Filed: Jul. 27, 2011
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 10-15529 JULY 27, 2011 JOHN LEY Non-Argument Calendar CLERK _ D.C. Docket No. 1:10-cv-20462-AJ ANTHONY O. GEORGE, Petitioner-Appellant, versus SECRETARY DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA, Respondents-Appellees. _ Appeal from the United States District Court for the Southern District of Florida _ (July 27, 2011) Before EDMONDSON, MARTIN and
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED _ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 10-15529 JULY 27, 2011 JOHN LEY Non-Argument Calendar CLERK _ D.C. Docket No. 1:10-cv-20462-AJ ANTHONY O. GEORGE, Petitioner-Appellant, versus SECRETARY DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL, STATE OF FLORIDA, Respondents-Appellees. _ Appeal from the United States District Court for the Southern District of Florida _ (July 27, 2011) Before EDMONDSON, MARTIN and ..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15529 JULY 27, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:10-cv-20462-AJ
ANTHONY O. GEORGE,
Petitioner-Appellant,
versus
SECRETARY DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 27, 2011)
Before EDMONDSON, MARTIN and FAY, Circuit Judges.
PER CURIAM:
Anthony George, a state prisoner proceeding pro se, appeals the district
court’s dismissal of his federal habeas corpus petition under 28 U.S.C. § 2254 as
untimely under the one-year statute of limitations of the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2244(d)(1). George
argues that the district erred in finding that his § 2254 petition was untimely,
because he was entitled to equitable tolling under Holland v. Florida, 560 U.S. ---,
130 S. Ct. 2549 (2010).1 Specifically, he argues that (1) he demonstrated diligence
through his attempts to communicate with his attorney regarding the AEDPA time
requirements and his wish to preserve his right to file a § 2254 federal habeas
petition; and (2) he demonstrated extraordinary circumstances through his
attorney’s failure to satisfy professional standards of care. After careful review of
the record and the parties’ briefs, we affirm.
We review de novo the district court’s legal decision on equitable tolling.
Drew v. Dep’t of Corrs., 297 F.3d 1278, 1283 (11th Cir. 2002). We review a
district court’s determination of the relevant facts, however, including those
related to a petitioner’s diligence, for clear error.
Id. Thus, we must “affirm a
district court’s findings of fact unless the record lacks substantial evidence to
support that determination.”
Id. at 1283, 1289 (quotation marks omitted). We
1
The district court issued a certificate of appealability (“COA”) under 28 U.S.C.
§ 2253(c) only on the issue of “whether [George] is entitled to equitable tolling pursuant to
Holland v. Florida, [560 U.S. ---,] 130 S. Ct. 2549 (2010).” Our review is therefore limited to
this issue. Hodges v. Att’y Gen., State of Fla.,
506 F.3d 1337, 1340–41 (11th Cir. 2007).
2
must construe the pleadings of a pro se litigant liberally. Gomez-Diaz v. United
States, 433 F.3d 788, 791 (11th Cir. 2005). However, “[i]n deciding issues on
appeal we consider only evidence that was part of the record before the district
court.” Selman v. Cobb Cnty. Sch. Dist.,
449 F.3d 1320, 1332 (11th Cir. 2006);
see also Dominick v. Dixie Nat’l Life Ins. Co.,
809 F.2d 1559, 1573 (11th Cir.
1987) (declining to consider exhibits attached to appellate briefs that were not
presented to the trial court prior to the grant of summary judgment).
AEDPA imposes a one-year statute of limitations for filing a § 2254
petition. 28 U.S.C. § 2244(d)(1). In this case, that one-year statute of limitations
began to run from “the date on which the judgment became final.” Id. at
§ 2244(d)(1)(A).2 The district court concluded that the judgment became final on
June 13, 2007, ninety days after the denial of George’s motion for a rehearing, and
that George therefore had until June 13, 2008 to seek habeas relief. George filed
his § 2254 petition on February 10, 2010, about twenty months after the one-year
2
This is because § 2244(d)(1)(B)-(D) would not provide a later triggering date for the
statute of limitations in this case.
3
limitations period had expired.3 George argues that although his § 2254 petition
was untimely, he is entitled to equitable tolling.
Equitable tolling of the limitations period applies when a petitioner
“untimely files because of extraordinary circumstances that are both beyond his
control and unavoidable even with diligence.” Steed v. Head, 219 F.3d 1298,
1300 (11th Cir. 2000) (quotation marks omitted). “[E]quitable tolling is an
extraordinary remedy [that] is limited to rare and exceptional circumstances and
typically applied sparingly.” Hunter v. Ferrell,
587 F.3d 1304, 1308 (11th Cir.
2009) (quotation marks omitted). Equitable tolling of the AEDPA’s one-year
limitation period is warranted only if the federal habeas petitioner shows “(1) that
he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.” Holland, 560 U.S. at -
3
George filed a motion to modify his sentence under Florida Rule of Criminal Procedure
3.800 on May 31, 2007. That motion was denied on June 26, 2007, and George did not appeal
that ruling. We have previously held that a Rule 3.800(c) motion to reduce a legal sentence is
not a tolling motion under § 2244(d)(2) because the rule does not provide a procedure for raising
a legal challenge, but functions as a way for a petitioner to request leniency from a legal
sentence. Alexander v. Sec’y, Dep’t of Corrs., 523 F.3d 1291, 1292, 1295 (11th Cir. 2008). But
the Supreme Court has recently held that a similar motion to reduce a sentence qualified as an
application for ‘collateral review’ under § 2244(d), and rejected the argument that an application
merely seeking sentencing leniency does not provide for statutory tolling. Wall v. Kholi, 562
U.S. ---, ---,
131 S. Ct. 1278, 1286–87 (2011). The Supreme Court in Wall cited Alexander in
illustrating the circuit split that the Court sought to resolve in Wall.
Id. at ---, 131 S. Ct. at 1283
& n.2. However, even assuming without deciding that Wall abrogated Alexander and that
George’s AEDPA time clock was therefore tolled during the twenty-six days while his Rule
3.800 motion was pending, George’s § 2254 petition still would not have been filed until
nineteen months after the limitations period expired.
4
--, 130 S. Ct. at 2562 (quotation marks omitted); see also Diaz v. Sec’y for Dep’t
of Corrs.,
362 F.3d 698, 702 (11th Cir. 2004) (explaining that a petitioner must
show “both extraordinary circumstances and due diligence”). “Reasonable
diligence,” rather than “maximum feasible diligence” is required for equitable
tolling purposes. Holland, 560 U.S. at
---, 130 S. Ct. at 2565 (quotation marks
omitted).
The district court explained that “there is no indication that Mr. George
diligently inquired of his attorney concerning the filing of the post-conviction
motion or the effect that a later filing would have on a federal habeas corpus
petition.” Before the district court, George argued that “he has diligently pursued
his legal rights by having his family retain . . . a postconviction attorney to
represent him in filing any and all motions and petitions regarding his conviction
and sentence.” Holland makes clear that only “reasonable diligence” is required to
satisfy the first prong of the equitable tolling test. 560 U.S. at ---, 130 S. Ct. at
2565. But nothing in Holland suggests that a petitioner may establish reasonable
diligence merely by retaining an attorney. Instead, the Supreme Court in
Holland focused on the petitioner’s own actions in the face of his attorney’s
inaction.
Id. In concluding that the petitioner had exercised reasonable diligence,
the Court observed that the petitioner “wrote his attorney numerous letters seeking
5
crucial information and providing direction,” and “repeatedly contacted the state
courts, their clerks, and the Florida State Bar Association in an effort to have [the
attorney] removed from his case.” Id. The district court did not clearly err in
finding that George’s hiring of post-conviction counsel was not enough to
establish reasonable diligence.4
On appeal, George points to two letters he wrote to his post-conviction
counsel, which he has included in his appendix to his initial brief before this
Court, but which he failed to present to the district court. In the first letter, dated
September 2, 2007, George asked his post-conviction counsel to file a state post-
conviction motion under Florida Rule of Criminal Procedure 3.850 soon so that
George could file his federal habeas petition within the one-year time limit.5 In
the second letter, dated November 15, 2007, George again urged his attorney to
4
In objecting to the magistrate judge’s report and recommendation, George also stated
that he had shown diligence “by communicating his concerns to [his] attorney regarding
preservation of timeliness of the filing of a Habeas petition.” But we cannot conclude on the
basis of this one vague and unsubstantiated statement that the district court clearly erred in
finding that George failed to exercise reasonable diligence during the thirty-two month period
following the commencement of his AEDPA time clock.
5
Our review is limited by the COA to the issue of equitable tolling, but we note by way
of explanation that § 2244(d)(2) does not provide for statutory tolling here because the one-year
limitations period provided by AEDPA had already expired when George filed his state post-
conviction motion on March 16, 2009. See Tinker v. Moore, 255 F.3d 1331, 1333 (11th Cir.
2001) (holding that a properly filed application for state post-conviction relief does not provide
statutory tolling of AEDPA limitations period where the motion for state post-conviction relief
was not filed until after § 2244(d)’s one-year limitation period had expired).
6
file his Rule 3.850 motion soon because he “d[id] not wish to wa[i]ve the
opportunity to take [his] case to the federal courts.” But because George did not
present these letters to the district court in his response to the court’s order
directing him to respond to the limitations period, we cannot consider them in
determining whether the district court clearly erred in finding that George had not
exercised reasonable diligence.6 See Selman, 449 F.3d at 1332;
Dominick, 809
F.2d at 1573.
For these reasons, we conclude that the district court did not clearly err in
finding that George did not exercise reasonable diligence, and as a result did not
err in determining that George was not entitled to equitable tolling under Holland.7
6
George points to other letters he sent to his attorney, but concedes that these letters
were not related to the filing of his Rule 3.850 motion or his § 2254 petition. In any event, these
letters were also not presented to the district court. George additionally points to two letters he
received from his post-conviction counsel, which he did present to the district court. In a letter
dated April 11, 2007, his post-conviction counsel indicated that she intended to file a Rule 3.850
motion after filing a Rule 3.800 motion to modify George’s sentence. In a letter dated February
2, 2010, George’s post-conviction attorney acknowledged that she did not file the Rule 3.850
motion in time to toll George’s AEDPA time clock. In that letter, George’s attorney stated that
because she was employed by an insurance company while also continuing her private post-
conviction representation of George, he might be able to argue for equitable tolling on the theory
that she “had divided loyalties,” but she maintained that she never “acted in bad faith or
dishonestly towards” George. While these letters from George’s attorney may show the
deficiencies in her representation of him, they do not show in any way that George himself was
diligent in pursuing his rights.
7
Because we conclude that the district court did not clearly err in finding that George
failed to exercise reasonable diligence in persuing his rights, we need not consider whether
extroardinary circumstances existed to satisfy the second prong of the equitable tolling test.
See Diaz, 362 F.3d at 702 n.7.
7
We therefore AFFIRM the district court’s order dismissing George’s § 2254
petition as untimely.
AFFIRMED.
8
