Edward Fox v. Sec. Walter A. McNeil , 373 F. App'x 32 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 8, 2010
No. 09-12897 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 09-14038-CV-DLG
EDWARD FOX,
Petitioner-Appellant,
versus
SECRETARY WALTER A. MCNEIL,
Florida Department of Corrections,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 8, 2010)
Before EDMONDSON, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Edward Fox, a Florida state prisoner proceeding pro se, appeals the district
court’s denial of his 28 U.S.C. § 2254 petition for writ of federal habeas corpus as
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. See 28
U.S.C. § 2244(d). The district court granted a certificate of appealability (“COA”)
as to whether equitable tolling should apply because Fox alleged he was mentally
incompetent to file his petition in a timely manner. Upon review of the record and
the parties’ briefs, we affirm.
We review de novo the district court’s determination that a habeas petition is
time-barred under 28 U.S.C. § 2244(d). Steed v. Head, 219 F.3d 1298, 1300 (11th
Cir. 2000). A district court’s legal decision that equitable tolling does not apply is
reviewed de novo. Id. A district court’s factual findings are reviewed for clear
error. Lawrence v. Florida, 421 F.3d 1221, 1224–25 (11th Cir. 2005). We
liberally construe pro se pleadings. Sibley v. Culliver, 377 F.3d 1196, 1200–01
(11th Cir. 2004).
Fox advances two arguments. First, Fox argues that he was mentally
incompetent to stand trial, and that the state court erred by not conducting a
competency hearing. He contends that this error resulted in a violation of his
federal due process rights. Second, Fox asserts that he is entitled to an equitable
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tolling defense because he remained mentally incompetent to file any subsequent
post-conviction petitions in a timely fashion.
A. Fox’s State Competency Hearing Argument
Our review is limited to the issues specified in the COA. Murray v. United
States, 145 F.3d 1249, 1250–51 (11th Cir. 1998); see 28 U.S.C. § 2253(c)(3).1 The
district court’s COA was granted to address the sole issue of equitable tolling.
Therefore, we find that Fox’s complaint regarding state law procedures at trial is
not a cognizable claim within the scope of the limited review specified in the COA.
B. Fox’s Equitable Tolling Argument
The AEDPA imposes a one-year statute of limitations for petitioners in state
custody filing a § 2254 writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The statute
of limitations begins to run following the latest of four possible events, including
the date on which judgment becomes final upon direct review. 28 U.S.C.
§ 2244(d)(1)(A). However, § 2244(d) is a statute of limitations, not a
jurisdictional bar, and therefore the time limit may be equitably tolled “because of
extraordinary circumstances that are both beyond [the petitioner’s] control and
unavoidable even with diligence.” Steed, 219 F.3d at 1300 (quotation and citation
omitted). The appellant bears the burden of establishing equitable tolling. Outler
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28 U.S.C. § 2253(c)(3) explains, inter alia, that the COA must specifically indicate the
issues for review.
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v. United States, 485 F.3d 1273, 1280 (11th Cir. 2007) (per curiam). To discharge
his burden, he must demonstrate: (1) that he has been pursuing his rights diligently
and (2) that some extraordinary circumstance stood in his way and prevented
timely filing.” Johnson v. Fla. Dep’t. of Corr., 513 F.3d 1328, 1333 (11th Cir.
2008), cert. denied, 129 S. Ct. 348 (2008) (quotation and citation omitted).
In Lawrence, we addressed whether a petitioner’s alleged mental
incompetence could serve as a basis for equitable tolling. 421 F.3d at 1226–27.
We held that an allegation of mental incompetence, without a showing of a causal
connection between the incompetence and the failure to file a timely application,
did not justify equitable tolling. Id.Fox did not demonstrate that he was mentally incompetent to file a federal
habeas corpus petition in a timely manner. The only document in the record that
addresses Fox’s mental status is an evaluation conducted by Dr. Steven Edney,
who opined that Fox was competent to stand trial in state court. Further, Fox was
able to file several pro se motions in state court for post-conviction relief, and
ultimately filed the present petition. Moreover, Fox has not pointed to any
evidence which indicates that equitable tolling is appropriate because of
“extraordinary circumstances.” Fox has also failed to establish a causal link
between his claims of mental incompetence and the untimely filing of his federal
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habeas corpus petition. Accordingly, we find that Fox has not met his burden to
prove that equitable tolling is appropriate, and we affirm the decision of the district
court.
AFFIRMED.
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