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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14998
________________________
D.C. Docket No. 3:05-cv-00369-RH
MICHAEL DUANE ZACK, III,
Petitioner - Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
January 12, 2018
Before WILLIAM PRYOR, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Petitioner-Appellant Michael Duane Zack, III was convicted and sentenced
to death by a Florida court in 1997 for sexual assault, robbery, and murder. Zack’s
conviction and sentence were upheld on direct appeal, and the Florida courts
denied his claims for postconviction relief.
More than four years after the deadline to file for federal habeas relief had
elapsed, Zack sought federal habeas relief under 28 U.S.C. § 2254. The district
court denied relief, finding eight of Zack’s claims untimely and one without merit.
Sitting en banc, we reviewed the timeliness of the eight claims and affirmed the
district court. The Supreme Court denied certiorari.
Ten months after the Supreme Court denied certiorari, Zack filed a Rule
60(b)(6) motion—the subject of the operative appeal—for relief from final
judgment based on extraordinary circumstances. The district court denied the
requested relief and also denied Zack’s subsequent motion for reconsideration of
the decision. Zack now requests relief from this Court.
This Court granted a Certificate of Appealability (“COA”) on two issues
concerning the district court’s denial of Zack’s Rule 60(b)(6) motion: (1) whether
the district court abused its discretion in not considering Zack’s mental
impairments and the delayed appointment of collateral counsel for the purposes of
finding extraordinary circumstances warranting equitable tolling under the
Supreme Court’s decision in Holland v. Florida, 560 U.S. 631 (2010); and (2)
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whether the district court abused its discretion in not granting Zack an evidentiary
hearing to further explore whether Zack’s mental impairments or the delayed
appointment of collateral counsel caused Zack to miss the filing deadline for his
federal habeas petition under our precedent in Hunter v. Ferrell, 587 F.3d 1304
(11th Cir. 2009). After a thorough review of the record, and with the benefit of
oral argument, we now affirm the district court’s denial of Zack’s Rule 60(b)(6)
motion.
I.
A. Trial Proceedings and Evidence regarding Zack’s Mental Impairments
In 1997, Zack was convicted and sentenced to death for his role in the
robbery, sexual assault, and murder of Ravone Kennedy Smith. See Zack v. State,
753 So. 2d 9, 14 (Fla. 2000) (the “Direct Appeal”). The facts of Zack’s conduct do
not factor into the analysis of the issues presented by the instant appeal, and the
parties do not dispute the detailed description of the facts set forth by the Florida
Supreme Court in its decision affirming Zack’s conviction and sentence. See id. at
13–14, 17–19. For those reasons, we do not repeat them here.
During the guilt and penalty phases of his trial, Zack offered testimony about
his mental impairments and history of childhood abuse as factors mitigating his
behavior. For example, Zack presented evidence that his mother drank heavily
when she was pregnant with him and that he was born prematurely after his mother
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was in a car accident that initiated early labor. In addition, Zack presented
evidence that he ingested ten ounces of cherry vodka at the age of three, and that
the physicians who treated him during his hospitalization predicted his early
exposure to such a heavy dose of alcohol would likely yield permanent brain
damage. Zack also presented evidence that he suffered extensive child abuse at the
hands of his stepfather. Finally, mental-health experts also testified during the
proceedings. They opined variously that Zack suffered from fetal alcohol
syndrome, post-traumatic stress disorder, chronic depression, addiction, and
possible brain damage. They placed his IQ, at the lowest, at 79.
After hearing all of the evidence, the jury recommended a sentence of death
by a vote of eleven to one. Direct Appeal, 753 So. 2d at 12. On November 14,
1997, the trial court followed the jury’s recommendation and sentenced Zack to
death. Id.
B. Post-Conviction Proceedings
On direct appeal, the Florida Supreme Court affirmed Zack’s conviction and
sentence, id. at 26, and on October 2, 2000, the United States Supreme Court
denied Zack’s petition for writ of certiorari. Zack v. Florida, 531 U.S. 858 (2000).
The limitations period for a federal habeas claim challenging a state-court
conviction is one year, 28 U.S.C. § 2244(d)(1)(A), but as of October 2, 2001, one
year after the Supreme Court denied review, Zack had not yet filed either a state or
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federal application for collateral review. With no petition filed in either state or
federal court during the one-year period, Zack missed the deadline for filing a
federal habeas claim.
On July 11, 2001, approximately three months before the statute of
limitations expired, the state trial court granted Zack’s request for post-conviction
counsel and appointed Glenn Arnold as Zack’s collateral counsel. Arnold failed to
present Zack’s post-conviction claims to the court in a timely fashion. On
December 26, 2001—more than two months after the federal limitations period
expired—Arnold finally filed a motion in state court seeking an extension of time
to file a motion for collateral review under Florida Rule of Criminal Procedure
3.850. See Zack v. Tucker, 704 F.3d 917, 918 (11th Cir. 2013). The state circuit
court granted the extension and Arnold filed a timely Rule 3.850 motion on Zack’s
behalf on May 10, 2002. Id. Arnold did not seek an extension of time to file in
federal court, and the state court’s extension did not affect the timeliness of Zack’s
federal habeas petition under 28 U.S.C. § 2254.
On October 21, 2002, two months after the United States Supreme Court
rendered its decision in Atkins v. Virginia, 536 U.S. 304 (2002), Zack filed an
amended Rule 3.850 motion (the “Rule 3.850 motion”) in the state court, raising
six claims for relief, including one premised on Atkins and based on Zack’s mental
impairments. After holding a hearing, the state court denied Zack’s Rule 3.850
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motion in its entirety, including the single Atkins claim. The Florida Supreme
Court affirmed the denial of the Rule 3.850 motion as well as a subsequent, related
Rule 3.851 motion.
On September 28, 2005, almost four years after the AEDPA limitations
period expired, Zack filed a federal habeas petition under 28 U.S.C. § 2254, setting
forth nine claims for relief. Zack filed an amended federal habeas petition on
March 20, 2008 (the “§ 2254 petition”), after exhausting two additional claims in
state court.
Upon review of Zack’s § 2254 petition, the district court dismissed eight of
Zack’s claims as untimely but found that Zack’s Atkins claim was timely. The
district court reasoned that the one-year limitations period for a federal habeas
claim challenging a state-court conviction runs from one of four possible dates,
two of which applied to Zack: first, the date when the petitioner’s conviction
became final based on the conclusion of direct review (affecting his eight non-
Atkins claims); and, second, the date when the Supreme Court first recognized a
relevant constitutional right that is retroactively applicable to cases on collateral
review (affecting only his Atkins claim). See 28 U.S.C. § 2244(d)(1)(A), (C).
Because more than one year had passed without any tolling between the date
Zack’s conviction became final and the date he filed his federal petition, but less
than one year had passed between the time that the Supreme Court decided Atkins
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and when Zack filed his federal petition, the district court concluded that Zack’s
Atkins claim was timely while his eight other claims were untimely and must be
dismissed. Accordingly, the district court dismissed Zack’s eight non-Atkins
claims in an order dated November 17, 2008 (the “November 2008 Order”).
After the merits of the Atkins claim were briefed and a hearing was held, the
district court dismissed Zack’s remaining Atkins claim. The district court noted
that “[t]he record demonstrates without genuine dispute that Mr. Zack’s IQ is at
least 79,” and thus that, “[a]s the record already makes clear, four Wechsler
Intelligence Scale tests have uniformly concluded that Mr. Zack’s IQ is
significantly above the minimum threshold for mental retardation.” Zack v.
Crosby, No. #:05-cv-00369-RH, Order Den. Atkins Claim 11–12, ECF No. 36
(N.D. Fla. Mar. 26, 2009).
Zack sought, and the district court granted, a COA on the question of
whether Zack’s single timely claim in his federal habeas petition could revive his
eight untimely claims. The question raised the issue of whether Walker v. Crosby,
341. F.3d 1240 (11th Cir. 2003), which supported Zack’s position that his timely
Atkins claim rescued his eight untimely claims from the statute of limitations bar,
remained good law after Pace v. DiGuglielmo, 544 U.S. 408 (2005). Considering
that issue en banc, we overruled Walker and held AEDPA’s limitations period
applied independently to each claim. Zack v. Tucker, 704 F.3d at 918. We
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therefore affirmed the district court’s denial of relief to Zack, id., and the Supreme
Court subsequently denied Zack’s petition for certiorari review. Zack v. Crews,
134 S. Ct. 156 (2013).
C. Rule 60(b)(6) Motion
On August 25, 2014, Zack filed the operative motion in the federal district
court pursuant to Fed. R. Civ. P. 60(b)(6) (the “Rule 60 motion”), seeking relief
from the November 2008 Order. Grounding his motion on the development of the
law under Holland v. Florida, 560 U.S. 631 (2010), Martinez v. Ryan, 566 U.S. 1
(2012), and Trevino v. Thaler, 569 U.S. 413 (2013), Zack argued that he was
entitled to equitable tolling under these Supreme Court decisions, all of which were
issued while Zack’s case was still pending before the Eleventh Circuit.
Zack noted that he had previously alerted this Court to the change in the law
under Holland and Martinez “in footnote 3 of his initial en banc brief to the
Eleventh Circuit.” Zack v. Crosby, Mot. to Am. Pet. for Writ of Habeas Corpus 2
(ECF No. 56) (N.D. Fla. Aug. 26, 2014). “In particular,” Zack added, he
“informed the en banc court that this Court had relied upon the pre-Holland and
pre-Martinez law of the Eleventh Circuit in concluding that Mr. Zack was not
entitled to equitable tolling and denying a certificate of appealability on that issue.”
Id. We chose not to substantively address Zack’s equitable-tolling arguments in
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our en banc decision and instead focused on determining the effect of Pace on
Walker.
On September 4, 2014, the district court denied Zack’s Rule 60 motion. In
reaching this conclusion, the district court reasoned both that its initial ruling
finding the eight claims untimely was correct and that even if it had not been, Rule
60 could provide no relief. Order Den. Rule 60 Mot. 2–3 (ECF No. 58) (Sept. 04,
2014).
On December 23, 2014, Zack filed an application for a COA with this Court
seeking review of the district court’s decision denying his Rule 60 motion. A
member of this Court granted his request and certified the following two questions
for review:
I. In light of Holland v. Florida, 560 U.S. 631 (2010), did the district court
abuse its discretion in denying Zack’s Rule 60(b)(6) motion without
determining whether Zack’s mental impairment and the timing of the
appointment of collateral counsel, collectively, amount to extraordinary
circumstances?
II. Did the district court abuse its discretion in denying Zack an evidentiary
hearing, under Hunter v. Ferrell, 587 F.3d 1304, 1309–10 (11th Cir.
2009), to further investigation and factual development and proceedings
to determine whether a causal connection exists between Zack’s mental
impairment and the timing of the appointment of collateral counsel,
collectively, on the one hand, and the untimely filing of his petition for
relief under 28 U.S.C. § 2254, on the other?
II.
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This Court reviews the district court’s denial of a Rule 60(b)(6) motion for
abuse of discretion. High v. Zant, 916 F.2d 1507, 1509 (11th Cir. 1990). Under
this standard, we affirm unless we determine that the district court “applied an
incorrect legal standard, failed to follow proper procedures in making the relevant
determination, or made findings of fact that are clearly erroneous.” Lugo v. Sec’y,
Fla. Dep’t Corr., 750 F.3d 1198, 1207 (11th Cir. 2014) (citing Mincey v. Head,
206 F.3d 1106, 1137 n.69 (11th Cir. 2000)).
We review a district court’s decision to deny an evidentiary hearing on
equitable tolling in a Rule 60(b) proceeding for an abuse of discretion. See Lugo,
750 F.3d at 1206; Cano v. Baker, 435 F.3d 1337, 1342 (11th Cir. 2006); see also
Schriro v. Landrigan, 550 U.S. 465, 473–75 (2007).
III.
As the catchall provision of Rule 60(b), Rule 60(b)(6) authorizes relief from
judgment for “any other reason that justifies relief.” But, in Gonzalez v. Crosby,
545 U.S. 524, 535 (2005), the Supreme Court clarified that “a movant seeking
relief under Rule 60(b)(6) [must] show ‘extraordinary circumstances’ justifying the
reopening of a final judgment.” The Supreme Court noted that such extraordinary
circumstances “will rarely occur in the habeas context.” Id. And even then, we
have explained, “whether to grant the requested relief is . . . a matter for the district
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court’s sound discretion.” Lugo, 750 F.3d at 1210 (citing Toole v. Baxter
Healthcare Corp., 235 F.3d 1307, 1317 (11th Cir. 2000)).
Because Zack presented his claim for equitable relief to the district court
under Rule 60(b)(6), he must first show a qualifying “extraordinary circumstance”
under Gonzalez justifies reopening his final judgment. If Zack can pass through
this gate, we must then consider whether Zack has made the necessary showing to
warrant equitable tolling. Under Holland v. Florida, 560 U.S. 631 (2010), and its
progeny, equitable tolling may be warranted in the event of an extraordinary
circumstance. Although the distinct categories of extraordinary circumstances that
support reopening of a final judgment under Rule 60(b)(6) and those that support
equitable tolling may overlap, an extraordinary circumstance must independently
warrant each particular relief sought.
Zack argues that he presented two extraordinary circumstances justifying
Rule 60(b)(6) relief. First, Zack contends that the Supreme Court’s ruling in
Holland v. Florida and the timing of the Eleventh Circuit’s en banc decision
overturning Walker v. Crosby constitute changes in law that amount to an
extraordinary circumstance justifying reopening Zack’s case under Rule 60(b)(6).
In support of this position, Zack asserts that he “could not have anticipated the en
banc decision to overrule existing law, nor could he have expected the expansion
and clarification of equitable tolling to AEDPA cases under Holland.” Pet’r-
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Appellant Initial Br. 21. Zack further argues that “[b]ecause Holland was not a
necessary avenue for relief until after this Court had overruled Walker and because
Zack sought to alert the courts to his Holland claim for equitable tolling at the
earliest practicable moment,” the “district court should have recognized that this
case fell within the ‘limited set of circumstances’ envisioned by the Supreme Court
in Gonzalez, 545 U.S. at 529.” Id. at 22.
Second, Zack contends that the “systemic failures of the State to appoint
counsel in a reasonable timeframe . . . merit[ ] relief under Rule 60(b)(6).”
While the second circumstance is troubling, we cannot conclude that either
rises to the level of the “extraordinary circumstances” necessary to allow reopening
of a final judgment under Rule 60(b)(6). Consequently, the district court did not
abuse its discretion in denying Zack’s Rule 60(b)(6) motion.
A. Changes in the Law
First, as Gonzalez makes clear, changes in the law do not, on their own,
constitute extraordinary circumstances justifying relief under Rule 60(b)(6). See
Gonzalez, 545 U.S. at 536. In the underlying decision in Gonzalez, the district
court dismissed Gonzalez’s federal habeas petition as untimely under then-existing
Eleventh Circuit precedent. Id. at 527. After the district court’s decision, the
Supreme Court announced a new AEDPA statute-of-limitations tolling rule in
Artuz v. Bennett, 531 U.S. 4, 8 (2000), which, had it been in effect earlier, would
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have permitted Gonzalez to pursue his petition. Based on the change in law that
Artuz created, Gonzalez filed a Rule 60(b)(6) motion arguing that his case should
be reopened and that his petition should be deemed timely. The district court
denied the Rule 60(b)(6) motion and the Eleventh Circuit affirmed. Gonzalez, 545
U.S. at 527–28.
As relevant here, the Supreme Court in Gonzalez held that the district court
properly denied the Rule 60(b)(6) motion because the change in the law did not
constitute “extraordinary circumstances” justifying the reopening of the case. Id.
at 536–37. The Supreme Court opined that “[i]t is hardly extraordinary that
subsequently, after petitioner’s case was no longer pending, this Court arrived at a
different interpretation.” Id. at 536. Still further, the Supreme Court reasoned that
if Gonzalez were correct, changes in the law would be a two-way street, justifying
not only reopening decisions that disfavored petitioners when the law became more
advantageous, but also justifying reopening decisions that otherwise favored
petitioners should the law become harsher: If “Artuz justified reopening long-ago
dismissals based on a lower court’s unduly parsimonious interpretation of [the
statute of limitations], then Pace v. DiGuglielmo . . . would justify reopening long-
ago grants of habeas relief based on a lower court’s unduly generous interpretation
of the same tolling provision.” Id. at 536–37.
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Since Gonzalez, we have repeatedly found that particular changes in the
interpretation of federal habeas law fall short of the requisite extraordinary
circumstance justifying Rule 60(b)(6) relief. In Howell v. Sec’y, Fla. Dep’t Corr.,
730 F.3d 1257, 1261 (11th Cir. 2013), for example, we upheld the district court’s
denial of a Rule 60(b)(6) motion premised on the change of law in Holland,
concluding that the change of law resulting from Holland “is not an extraordinary
circumstance under Rule 60(b).”
Likewise, in Arthur v. Thomas, 739 F.3d 611, 631 (11th Cir. 2014), we held
that “the change in the decisional law affected by the Martinez [v. Ryan, 566 U.S. 1
(2012)] rule is not an ‘extraordinary circumstance’ sufficient to invoke Rule
60(b)(6).”
Notwithstanding our holdings in Howell and Arthur however, we have also
concluded that certain, limited changes in intervening law can occasionally
constitute the necessary extraordinary circumstance. In particular, we have found
extraordinary circumstances may exist when we can identify the case under review
and a prior case as “legal twins.” See Ritter v. Smith, 811 F.2d 1398, 1402–03
(11th Cir. 1987). So, for example, if a supervening decision is issued in a case
arising out of the same transaction as the petitioner’s case, or if two cases are
related insofar as they concern the constitutionality of the same statute, a
petitioner’s case may satisfy this “legal twin” status. See id.
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But that is not the case here. We cannot say that Zack’s case presents a
“legal twin” of any other case involving a change in the law. Rather, the changes
in the law Zack points to are much closer to those involved in Gonzalez, Howell,
and Arthur.
As noted above, we have specifically held that the change in law brought
about by Holland cannot constitute an extraordinary circumstance for purposes of
reopening a case under Rule 60(b). And if the change in law created by Holland
cannot constitute an extraordinary circumstance, neither does the change in law
created by our en banc decision overturning Walker.
Walker allowed petitioners to revive claims that had already expired—but
only if a timely, valid claim later arose. Here, Zack could not have relied on
Walker when he blew past the statute of limitations on his eight untimely claims
because he had no way of knowing that the Supreme Court would later issue
Atkins, on which his only timely claim was ultimately based. As a result, the
equitable considerations driving Holland do not exist with respect to Zack’s
Walker claim, and there is even less of a basis to find an extraordinary
circumstance in this case than existed in Howell, where we found no extraordinary
circumstances based on the change in law created by Holland. As a result, Zack
cannot rely on the changes in the law that he identifies to establish the
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extraordinary circumstances necessary to allow the reopening of a final judgment
on a Rule 60(b)(6) motion.
B. “System Failures”
Zack’s additional argument, concerning the State’s delay in appointing him
counsel, likewise fails to constitute an extraordinary circumstance for the purposes
of Rule 60(b)(6) relief.
We have explained that “a true 60(b) motion within the meaning of
Gonzalez [v. Crosby, 545 U.S. 524 (2005),] . . . attack[s] not the substance of the
federal court’s resolution of a claim on the merits, but some defect in the integrity
of the federal habeas proceedings.” Lugo v. Sec’y, Fla. Dep’t of Corr., 750 F.3d
1198, 1210 n.11 (11th Cir. 2014) (citation and internal quotation marks omitted).
The state’s late appointment of collateral counsel is very troubling.1 And under the
1
Here, Florida appears not to have complied with its own rules. See Fla. R. Crim. P.
3.851(b)(3) (1996) (requiring appointment of counsel within 30 days after the judgment and
sentence become final). And while we recognize that we lack the power to control Florida’s
compliance with its own rules, that fact doesn’t make Florida’s noncompliance any less
troubling—particularly since Florida adopted the 30-day requirement after its Supreme Court
Committee on Postconviction Relief in Capital Cases “recognized that, to make the process
work properly, each death row prisoner should have counsel available to represent him or her in
postconviction relief proceedings.” See id. at Ct. Comm. 1993 Adoption (emphasis added).
Indeed, so important did Florida deem timely appointment that Florida’s current version of Rule
3.851, Fla. R. Crim. P., appoints counsel contemporaneously with the Florida Supreme Court’s
issuance of its mandate on direct appeal and, to our concurring colleague’s point, requires all
conflicts of interest and other appointment issues to be resolved within 45 days thereafter—a far
cry from the nine months that passed in Zack’s case. Fla. R. Crim. P. 3.851(b).
And turning to proceedings we do have jurisdiction over, as a practical matter, the late
appointment of state counsel—particularly when it does not occur until three-quarters of the way
through the statutory period—can have an effect on a petitioner’s ability to meet AEDPA’s
limitations period because a petitioner need not seek § 2254 relief if he obtains state
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correct circumstances, it might establish the extraordinary circumstances necessary
for equitable tolling.2 But it cannot establish the extraordinary circumstances
necessary to reopen a final judgment under Rule 60(b)(6) in this case.
Zack was aware when he filed his § 2254 petition in this case that the state
did not appoint counsel until nine months into his year to file his federal petition.
Nothing about the integrity of the federal proceedings prevented him from raising
the issue at that time. And nothing new about the state’s late appointment of
counsel has been revealed or has otherwise disclosed a defect in the federal
proceedings since the district court issued its order denying and dismissing Zack’s
postconviction relief, and he cannot obtain § 2254 relief without first exhausting his state
remedies, in any case. We simply don’t know whether Zack has a meritorious federal claim
because we cannot consider his claims since counsel missed the filing deadline. The problem is
not, as our colleague incorrectly suggests we “assume,” “that every state prisoner sentenced to
death should file a federal petition,” Conc. at 22, but rather, that a state’s extremely late
appointment of counsel, resulting in counsel’s missing of the filing deadline, should not be the
sole reason why a state prisoner who may have a meritorious claim is precluded from seeking
federal relief.
Finally, we are disappointed that our colleague would use the Smith family’s ongoing
tragedy to excuse what have become routine failures in Florida by state-appointed counsel to
comply with a simple filing deadline, see Lugo, 750 F.3d at 1215-26 (Martin, J., concurring)
(identifying more than 30 capital defendants whose counsel missed the deadline for filing § 2254
claims). See Conc. at 21-22. The Smith family has had to endure the unimaginable and is
surely entitled to justice. Upon this we all agree. But justice necessarily includes affording
defendants their constitutionally guaranteed rights to pursue habeas relief.
2
In particular, where a state collateral proceeding is effectively the first opportunity
where an ineffective-assistance-of-counsel claim can be raised and the state’s failure to timely
appoint counsel to raise such a claim amounts to a petitioner’s effective absence of counsel,
perhaps the existence of extraordinary circumstances may be satisfied. See Martinez v. Ryan,
566 U.S. 1 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013). We need not and do not opine
on this issue because we do not reach it since Zack has not established extraordinary
circumstances warranting the reopening of a final judgment under Rule 60(b)(6).
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petition. For these reasons, Zack cannot establish extraordinary circumstances
supporting the reopening of the final judgment under Rule 60(b)(6).
Because Zack has failed to establish the two required sets of extraordinary
circumstances that justify reopening a final judgment and equitable tolling, we
conclude that the district court did not abuse its discretion in denying Zack’s Rule
60(b) motion.
IV.
We also conclude that the district court did not abuse its discretion in
denying Zack an evidentiary hearing to prove his equitable-tolling allegations
under Hunter v. Ferrell, 587 F.3d 1304 (11th Cir. 2009). An evidentiary hearing
would have served no useful purpose because Zack alleged no facts that could have
warranted relief if proven true. See Chavez v. Sec’y Fla. Dep’t Corr., 647 F.3d
1057, 1060 (11th Cir. 2011) (“[I]f a habeas petition does not allege enough specific
facts, that, if they were true, would warrant relief, the petitioner is not entitled to an
evidentiary hearing.”); see also id. at 1061 (“The allegations must be factual and
specific, not conclusory.”). Accordingly, the district court did not abuse its
discretion by declining to grant Zack an evidentiary hearing.
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V.
For the reasons set forth above, we conclude that the district court did not
abuse its discretion in denying Zack’s Rule 60(b)(6) motion without an evidentiary
hearing.
AFFIRMED.
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WILLIAM PRYOR, Circuit Judge, concurring:
I concur in the panel opinion except that I do not join the gratuitous
statement that there is something “very troubling” about “[t]he state’s late
appointment of collateral counsel.” Majority Op. at 16. We lack the power and
expertise to manage state post-conviction review, the delay is irrelevant to a
motion under Rule 60(b), and I do not share my colleagues’ concern that “the
process” has failed Zack. Majority Op. at 16 n.1 (emphasis omitted).
The panel opinion points out that “Florida appears not to have complied with
its own rules,” Majority Op. at 16 n.1, but we should not comment on the delay.
How a state exercises its “sovereign power to punish offenders,” Coleman v.
Thompson, 501 U.S. 722, 748 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 128
(1982)), within the bounds of the Constitution is the business of the state. And
states have no obligation to provide collateral counsel “[b]ecause a prisoner does
not have a constitutional right to counsel in state postconviction proceedings.”
Davila v. Davis, 137 S. Ct. 2058, 2062 (2017). Nor can we “instruct[] state
officials on how to conform their conduct to state law.” Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 106 (1984). And states may have understandable
reasons for delays in appointing counsel that are not immediately apparent on
federal review: a prisoner might initially refuse further review or counsel, or
scheduling, funding, or conflict-of-interest problems might slow appointment. See,
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e.g., Lugo v. Sec’y, Fla. Dep’t of Corr., 750 F.3d 1198, 1202 (11th Cir. 2014)
(pointing out that the petitioner’s original counsel “withdrew from . . .
representation . . . because it was representing [the petitioner’s] codefendant” and
that the replacement post-conviction counsel “had a personal conflict of interest
. . . [and] asked to be permitted to withdraw”). The panel opinion fails to examine
the cause of the delay, but concludes that it is inherently troubling. Federal courts
tasked with resolving narrow constitutional questions in habeas proceedings should
not concern themselves with plenary review of state processes.
The delay is also irrelevant to this appeal because an alleged defect in a state
proceeding cannot support a motion under Rule 60(b). The panel opinion correctly
acknowledges that a motion under Rule 60(b) attacks only a “defect in the integrity
of the federal habeas proceedings.” Lugo, 750 F.3d at 1210 n.11 (emphasis added)
(quoting Gonzalez v. Crosby, 545 U.S. 524, 532 & n.4 (2005)). And yet my
colleagues comment on a detail of state post-conviction review that has no bearing
on whether Zack can revive his federal litigation.
The panel opinion also suggests that prompt appointment is necessary “to
make the process work properly,” Majority Op. at 16 n.1 (quoting Fla. R. Crim. P.
3.851 Ct. Comm. 1993 Adoption), but this appeal is an odd place to express this
concern. Zack received post-conviction counsel, and the delay did nothing to
prevent Zack from obtaining full collateral review in state court. Indeed, the state
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Case: 14-14998 Date Filed: 01/12/2018 Page: 22 of 22
granted Zack an extension of time to file a motion for state collateral review,
Majority Op. at 5, and the Florida Supreme Court denied relief only after
thoroughly reviewing Zack’s arguments. See Zack v. State, 911 So. 2d 1190 (Fla.
2005). And, were this not enough process, Zack has pursued federal habeas relief
for over 12 years and obtained review of his claim under Atkins v. Virginia, 536
U.S. 304 (2002). See Majority Op. at 6–9. This Byzantine litigation has yielded
exactly zero meritorious claims and has only delayed justice for the people of
Florida and especially for the family of the woman Zack murdered, sexually
assaulted, and robbed in 1996. See Zack v. State, 753 So. 2d 9, 12–15 (Fla. 2000).
My colleagues assume that every state prisoner sentenced to death should file a
federal petition. I do not share that assumption. When a state prisoner has had a
trial, direct appeal, and state collateral review, he is presumed to be guilty. And if
this prisoner misses a federal deadline for additional rounds of collateral review, I
do not assume that an injustice has occurred. Indeed, I voted against granting Zack
a certificate of appealability to pursue this appeal because his arguments were
patently frivolous.
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