Eligio Gomez-Muniz v. Secretary, Department of Corrections , 694 F. App'x 701 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15577
Non-Argument Calendar
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D.C. Docket No. 8:14-cv-01975-VMC-AEP
ELIGIO GOMEZ-MUNIZ,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 7, 2017)
Before TJOFLAT, HULL and JORDAN, Circuit Judges.
PER CURIAM:
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Eligio Gomez-Muniz (“Muniz”), a state prisoner proceeding pro se, appeals
the district court’s dismissal of his 28 U.S.C. § 2254 petition for habeas corpus as
barred by the one-year statute of limitations of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). The district court concluded that Muniz
was not entitled to equitable tolling of the AEDPA’s statute of limitations despite
his allegations that his attorney abandoned him. On appeal, Muniz argues that he
was entitled to equitable tolling or that he was, at least, entitled to an evidentiary
hearing on the issues of his diligence and his attorney’s abandonment. We find
that the district court abused its discretion in dismissing Muniz’s petition without
an evidentiary hearing, and vacate and remand for the district court to conduct an
evidentiary hearing on Muniz’s potential entitlement to equitable tolling based on
counsel’s alleged abandonment.
We review de novo the district court’s dismissal of a § 2254 petition as
untimely. Pugh v. Smith, 465 F.3d 1295, 1298 (11th Cir. 2006). A § 2254 petition
is governed by a one-year statute of limitations period that begins to run on the
latest of four triggering events, including the date on which the challenged
judgment became final by the conclusion of direct review or the expiration of the
time for seeking direct review. 28 U.S.C. § 2244(d)(1), (d)(1)(A). A Florida
prisoner has 30 days from the day a judgment was entered to seek direct review.
Fla. R. App. P. 9.110(b). State prisoners toll the federal limitations period while
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properly filed state postconviction actions are pending. 28 U.S.C. § 2244(d)(2).
“A state-court petition . . . that is filed following the expiration of the limitations
period cannot toll that period because there is no period remaining to be tolled.”
Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000).
We review de novo a district court’s denial of equitable tolling, but review
for abuse of discretion the denial of an evidentiary hearing on equitable tolling.
Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). If the
facts alleged in the habeas petition are insufficient to make the petition timely, the
district court did not abuse its discretion. Id. The petitioner carries the burden to
establish the need for an evidentiary hearing, which requires the habeas petition to
allege specific facts that, if true, would warrant relief. Id. Conclusory allegations
are not enough to warrant a hearing. Id. at 1061.
A petitioner is entitled to equitable tolling where he 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 v. Florida, 560 U.S. 631,
649 (2010) (quotation omitted). While “a garden variety claim of excusable
neglect, such as a simple miscalculation that leads a lawyer to miss a filing
deadline, does not warrant equitable tolling,” the statute of limitations may be
tolled for “far more serious instances of attorney misconduct.” Id. at 651–52
(citations and quotations omitted).
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In the context of procedural default, the Supreme Court emphasized the
distinction between mere attorney negligence and attorney abandonment. Maples
v. Thomas, 565 U.S. 266, 281–83 (2012). In Maples, the Supreme Court held that
the petitioner demonstrated cause for his failure to comply with a state procedural
rule that resulted in his procedural default because his counsel stopped representing
him without leave of court and without informing him, and he held no reason to
believe that his attorney was no longer representing him. Id. at 270–71, 288–89.
Here, Muniz’s § 2254 petition was filed outside the AEDPA’s statute of
limitations because it was filed more than one year after his conviction became
final by the conclusion of direct review or the expiration of the time for seeking
direct review. 28 U.S.C. § 2244(d)(1), (d)(1)(A). However, because Muniz
alleged facts in his petition and pleadings that, if true, would warrant relief based
on attorney abandonment, he was entitled to an evidentiary hearing. See Holland,
560 U.S. at 649, 651–52; Chavez, 647 F.3d at 1060–61. In his memorandum in
support of his § 2254 petition, Muniz alleged, among other things, that his attorney
failed to communicate with him and failed to know and abide by the law, which
prevented Muniz from filing a federal habeas petition. He also alleged his attorney
sent correspondence to the wrong address. He argues that he believed his attorney
was representing him, and had no reason to believe his attorney was not working
on his case until after his time limit already expired. Furthermore, he was
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particularly dependent upon his attorney because he spoke no English and could
not access legal resources in his native language. In his unnotarized affidavit, he
alleged that his brother attempted to contact his attorney and was told in October
2012 that his attorney would file an amended motion within a few months. If
Muniz could provide evidence at a hearing showing that his attorney failed to
notify him that he was withdrawing from the case and failed to communicate with
Muniz until after the statute of limitations already expired—especially if that
evidence showed Muniz continued to seek updates from his attorney throughout
the tolling period—then Muniz would likely meet the standard for diligence and an
extraordinary circumstance that would trigger equitable tolling. Thus, the district
court abused its discretion by dismissing Muniz’s § 2254 petition as untimely
without holding an evidentiary hearing on the issue of his diligence and his
attorney’s alleged abandonment. Accordingly, we remand for the district court to
conduct an evidentiary hearing on Muniz’s entitlement to equitable tolling.
REMANDED WITH INSTRUCTIONS.
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