Filed: Feb. 17, 2010
Latest Update: Mar. 02, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-13694 ELEVENTH CIRCUIT FEBRUARY 17, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 08-02004-CV-TWT-1 SHERWIN PERKINS, Petitioner-Appellant, versus THOMAS AMMONS, Respondent-Appellee. _ Appeal from the United States District Court for the Northern District of Georgia _ (February 17, 2010) Before TJOFLAT, BIRCH and WILSON, Circuit Judges. PER CURIAM: Sherwin S. Perki
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-13694 ELEVENTH CIRCUIT FEBRUARY 17, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 08-02004-CV-TWT-1 SHERWIN PERKINS, Petitioner-Appellant, versus THOMAS AMMONS, Respondent-Appellee. _ Appeal from the United States District Court for the Northern District of Georgia _ (February 17, 2010) Before TJOFLAT, BIRCH and WILSON, Circuit Judges. PER CURIAM: Sherwin S. Perkin..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13694 ELEVENTH CIRCUIT
FEBRUARY 17, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-02004-CV-TWT-1
SHERWIN PERKINS,
Petitioner-Appellant,
versus
THOMAS AMMONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 17, 2010)
Before TJOFLAT, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Sherwin S. Perkins, a pro se Georgia prisoner, appeals the district court’s
dismissal of his federal habeas corpus petition, brought under 28 U.S.C. § 2254, as
time-barred by the one-year statute of limitations of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), Pub.L.No. 104-132, 110 Stat. 1214
(1996). Because Perkins has not shown that the district court erred in determining
that he had not demonstrated either that he was diligent or that extraordinary
circumstances prevented the timely filing of his habeas petition, equitable tolling
does not apply. Accordingly, we AFFIRM.
I. BACKGROUND
In June 2008, Perkins executed his pro se § 2254 habeas petition, raising
several constitutional claims. R1-1 at 7-16 and 22. In this petition, Perkins
admitted that his state judgment of conviction became final over one year prior to
the filing of his habeas petition, but stated that he filed (1) a motion to withdraw
his guilty plea and resume trial in October 2005, and (2) a motion for a new trial in
December 2005, both of which the DeKalb County Superior Court failed to
respond to. R1-1 at 21. Perkins also stated that he filed a state habeas petition in
October 2006, as well as an application for probable cause with the Georgia
Supreme Court, that were denied. Id. Therefore, Perkins claimed, he had no
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further state remedies available to him and was entitled to habeas relief. Id. at 21-22.
The state responded that the district court should dismiss Perkins’s petition
as untimely because (1) it was not filed within one year after the state conviction
became final pursuant to 28 U.S.C. § 2244(d)(1)(A), (2) neither statutory nor
equitable tolling applied to render Perkins’s petition timely, and (3) he filed it 82
days late. R1-5 at 1-2; R1-5-2 at 1-6. A review of the state’s exhibits reveals that
Perkins pleaded guilty in August 2005 in DeKalb County Superior Court to
various child abuse and sexual assault charges. R1-7-2 at 1. The following
month, Perkins sent a letter to the superior court attempting to withdraw his guilty
plea. R2-15-2. Perkins executed a state habeas corpus petition in October 2006
that was denied 11 months later, and an application for a certificate of probable
cause to appeal with the Supreme Court of Georgia that was denied in January
2008. R1-7-2 at 1-5; R1-7-3 at 50, 53, 55.
Following the state’s response and motion to dismiss, the magistrate judge
ordered the parties to supplement the record with additional state court records in
order to determine whether statutory tolling applied. R1-10; R2-13. Perkins also
submitted a reply brief in which he argued in part that (1) he had asked his counsel
to file plea withdrawal motions and his counsel never acknowledged these
requests, and (2) he had exercised due diligence by submitting at least one letter
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seeking to withdraw his plea. R2-19 at 3-5. The magistrate judge then issued a
report and recommendation, recommending that the habeas petition be dismissed
as untimely because Perkins had filed it 102 days late. R2-20-2 at 1, 5. The
magistrate judge determined that because Perkins did not attempt to “demonstrate
either that he was diligent or that extraordinary circumstances prevented timely
filing of his habeas petition,” there was no basis for equitable tolling. Id. at 5-6.
The magistrate judge rejected Perkins’s argument that the filing of his letters
seeking withdrawal of his guilty plea statutorily tolled the federal limitations
period.
Id. at 6-7.
Perkins objected to the recommendation, arguing, inter alia, that (1) he
made good faith attempts to comply with state law requirements and exercised due
diligence and showed extraordinary circumstances in trying to exhaust his state
remedies in a timely manner, (2) his defense counsel abandoned him when he
sought her assistance in withdrawing his plea, (3) the superior court failed to
respond to his September 2005 letter in which he sought to withdraw his plea, and
(4) he suffered an impediment due to the superior court’s failure to respond to his
letters and the state’s deliberate delay in responding to his motions. R2-23 at 1-8.
Over Perkins’s objections, the district court adopted the report and
recommendation, agreeing that Perkins’s § 2254 petition was not filed within the
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one-year statute of limitation period, and dismissed the petition as untimely. R2-
25, R2-26.
In his petition for a certificate of appealability (“COA”), Perkins noted that
he was disabled, although he did not specify the nature of his disability, and
argued that he was entitled to equitable and statutory tolling. R2-29 at 2, 4-7.
Perkins also argued that the federal district court erred in failing to rule on his
constitutional claims. Id. at 6. In his amendment to the COA, Perkins argued,
inter alia, that the district court erred in refusing to equitably toll the limitations
period because he diligently pursued habeas relief and his attorney abandoned
him. R2-32 at 2-4. The district court granted a COA on the limited issue of
whether Perkins was entitled to equitable tolling of the one-year statute of
limitations. R2-35.
II. DISCUSSION
Perkins notes in his brief to us that he is disabled, but again fails to indicate
the nature of his disability. Perkins argues that he filed two motions to withdraw
his plea with the DeKalb County Superior Court and that the court never
responded to either of these motions. He also states that he filed a motion for a
new trial. According to Perkins, these motions are still pending and will
statutorily toll the one-year statute of limitations, and he should have received an
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evidentiary hearing on the tolling issue. Based on these motions, he argues that he
made good faith attempts to seek state remedies and that equitable tolling is
appropriate because of extraordinary circumstances that were beyond his control
and unavoidable even with his diligence. Perkins also contends that equitable
tolling is appropriate because his attorney’s misconduct in failing to file a direct
appeal reached the level of “utter abandonment,” and the state’s conduct in
delaying the exhaustion of his state remedies warrants tolling. Appellant’s Brief at
8. According to Perkins, the state failed to present the appropriate records to the
district court or to him, but he does not specify what records should have been
produced. Perkins also raises various constitutional challenges to his convictions.
Appellate review is limited to the issues specified in the COA. Murray v.
United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998). Moreover, arguments not
clearly raised in an appellate brief are abandoned and we will address them. See
Jones v. Campbell,
436 F.3d 1285, 1303 (11th Cir. 2006) (citations omitted).
A district court’s decision to dismiss a petition for a writ of habeas corpus is
reviewed de novo. Drew v. Dep’t of Corr., 297 F.3d 1278, 1283 (11th Cir. 2002).
We also review de novo the district court’s decision to deny equitable tolling.
Id.
However, we review a district court’s determination of the relevant facts,
including those related to a petitioner’s diligence, for clear error.
Id. “This
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standard requires us to affirm a district court’s findings of fact unless the record
lacks substantial evidence to support that determination.”
Id. (quotation omitted).
Finally, we review a habeas court’s decision as to “whether to conduct an
evidentiary hearing on an equitable tolling claim for an abuse of discretion.”
Id.
The AEDPA imposes a one-year statute of limitations for the filing a § 2254
habeas petition, that begins to run following one of four events, including “the
date on which the judgment became final . . . .” 28 U.S.C. § 2244(d)(1). In rare
circumstances, “[e]quitable tolling can be applied to prevent the application of the
AEDPA’s statutory deadline . . . .” Hunter v. Ferrell,
587 F.3d 1304, 1308 (11th
Cir. 2009) (quoting Helton v. Sec’y for Dep’t of Corr.,
259 F.3d 1310, 1312 (11th
Cir. 2001)). Equitable tolling is “an extraordinary remedy” that is reserved for
“exceptional circumstances” and “typically applied sparingly.”
Id. (quotation
omitted). We have characterized the equitable tolling standard as a two-part test,
stating that “equitable tolling is available only if a petitioner establishes both
extraordinary circumstances and due diligence.” Diaz v. Sec’y for Dep’t of Corr.,
362 F.3d 698, 702 (11th Cir. 2004) (expressly refusing to consider Diaz’s
extraordinary-circumstances argument in light of his unexplained 532-day delay in
filing his § 2254 petition) (emphasis in original).
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“Attorney negligence, even gross negligence, does not warrant equitable
tolling.” Melson v. Allen, 548 F.3d 993, 1001 (11th Cir. 2008), cert. denied,
130
S. Ct. 254 (2009). “There must be an allegation and proof of bad faith, dishonesty,
divided loyalty, mental impairment or so forth on the lawyer’s part in order for a
court to find there was such egregious attorney misconduct that a petitioner is
entitled to equitable tolling.”
Id. (quotation omitted). An attorney’s
miscalculation of the limitations period or misinterpretation of § 2244(d)(1) does
not constitute an extraordinary circumstance sufficient to warrant equitable tolling.
Steed v. Head,
219 F.3d 1298, 1300 (11th Cir. 2000). The petitioner bears the
burden of showing that equitable tolling is warranted.
Drew, 297 F.3d at 1286-87.
Only in two situations have we held that equitable tolling applied. In
Spottsville v. Terry, 476 F.3d 1241, 1245-46 (11th Cir. 2007), we held that the late
filing of the petitioner’s application for a certificate of probable cause (“CPC”)
with the Georgia Supreme Court was not the petitioner’s fault, but rather due to
the incorrect filing instructions given to him by a Georgia superior court, and thus
he was entitled to equitable tolling for the time when his application for a CPC
was in the wrong court. In Knight v. Schofield,
292 F.3d 709, 710-11 (11th Cir.
2002), we applied equitable tolling when Knight received an assurance from the
Georgia Supreme Court clerk that he would be notified when the court ruled on his
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state postconviction motion, but the court failed to notify Knight when it ruled,
and the AEDPA’s one-year limitation period lapsed while he was waiting.
As an initial matter, appellate review of Perkins’s claims is limited to the
issue of whether Perkins is entitled to equitable tolling of the one year statute of
limitations. Murray, 145 F.3d at 1250-51; (R2-35). Thus, we will not consider
Perkins’s argument regarding statutory tolling because that issue is beyond the
scope of this appeal. See
Murray, 145 F.3d at 1250-51. Likewise, we will not
consider Perkins’s constitutional claims because those too are beyond the scope of
this appeal.
Murray, 145 F.3d at 1250-51.
Further, a number of Perkins’s arguments are not adequately briefed on
appeal. Perkins first presents a conclusory claim that he is disabled, but fails to
specify the nature of his disability or how this alleged disability prevented him
from timely filing his petition. Therefore, any claim as to Perkins’s disability is
deemed abandoned. See Jones, 436 F.3d at 1303. Perkins further argues that the
state caused a delay in the exhaustion of his state remedies, but does not clarify
how the state caused this alleged delay or how such a delay resulted in his failure
to timely file his § 2254 petition. Therefore, this claim as to state-caused delay
also is deemed abandoned. See
Jones, 436 F.3d at 1303. Finally, Perkins’s
contention that the state failed to present the appropriate records to him or to the
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district court is conclusory because he fails to specify what records should have
been produced and does not argue how those records would have shown his
entitlement to equitable tolling. Therefore, this claim too is deemed abandoned.
See Jones, 436 F.3d at 1303.
On the merits of his equitable tolling claim, because Perkins has not shown
“both extraordinary circumstances and due diligence,” he has failed to establish
entitlement to equitable tolling. Diaz, 362 F.3d at 701. Even assuming that
Perkins’s filing of his letters in state court and his attempt to seek the assistance of
his attorney in filing a direct appeal constituted due diligence, Perkins has not
shown that extraordinary circumstances beyond his control prevented him from
filing his habeas petition in a timely manner. Perkins blames his attorney for his
failure to timely file a § 2254 petition, but none of Perkins’s assertions of gross
attorney misconduct, even if true, rise to the level of egregious misconduct
warranting equitable tolling. See
Melson, 548 F.3d at 1001. The fact that
Perkins’s attorney did not respond to his alleged request to file a plea withdrawal
motion or a direct appeal is insufficient to equitably toll the limitations period.
See
id. Moreover, Perkins has not alleged that he was affirmatively misled by
either a Georgia state court or a federal court regarding how to timely file a state
tolling motion or a federal habeas petition. See
Spottsville, 476 F.3d at 1245-46;
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Knight, 292 F.3d at 711; See R1-1; R2-29. On this record, no extraordinary
circumstances existed to prevent Perkins from timely filing his habeas petition.
Finally, Perkins’s argument that he should have received an evidentiary hearing is
without basis. Even if Perkins could demonstrate that his attorney committed
misconduct or that his letters seeking to withdraw his guilty plea constituted
motions that would justify equitable tolling, he has not offered any reason to
believe that an evidentiary hearing would help him prove that extraordinary
circumstances prevented him from timely filing his § 2254 petition. See
Drew,
297 F.3d at 1292. Therefore, the district court did not abuse its discretion in
deciding not to hold a hearing.
III. CONCLUSION
Because Perkins has failed to demonstrate that the district court erred in
determining that he had not shown either that he was diligent or that extraordinary
circumstances prevented the timely filing of his habeas petition, his claim of
equitable tolling fails. Accordingly, we AFFIRM.
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