Jerry Miller v. State of Florida , 307 F. App'x 366 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
------------------------------------------- ELEVENTH CIRCUIT
JAN 13, 2009
No. 07-14790
THOMAS K. KAHN
Non-Argument Calendar
CLERK
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D.C. Docket No. 07-14004-CV-KMM
JERRY MILLER,
Petitioner-Appellant,
versus
STATE OF FLORIDA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 13, 2009)
Before EDMONDSON, Chief Judge, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Pro se Appellant Jerry Miller (“Appellant”) appeals the dismissal of his
habeas corpus petition as time-barred by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). The
district court did not err by denying equitable tolling; we affirm.
In 1996, a jury convicted Appellant of attempted second-degree murder of a
correctional officer; aggravated battery involving great bodily harm to a law-
enforcement officer; aggravated battery of a law-enforcement officer with a deadly
weapon; and battery of a law-enforcement officer. A habitual felony offender,
Appellant was sentenced to two terms of life imprisonment, running concurrent
with sentences for ten and thirty years.
Appellant’s conviction became final on 3 November 1998: ninety days after
the conclusion of his direct appeal. Accordingly, the one-year statute of limitations
for filing timely a federal habeas petition expired on 4 November 1999. See 28
U.S.C. § 2244(d)(1). Appellant did not commence state post-conviction relief
proceedings until 7 August 2000, when he filed a Rule 3.850 motion with the state
of Florida.1 He then filed a 28 U.S.C. § 2254 petition for writ of habeas corpus on
1
Had Appellant filed a 3.850 petition during AEDPA’s one-year statute of limitations,
that filing would have tolled the one-year period. The statute of limitations was not tolled,
however, because Appellant filed the 3.850 petition more than one year after the conviction
became final.
2
21 December 2006. On 28 January 2008, this Court granted Appellant’s
application for a Certificate of Appealability on whether Appellant was entitled to
equitable tolling because he was denied access to the law library due to his “close
management” status in prison.2
Appellant maintains that the district court should have equitably tolled the
limitation period because his close-management status prevented him from
visiting the prison library and from consulting with prison law clerks. He also
argues that his lack of education and inability to access legal assistance prevented
him from timely filing for post-conviction relief and that those circumstances
justify equitable tolling.
The district court determined that Appellant was not entitled to equitable
tolling based on close-management status; even restricted access to a law library,
lock-downs, and solitary confinement do not qualify as ordinary circumstances
warranting equitable tolling. See, e.g., Akins v. United States, 204 F.3d 1086,
1089–90 (11th Cir. 2000). Moreover, Appellant’s close-management status was
the result of his own violent acts towards prison officials -- not unlawful action by
the state. In addition, Appellant was not entitled to equitable tolling because of his
2
Our review is limited to the issues specified in the Certificate of Appealability. See
Murray v. United States, 145 F.3d 1249, 1250–51 (1998). We will not, therefore, examine issues
beyond the COA.
3
lack of legal training, see United States v. Montano, 398 F.3d 1276, 1280 n.5
(11th Cir. 2005) (even alleged language difficulties did not constitute
extraordinary circumstances for equitable tolling). Neither was tolling justified by
an inability to obtain appointed counsel. See Coleman v. Thompson, 111 S. Ct.
2546, 2566 (1991) (no constitutional right to attorney in state post-conviction
proceedings).
We review a district court’s denial of equitable tolling de novo. Lawrence v.
Florida, 421 F.3d 1221, 1224 (11th Cir. 2005). Because the district court’s
determination of relevant facts will only be reversed if clearly erroneous, Dorsey
v. Chapman, 262 F.3d 1181, 1185 (11th Cir. 2001), we affirm the district court’s
findings of fact unless “the record lacks substantial evidence to support that
determination.” Drew v. Dep’t of Corr., 297 F.3d 1278, 1283 (11th Cir. 2002)
(internal quotations omitted).
To obtain equitable tolling -- “an extraordinary remedy that must be applied
sparingly” -- an Appellant carries the burden of showing that he was diligent in his
efforts to file timely and that extraordinary and unavoidable circumstances
prevented the Appellant from filing timely. See Holland v. Florida, 539 F.3d 1334,
1338 (11th Cir. 2008). “A truly extreme case is required.” Id.4
Appellant does not demonstrate extraordinary circumstances or diligence in
his effort to obtain relief. The state contends that Appellant was not denied access
to the law library and that he could and did communicate about his case with
people outside the prison -- including many lawyers.3 Inmate law-clerks are by
statute available to provide research assistance to inmates, like Appellant, who are
under close-management status. See Fla. Admin. Code Ann. R. 33-501.301(3)(e)
(providing inmate law-clerk services to disabled and illiterate inmates upon
request). Appellant offers no record evidence rebutting the state contentions; his
bare assertions regarding lack of library access are both conclusory and contrary to
state statute. See Drew, 297 F.3d at 1292–93 (denying evidentiary hearing on
equitable tolling because Petitioner’s allegations were conclusory). Appellant does
not demonstrate extraordinary circumstances that warrant equitable tolling.
Appellant also fails to carry the burden of proving the diligence required for
this court to grant equitable tolling. Filing a Rule 3.850 motion only two days
before Florida’s statute of limitations expired does not demonstrate the diligence
necessary for equitable tolling. Neither does the 642 days that elapsed between
Appellant’s conviction becoming final on 3 November 1998 and the Rule 3.850
3
Thus, Appellant -- even when under close-management status -- had access to legal
sources both inside and outside of prison.
5
petition he filed on 7 August 2000. Neither did Appellant exhibit diligence in
filing a federal habeas petition.
Appellant demonstrates neither diligence nor extraordinary circumstances.
He is not entitled to the extraordinary remedy of equitable tolling. Accordingly,
we affirm the district court’s dismissal of Appellant’s petition as untimely.
AFFIRMED.
6