Dwan Doe v. United States , 469 F. App'x 798 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10754 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 6, 2012
________________________ JOHN LEY
CLERK
D.C. Docket Nos. 0:11-cv-60006-WPD; 0:07-CR-60127-WPD-13
DWAN DOE,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 6, 2012)
Before HULL, MARCUS and BLACK, Circuit Judges.
PER CURIAM:
Dwan Doe, a federal prisoner proceeding pro se, appeals the district court’s
dismissal of his motion to vacate his sentence under 28 U.S.C. § 2255 as time-barred.
The district court granted a certificate of appealability (“COA”) on the time-bar issue.
Doe does not dispute that he filed his § 2255 motion outside the one-year statute of
limitations established by the Antiterrorism and Effective Death Penalty Act of 1996,
Pub.L.No. 104-132, 110 Stat. 1214 (1996). Based on a liberal construction of his
brief on appeal, however, he argues: (1) that he is entitled to equitable tolling because
his counsel failed to file a direct appeal upon his request, he exercised due diligence
in pursuing his rights, and he has a low IQ; and (2) the merits of his underlying
claims. After thorough review, we affirm.
We review de novo the legal issue of whether Doe’s § 2255 motion is
time-barred. Murphy v. United States, 634 F.3d 1303, 1306 (11th Cir. 2011). We
review a district court’s denial of equitable tolling de novo and its factual
determinations for clear error. Drew v. Dep’t of Corr., 297 F.3d 1278, 1283 (11th
Cir. 202). A prisoner’s diligence is a factual finding that we review for clear error.
Arthur v. Allen, 452 F.3d 1234, 1243 (11th Cir. 2006). We liberally construe pro se
filings. Rhode v. United States, 583 F.3d 1289, 1291 (11th Cir. 2009).
Our review of a prisoner’s § 2255 motion is limited to the issues specified in
the COA. Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998). Also,
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we generally decline to consider arguments raised for the first time on appeal. Peek-
A-Boo Lounge of Bradenton, Inc. v. Manatee Cnty., Fla., 630 F.3d 1346, 1358 (11th
Cir.2011).
A prisoner whose conviction is final but believes that his sentence was imposed
in violation of the Constitution or federal law may seek relief from his conviction and
sentence by filing a motion under 28 U.S.C. § 2255 with the court that imposed his
sentence. 28 U.S.C. § 2255(a). He must file such a motion within one year of the
latest of four triggering dates, including the date on which the judgment of conviction
becomes final. Id. § 2255(f). A judgment becomes final when the time for seeking
review of that judgment expires. Murphy, 634 F.3d at 1307.
If a prisoner attempts to file outside this limitations period, a district court may
still review his motion if he is entitled to equitable tolling. San Martin v. McNeill,
633 F.3d 1257, 1267 (11th Cir.), cert. denied, 132 S.Ct. 158 (2011). Equitable tolling
is available if the prisoner demonstrates that (1) he has pursued his rights diligently
and (2) an extraordinary circumstance prevented him from timely exercising his
rights. Holland v. Florida, 560 U.S. ___, 130 S.Ct. 2549, 2562 (2010). The Supreme
Court has clarified that the prisoner must pursue his rights with “reasonable diligence,
not maximum feasible diligence.” Id. at 2565 (quotations and citations omitted). A
prisoner contending that his mental impairments justify equitable tolling must
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establish a causal connection between those impairments and his ability to file a
timely petition. Lawrence v. Florida, 421 F.3d 1221, 1226-27 (11th Cir. 2005). The
prisoner bears the burden of demonstrating that extraordinary circumstances
prevented the timely filing of a § 2255 motion such that equitable tolling applies, and
mere conclusory allegations are not sufficient to raise the issue. San Martin, 633 F.3d
at 1267-68. Equitable tolling is a rare and extraordinary remedy. Id. at 1271.
As an initial matter, we liberally construe Doe’s pro se brief on appeal to argue
that equitable tolling renders his motion timely because he contends that his counsel
failed to file a notice of appeal despite his requests, and he argues that he exercised
“due diligence and reasonable diligence” in filing his § 2255 motion after he
discovered that he had a right to appeal. However, because the COA is limited to the
question whether Doe’s motion was time-barred, we do not address the merits of
Doe’s claims argued in his brief. Murray, 145 F.3d at 1250-51.
As for the timeliness of Doe’s § 2255 motion, he does not assert on appeal that
the district court erred in applying § 2255(f)(1), the date his conviction became final,
as the triggering date for the applicable statute of limitations. The period in which
Doe could file a direct appeal expired ten days after the district court imposed
sentence on December 6, 2007. Fed.R.App.P. 4(b)(1) (2007). Because the tenth day,
December 16, 2007, was a Sunday, the final day on which Doe could have filed a
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direct appeal was Monday, December 17, 2007. Fed.R.Civ.P. 6(a)(1). After one year,
his time to file a motion to vacate under 28 U.S.C. § 2255 expired on December 17,
2008. 28 U.S.C. § 2255(f)(1). He did not file his present § 2255 motion until, at the
earliest, December 24, 2010, when he signed it and placed it in the prison mail
system. See Fed.R.App.P. 4(c); Houston v. Lack, 487 U.S. 266, 275-76 (1988)
(explaining that a prisoner’s filing is considered filed as of the date when he delivered
it to prison authorities for forwarding to the court clerk). Thus, Doe’s motion was
time-barred unless he could demonstrate that he was entitled to equitable tolling.
Doe’s brief sets forth two potential bases for equitable tolling: his counsel’s
failure to file a direct appeal and his own mental limitations. Although Doe contends
that his counsel failed to file a notice of appeal upon request after sentencing, he has
not explained below or on appeal when he learned of counsel’s failure or why he
waited so long to file his § 2255 motion. He merely says that, while in prison, he
learned about his right to have counsel file a direct appeal, but he does not
demonstrate how he exercised due diligence in pursuing his rights or why the district
court clearly erred in concluding that he failed to exercise due diligence.
Accordingly, he has not satisfied his burden of showing that equitable tolling applies
on this basis.
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Further, although he claims that he has a low IQ, he has raised this argument
for the first time on appeal, and we do not consider it. Peek-A-Boo, 630 F.3d at 1358.
But even if we were to consider the argument, Doe does not explain how this
prevented him from exercising due diligence or otherwise allege a causal connection
between his alleged mental impairment and his failure to file a timely § 2255 motion.
Lawrence, 421 F.3d at 1226-27. Thus, Doe has not satisfied his burden to show that
equitable tolling applies on this basis either.
For these reasons, the district court did not clearly err in concluding that Doe
failed to show that he exercised due diligence. Nor did it abuse its discretion in
declining to hold an evidentiary hearing to determine whether he told his counsel to
appeal his sentence. Accordingly, we affirm.
AFFIRMED.
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