[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF
________________________ APPEALS
ELEVENTH CIRCUIT
FEBRUARY 7, 2012
No. 09-10782 JOHN LEY
________________________
D. C. Docket No. 07-00860-CV-ODE
MICHAEL BELL,
Petitioner-Appellant,
versus
FLORIDA ATTORNEY GENERAL,
SECRETARY DEPARTMENT OF CORRECTIONS,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 7, 2012)
Before TJOFLAT, WILSON, and BLACK, Circuit Judges.
PER CURIAM:
Michael Bell is on Florida’s death row after being convicted of two counts
of first-degree murder. He appeals the district court’s dismissal of his federal
habeas petition on timeliness grounds.1 On March 19, 2009, the district court
issued a Certificate of Appealability (COA) on each of the following grounds: (1)
whether Bell is entitled to tolling of the Anti-Terrorism and Effective Death
Penalty Act of 1996 (AEDPA) one-year statute of limitations because of late
appointment of collateral counsel; (2) whether Bell’s motion to correct an illegal
sentence entitles him to additional tolled time; (3) whether the statute of limitations
should run from the time that collateral counsel was appointed because Bell was
able to discover the factual predicate of his claims at that time; and (4) whether
Bell is entitled to equitable tolling of the one-year statute of limitations.
After oral argument we issued an opinion requesting that the district court
“specify whether jurists of reason would find it debatable that Bell’s petition states
a valid claim of the denial of a constitutional right.” Bell v. Fla. Att’y Gen., 614
F.3d 1230, 1232 (11th Cir. 2010). On January 7, 2011, the district court ruled that
jurists of reason could find it debatable that Bell’s petition stated a valid claim of
the denial of a constitutional right and issued a COA on each of the same grounds.
After thorough review of Bell’s claims, we affirm the district court.
1
Bell proceeds pro se; therefore, we liberally construe his filings. See Hughes v. Lott,
350 F.3d 1157, 1160 (11th Cir. 2003).
2
We review a district court’s dismissal of a petition for a writ of habeas
corpus and a district court’s decision on equitable tolling de novo. San Martin v.
McNeil, 633 F.3d 1257, 1265 (11th Cir.), cert. denied, San Martin v. Tucker, 132
S. Ct. 158 (2011). The petitioner has the burden of proof to show that equitable
tolling is required in any particular case. Id. at 1267. “[W]e review the district
court’s determinations of the relevant facts for clear error.” Id. at 1265 (citation
omitted). Thus, we “affirm a district court’s findings of fact unless the record lacks
substantial evidence to support them.” Id. (citation and quotation marks omitted).
I.
In June 1995, Michael Bell was convicted of two counts of first-degree
murder.2 On July 17, 1997, the Florida Supreme Court upheld Bell’s convictions
and death sentences. Bell v. State, 699 So. 2d 674, 679 (Fla. 1997) (per curiam).
Bell then timely filed a petition for a writ of certiorari in the Supreme Court of the
United States, which was denied on February 23, 1998. Bell v. Florida, 522 U.S.
1123, 118 S. Ct. 1067 (1998). The AEDPA one-year statute of limitations for the
filing of a § 2254 habeas corpus petition began to run on February 24, 1998. See
28 U.S.C. § 2244(d).
2
The Florida Supreme Court fully set forth the facts of Bell’s case. See Bell v. State, 699
So. 2d 674 (Fla. 1997) (per curiam).
3
On April 8, 1998, Bell filed a pro se motion for appointment of counsel in
state court. Due to changes in Florida’s collateral-counsel appointment system and
a large backlog of inmates without appointed counsel, Bell did not receive
collateral counsel until September 3, 1998.
While Bell was awaiting appointment of counsel, he filed a pro se motion to
correct an illegal sentence pursuant to Florida Rule of Criminal Procedure
3.800(a). Bell submitted his motion to the corrections officer for mailing on April
28, 1998. On June 12, 1998 the trial court denied Bell’s motion. In its order the
court cautioned Bell to “file any future motions through counsel, or the motions
will be stricken” since “he is or should be currently represented by [counsel].” Bell
v. Florida, No. 3:07-860 (Fla. Cir. Ct. June 12, 1998) (order denying defendant’s
motion to correct an illegal sentence) (June 12 Order). Bell did not appeal this
order before the time for appeal expired on July 14, 1998. Assuming that the
3.800(a) motion tolled the one-year statute of limitations,3 the AEDPA statute of
limitations tolled from April 28, 1998 to July 14, 1998.4
On September 3, 1998, an attorney was appointed to represent Bell. The
3
The State of Florida, for the purpose of its summary judgment motion, did not contest
that Bell’s 3.800(a) motion to correct an illegal sentence tolled AEDPA.
4
The district court held and the State agrees that the statute of limitations was tolled
during the time that Bell could have appealed the June 12 Order. See Cramer v. Sec’y, Dep’t of
Corr., 461 F.3d 1380, 1383 (11th Cir. 2006) (per curiam).
4
attorney withdrew on October 12, 1998 and was replaced by another attorney,
Jeanine Sasser, on the same day. Despite being represented by counsel, Bell filed a
pro se motion for full disclosure on March 19, 1999. The state court struck the
motion on March 29, 1999 because Bell filed it pro se while he was represented by
Sasser.
Finally, on June 1, 1999, Bell filed, through counsel, a motion for
postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851. The
state court denied postconviction relief in September 2007.
On September 10, 2007, Bell filed a pro se § 2254 habeas corpus petition.
Because Bell filed his postconviction motion on June 1, 1999—seventeen days
after AEDPA’s one-year statute of limitations expired—the motion did not toll
AEDPA’s statute of limitations. Therefore, the federal district court dismissed his
petition without a hearing on the merits. To warrant reversal of the dismissal of the
petition, Bell must persuade this court that the AEDPA one-year statute of
limitations should be tolled.
II.
The district court issued the first COA on whether Bell is entitled to tolling
under AEDPA for late appointment of collateral counsel. Bell argues that the
statute of limitations for his federal habeas corpus petition should begin on October
5
12, 1998, the date that Sasser was appointed to represent him, because delay in
appointment of counsel was an impediment to filing under 28 U.S.C.
§ 2244(d)(1)(B).5
We have already held that a delay in the appointment of collateral counsel is
not an impediment to filing within the purview of § 2244(d)(1)(B), because
prisoners in capital cases have no constitutional right to postconviction counsel.
Johnson v. Fla. Dep’t of Corr., 513 F.3d 1328, 1331 (11th Cir. 2008) (citing
Lawrence v. Florida, 549 U.S. 327, 335, 127 S. Ct. 1079, 1085 (2007)). Therefore,
the district court correctly concluded that Bell’s time to file his federal habeas
corpus petition should not be tolled for late appointment of collateral counsel.
III.
The second COA the district court issued asks whether Bell’s motion to
correct an illegal sentence entitles him to additional tolled time. Bell argues that
his motion to correct an illegal sentence tolled AEDPA’s statute of limitations
under the doctrine of judicial estoppel. He also argues that he is entitled to an
additional ninety days of tolled time because he could have sought Supreme Court
5
Section 2244(d)(1)(B) states that the one-year statute of limitations “shall run from . . .
the date on which the impediment to filing an application created by State action in violation of
the Constitution or laws of the United States is removed, if the applicant was prevented from
filing by such State action.”
6
review of the denial of his motion.6
Bell argues that the State is judicially estopped from arguing that the statute
of limitations expired on May 7, 1999 because the State argued that the statute of
limitations expired on May 31, 1999 in proceedings related to Bell’s state
postconviction petition before the Florida Supreme Court. After reviewing the
briefs that the State submitted to the Florida Supreme Court, it is clear that the
State only argued that Bell had until May 31, 1999 to file his 3.851 motion. The
State did not contend that AEDPA’s statute of limitations ran on May 31, 1999, but
only that the statute of limitations to file a 3.851 motion ran on May 31, 1999.
Thus, this argument is misplaced.
Next, Bell argues that he is entitled to an additional ninety days of tolled
time because he could have sought Supreme Court review of his motion.
However, the Supreme Court rejected this argument in Lawrence. 549 U.S. at
333–34, 127 S. Ct. at 1084 (holding that the filing of a petition for certiorari in the
Supreme Court does not toll the statute of limitations under 28 U.S.C.
§ 2244(d)(2)).
6
In the district court Bell argued that he was entitled to tolled time because of the
mailbox rule. The district court agreed and the State did not appeal the issue. Therefore, Bell’s
motion began tolling AEDPA’s statute of limitations on April 28, 1998, the day he gave his
motion to the corrections officer, and not May 4, 1998, the day it was filed in court. See Cramer
v. Sec’y, Dep’t of Corr., 461 F.3d 1380, 1382 n.1 (11th Cir. 2006) (per curiam).
7
IV.
The third COA asks whether the statute of limitations should run from the
time that collateral counsel was appointed on the grounds that Bell was able to
discover the factual predicate of his claims at this time. See § 2244(d)(1)(D). Bell
argues that he could not investigate his claims until collateral counsel was
appointed. The district court correctly found that Bell did not furnish an affidavit
or other evidence of any late-discovered facts; therefore, Bell did not point to any
claims or evidence that he could not discover prior to the appointment of collateral
counsel. Bell is not entitled to tolling under § 2244(d)(1)(D).
V.
Finally, the district court issued a COA on whether Bell is entitled to
equitable tolling of the AEDPA one-year statute of limitations. In Holland v.
Florida, the Supreme Court held that § 2244(d) is “subject to equitable tolling in
appropriate cases.” 560 U.S. — , 130 S. Ct. 2549, 2560 (2010) (citations omitted).
A petitioner is entitled to equitable tolling only if 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.” Id. at 2562 (citation and quotation marks
omitted). In stating this standard, the Court emphasized that courts should be
flexible and avoid mechanical rules and overly rigid standards. See id. at 2563.
8
We further expanded on Holland in San Martin. There the petitioner
claimed that a two-week delay in receiving actual notice of the Supreme Court
decision triggering the commencement of the one-year statute of limitations was an
extraordinary circumstance requiring equitable tolling. 633 F.3d at 1261. We
rejected this argument and elaborated that the petitioner could not show a “causal
connection between the alleged extraordinary circumstances and the late filing of
the petition.” Id. at 1267. Therefore, we found that equitable tolling was not
appropriate.
The exercise of a court’s equity powers “must be made on a case-by-case
basis.” Holland, 130 S. Ct. at 2563. Here, Bell’s petition presents a different set of
circumstances. In the June 12 Order, the court cautioned Bell to “file any future
motions through counsel, or the motions will be stricken.” However, the court
incorrectly assumed that Bell was represented by counsel at the time the order was
issued; instead counsel was not appointed until September 3, 1998.
First we note that this court has explained “[i]t is unreasonable to expect a
pro se litigant to second-guess or disregard an instruction in a written order of a
court.” Spottsville v. Terry, 476 F.3d 1241, 1245 (11th Cir. 2007) (holding that
equitable tolling was permissible when state court misled the petitioner). After the
June 12 Order, Bell believed that he could not file any pro se motions with the
9
court. The record before us confirms Bell’s reliance on the information provided
in the court’s order. After the June 12 Order, Bell did not file another pro se
motion until his motion for full disclosure on March 19, 1999, and the state court
promptly struck the motion because Bell filed the motion pro se while being
represented by counsel. Although the district court found that Bell had the
knowledge to file pro se motions, the issue here is not whether Bell had the
knowledge to file pro se motions, but whether Bell followed the court order to his
detriment. See Spottsville, 476 F.3d at 1245–46 (holding that even if petitioner
was “an experienced pro se litigant who could have either avoided or discovered
his error” that fact would be irrelevant if the petitioner followed the instructions of
the state court). It is clear from the record that Bell relied on the June 12 Order
prohibiting him from filing pro se motions to his detriment.
Ordinarily, a court’s command that a defendant with counsel not file pro se
motions would not be an extraordinary circumstance; however, in this case, the
court incorrectly assumed that Bell was represented by collateral counsel. Due to
unusual circumstances—the changes in Florida’s collateral counsel appointment
system and a severe backlog of inmates without appointed counsel—Bell was
unable to file anything in state court from June 12, 1998 to September 3, 1998.
Thus, this case is not a case of simple attorney negligence; it is more like our cases
10
in which we equitably tolled AEDPA’s statute of limitations when the untimely
filing was caused by erroneous information supplied to the prisoner by state courts.
See Spottsville, 476 F.3d at 1243 (instructing petitioner to file appeal in the
incorrect state court); Knight v. Schofield, 292 F.3d 709, 710 (11th Cir. 2002)
(notifying the petitioner eighteen months after the decision was filed when the
clerk promised petitioner that he would be promptly informed of the decision).
Here, the court prematurely cautioned Bell to not file pro se motions nearly three
months before he was represented by counsel, thus prohibiting Bell from filing any
motions during those months, including an appeal of the denial of his 3.800(a)
motion. Essentially, during the period he was not represented by counsel, Bell lost
the ability to file any motion that would have effectively tolled AEDPA’s statute of
limitations. To count that time against him would be inequitable, and we thus find
that this limited circumstance is extraordinary.
However, Bell must also show a nexus between the extraordinary
circumstance and the late filing of his federal habeas petitions, see San Martin, 633
F.3d at 1270–71, and it is often the case that causation is more difficult for a
petitioner to prove if an extraordinary circumstance occurs early in the statute of
limitations period. Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011). Bell
contends that he was prepared to file several motions during this time period and
11
that he lost his ability to appeal the denial of his pro se motion to correct an illegal
sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). However, Bell
has supplied no evidence to support this assertion. Therefore, the record does not
support the contention that Bell’s inability to file any pro se motions from June 12
to September 3, 1998 prohibited him from timely filing his petition in May 1999.
Because Bell cannot show causation, there is no need for us to discuss whether
Bell showed reasonable diligence.
The district court correctly decided all four COAs and we, therefore, affirm.
AFFIRMED.
12