday.
`The record does not indicate whether December 26 was in fact such a holiday, and we decline to
`take judicial notice of the matter on our own initiative. Whether December 26 was a declared
`holiday is of no moment, however. Petitioner fails to convince us that Local Rule 4.20 provided
`him three extra days to file his Rule 59(e) motion. In short, even if December 26 was a holiday
`ordered by the President, petitioner had to file his motion no later than Wednesday, December
`31, 2003.
`
`9
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`

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`judgment by mail; nevertheless, he was “not sure whether the local rule applied to
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`[his Rule 59(e)] Motion.”
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`The Rule 6 provision Gemmer was referring to is part (e), which we quote
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`in the margin. See supra note 5. Gemmer was unfamiliar with our decision in
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`Cavaliere v. Allstate Ins. Co., 996 F.2d 1111 (11th Cir. 1993). Had he read it, he
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`would have discovered that the appellant there, Cavaliere, made the same
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`argument about Rule 6(e) that he and his co-counsel advance here. Cavaliere
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`argued that because the final judgment was “served” by the clerk of the court by
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`mail,
`10
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` Rule 6(e) provided him with three extra days to file his Rule 50(b) motion
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`for new trial. We rejected Caviliere’s argument. We held that Rule 6(b), which
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`bars the district court from “extend[ing] the time for taking any action under Rules
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`50(b) . . . and [59](e),” renders Rule 6(e) ineffective with respect to the time for
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`filing Rule 59 motions. Given this holding, is petitioner’s argument that Local
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`Rule 4.20 provided him with three extra days for filing his Rule 59(e) motion
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`valid? The answer has to be no.
`
`10
` The panel’s opinion in Cavaliere does not indicate whether Cavaliere contended that
`he received the final judgment by mail. According to the opinion, his argument was “as follows:
`Under Rule 77(d), the court clerk was required to serve the judgment on Cavaliere by mail;
`Cavaliere had the ‘right’ to file his motion for a new trial ‘within a prescribed period’; therefore,
`Cavaliere was entitled to three extra days.” 996 F.2d at 1113. The fact that Rule 77(d) requires
`the clerk to notify the parties of the entry of final judgment does not extend the time for filing a
`notice of appeal and, thus, the time for filing a Rule 59 motion. See supra note 5.
`
`10
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`

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`The district court promulgated Local Rule 4.20 under the authority provided
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`by 28 U.S.C. § 2071(a), which states:
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`The Supreme Court and all courts established by Act of Congress
`may from time to time prescribe rules for the conduct of their
`business. Such rules shall be consistent with Acts of Congress and
`rules of practice and procedure prescribed under [28 U.S.C. § 2072].
`
`(emphasis added.). Federal Rule of Civil Procedure 6 (and each of its subparts)
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`was prescribed under § 2072. Rule 83 states in part (a) that “[a] local rule shall be
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`consistent with—but not duplicative of—Acts of Congress and rules adopted
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`under 28 U.S.C. §2072 . . . .” Local Rule 4.20, to the extent it is inconsistent with
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`Rule 6(e), is therefore invalid. Local Rule 4.20’s allowance of three extra days for
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`filing Rule 59 motions is inconsistent with Rule 6(b)’s ban on extending the rule’s
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`ten-day limitations period and is therefore a nullity. In sum, petitioner’s Rule
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`59(e) motion was untimely.
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`III.
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`Petitioner asks that we treat his motion as timely under the “unique
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`circumstances” doctrine. The unique circumstances doctrine excuses a litigant’s
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`failure to abide by the jurisdictional time limitations established by the rules, such
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`as the ten-day limitations period prescribed by Rule 59, when the failure is caused
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`by the litigant’s reasonable reliance on a specific assurance by a judicial officer.
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`11
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`

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`Hollins v. Dep’t of Corr., 191 F.3d 1324, 1327 (11th Cir. 1999). In determining
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`whether the doctrine should be invoked, we focus on “the reasonableness of the
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`appellant’s reliance on the action of the district court.” Pinion v. Dow Chem.,
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`U.S.A., 928 F.2d 1522, 1532 (11th Cir. 1991). “[A]ny judicial action prior to the
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`expiration of the relevant time period for appeal that could have lulled the
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`appellant into inactivity may permit our application of the doctrine.” Hollins, 191
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`F.3d at 1327 (citing Pinion, 928 F.2d at 1529) (marks and citations omitted).
`
`The unique circumstances petitioner cites are set out in Gemmer’s affidavit
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`and the body of petitioner’s motion for reconsideration. Reduced to their
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`essentials, they are: (1) that Gemmer obtained the assistance of someone in the
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`clerk’s office to calculate the number of days he had in which to file petitioner’s
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`Rule 59(e) motion; specifically, the holidays that were to be counted and whether,
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`under Rule 6(e) and Local Rule 4.20, he had three extra days, in addition to the ten
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`days provided by the rule, to file the motion; (2) that the State did not object to the
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`motion as untimely; and (3) that the district court, in denying the motion, did not
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`do so on the ground that it was untimely filed.
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`The facts petitioner relies upon to satisfy the unique circumstances inquiry
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`mirror those relied upon by appellant Dow Chemical in Pinion. If anything, Dow
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`Chemical presented a stronger case for the application of the doctrine than
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`12
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`

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`petitioner has. In Pinion, the district court, giving effect to the jury’s verdict,
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`entered a $2,450,000 judgment against Dow Chemical. 928 F.2d at 1524. Two
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`days later, Dow Chemical presented the court with a consent order (signed by
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`counsel for Dow Chemical and the plaintiffs) purporting to give Dow Chemical a
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`thirty-day extension to file post-trial motions. Id. The court signed that consent
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`order and another consent order several weeks later. Id. Within the time provided
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`by the second extension, Dow Chemical filed a motion for judgment
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`notwithstanding the verdict pursuant to Rule 50(b) of the Federal Rules of Civil
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`Procedure and, alternatively, a motion for new trial pursuant to Rule 59. Id. The
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`court denied both motions, and Dow Chemical appealed. Id.
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`Dow Chemical filed its notice of appeal ninety-six days after the entry of
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`final judgment, long after the thirty-day appeal period Rule 4(a) of the Federal
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`Rules of Appellate Procedure provides.
`11
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` Although the plaintiffs did not question
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`our jurisdiction to entertain the appeal, we did so own our own initiative. Id.
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`After concluding that Dow Chemical’s post-trial motions were untimely and
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`thus did not toll the time for taking an appeal under Rule 4(a), we launched into
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`the unique circumstances inquiry, assessing the “reasonableness of [Dow
`
`11
` The notice of appeal was so late that any extension Federal Rule of Appellate
`Procedure 4(a)(5) may have provided was unavailable.
`
`13
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`Chemical’s] reliance on the action of the district court.” Id. at 1532. Specifically,
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`“[w]as it reasonable for Dow to rely upon the district court’s improper extension
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`of the time for filing post-trial motions, in spite of the explicit language of Rule
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`6(b) prohibiting the district court from granting such an extension?” Id. Our
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`answer was clear: “When the problem is framed in this manner, we must answer
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`‘No.’” Id. “[T]he more apparent it becomes that the party’s filing error stems as
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`much from the party’s own negligence in simply not reading or inquiring about the
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`Rules, as it does from actual reliance on some action by the district court, the
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`circumstances become far less ‘unique.’” Id. at 1533.
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`In Pinion, counsel admitted that they “‘inadvertently overlooked the Rule
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`6(b) prohibition.’” Id. In the case at hand, petitioner’s counsel was similarly
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`neglectful, overlooking Rule(6)(b)’s prohibition and our decision in Cavaliere. In
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`Pinion, we cited the Third Circuit’s comments in a case presenting a similar
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`scenario:
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`The unique circumstances doctrine has never been extended to an
`attorney’s miscalculation of the applicable time limits, and we see no
`reason to do so here even if the trial judge also shared that incorrect
`assumption.
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`Id. (quoting Kraus v. Consolidated Rail Corp., 899 F.2d 1360, 1365-66 (3d Cir.
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`1990)). We also cited a Tenth Circuit case for the proposition that an attorney
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`14
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`cannot reasonably rely on an improper enlargement of the time to file a notice of
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`appeal “in light of his ‘duty to familiarize himself with the appellate rules.’” See
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`id. (quoting Certain Underwriters at Lloyds of London v. Evans, 895 F.2d 1255,
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`1257-58 (10th Cir. 1990)). In rejecting the argument that counsel were justified in
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`relying on the district court’s unlawful ruling, the Certain Underwriters court said:
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`counsel either “knew or should have known” that the district court had exceeded
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`the maximum allowable extension under App. Rule 4(a)(5). 896 F.2d at 1258. So,
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`too, in Pinion: counsel were not entitled to rely on the district court entry of an
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`order extending the ten-day period for filing post-trial motions under Rules 50(b)
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`and 59. To this effect we cited a Seventh Circuit observation in “United States v.
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`Hill, 826 F.2d 507, 508 (7th Cir. 1987) (‘The Supreme Court has not held or even
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`hinted that a defendant’s own neglect, or that of his lawyer, extends a
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`jurisdictional time limit.’).” Pinion, 928 F.2d at 1533.
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`Pinion makes clear that it was unreasonable for petitioner’s counsel to rely
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`on the State’s failure to oppose petitioner’s Rule 59(e) motion as time-barred or to
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`read the district court’s denial of the motion as a ruling on its merits. And, if
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`counsel in Pinion could not rely on the district court’s extension orders, certainly
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`counsel in this case could not rely on an unknown clerk’s office employee’s
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`statement that Local Rule 4.20 gave counsel three extra days to file petitioner’s
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`motion, especially after the employee told counsel, in Gemmer’s words, that her
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`“representations were not binding.”12
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`Precedent requires that we deny petitioner’s motion for reconsideration. It
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`is, accordingly,
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`DENIED.
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`12
` Petitioner argues that Willis v. Newsome, 747 F.2d 605 (11th Cir. 1984), in which we
`provided relief under the unique circumstances doctrine, dictates our decision. We disagree. The
`circumstances in that case and the circumstances here cannot reasonably be considered
`analogous. There, “the district court’s filing clerk” told appellant’s attorney that appellant’s
`notice of appeal would be stamped filed on the date he placed the notice in the United States
`mails. Id. at 606. In essence, what the filing clerk told counsel was that the post office was a
`repository of the clerk’s office, a representation that counsel could neither affirm nor refute by
`consulting the Federal Rules of Procedure or the case law.
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`BLACK, Circuit Judge, specially concurring:
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`Because this is a capital case, I find the result reached today very troubling.
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`Ultimately, however, the facts in this case do not permit us to apply the “unique
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`circumstances” doctrine.
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`There was no reliance upon a representation or order from the district court.
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`See Butler v. Coral Volkswagen, Inc., 804 F.2d 612, 613 (11th Cir. 1986)
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`(discussing petitioner’s reliance on the district court’s extension of the time in
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`which a new trial motion could be amended); Inglese v. Warden, U.S.
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`Penitentiary, 687 F.2d 362, 362–63 (11th Cir. 1982) (discussing petitioner’s
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`reliance on the district court’s order extending the time in which a Rule 59(e)
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`motion could be filed). Nor was there reliance on assurances received from the
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`clerk’s office pertaining to the administrative functions of the clerk’s office, about
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`which attorney familiarity could not be presumed. See Hollins v. Department of
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`Corrections, 191 F.3d 1324, 1326 (11th Cir. 1999) (observing that the district
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`court’s PACER system failed to show the district court’s entry of a final order);
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`Willis v. Newsome, 747 F.2d 605, 606 (11th Cir. 1984) (noting that the clerk’s
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`office gave assurances regarding “local custom” and practice for stamping notices
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`of appeal).
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`Here, Petitioner’s counsel called and asked the clerk for legal
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`advice—specifically, how to interpret the procedural rules regarding the time for
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`filing a Rule 59(e) motion. Petitioner thus did not rely on either representations
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`made by the district court or assurances from the clerk’s office pertaining to an
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`administrative function.
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`The “unique circumstances” doctrine does not permit us to reassign the
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`lawyer’s obligation to read the relevant rules and case law. In other words, it is
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`not the responsibility of the clerk’s office to inform the lawyer of the law. See
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`Rezzonico v. H & R Block, Inc., 182 F.3d 144, 152 (2d Cir. 1999) (finding no
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`unique circumstances where appellants relied on representations from the clerk’s
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`office involving legal matters). As we have previously noted, even in a case as
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`grave as this, an equitable remedy such as the “unique circumstances” doctrine
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`does “not exist merely to rehabilitate attorney oversight or inadvertence.” Pinion
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`v. Dow Chemical, U.S.A., 928 F.2d 1522, 1534 (11th Cir. 1991). Therefore, I must
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`very reluctantly join in the opinion.
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`CARNES, Circuit Judge, specially concurring:
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`Like Judge Black, I’m not fond of the result in this case but recognize that
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`the law and the facts with which we are presented require it.
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`This would-be appellant has an experienced attorney who serves as
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`Assistant Capital Collateral Regional Counsel-Middle Region of Florida.
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`Experienced as this counsel is, he screwed up. If one credits his affidavit, which
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`given the present posture of the case we must, he unjustifiably sought and relied
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`upon the advice of an unidentified person in the local clerk’s office when he could
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`and should have found the answer to his legal question himself. Not only that, but
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`his affidavit discloses that both the person in the clerk’s office and counsel
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`acknowledged during their telephone conversation “that the clerk’s representations
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`were not binding.”
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`In these circumstances, reliance upon that advice was unreasonable to say
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`the least, and more to the point, it is outside our unique circumstances doctrine.
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`See Pinion v. Dow Chem. U.S.A., 928 F.2d 1522 (11th Cir. 1991); Willis v.
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`Newsome, 747 F.2d 605, 606 (11th Cir. 1984). If counsel had sufficiently
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`researched the matter about which he had a question, as he should have, he would
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`have turned up our decision in Cavaliere v. Allstate Ins. Co., 996 F.2d 1111 (11th
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`Cir. 1993), and Fed.R.Civ.P. 83(a)(1). Instead, he put at risk his client’s right to
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`appeal the judgment against him in return for the prospect of gaining a few days
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`extra time for filing a Rule 59(e) motion.
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`If this were a case involving two corporations, we would apply the
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`established rules, w