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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15280
Non-Argument Calendar
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D.C. Docket Nos. 6:12-cv-00641-JA-DAB,
6:08-cr-00176-JA-GJK-1
FRANK L. AMODEO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(January 22, 2020)
Before WILLIAM PRYOR, GRANT and LUCK, Circuit Judges.
PER CURIAM:
Frank Louis Amodeo, a federal prisoner, appeals the denial of his third
motion to vacate as untimely. 28 U.S.C. § 2255(f). The district court ruled that
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Amodeo’s third motion, which he filed after the expiration of the one-year statute
of limitation, id., was “a new case rather than a continuation or amendment” and
could not relate back to his previous timely-filed motions that were dismissed
without prejudice. The district court also ruled that Amodeo was not entitled to
equitable tolling because his litigiousness evidenced that his “mental health [did
not] prevent[] him from timely filing a § 2255 motion.” We affirm.
In 2009, the district court sentenced Amodeo to 270 months of imprisonment
following his pleas of guilty to one count of conspiring to defraud the United
States, 18 U.S.C. § 371, one count of obstructing an agency investigation, id.
§ 1505, and three counts of failing to remit payroll taxes, 26 U.S.C. § 7202.
Amodeo appealed and argued that the district court failed to ensure that he was
competent to plead guilty. United States v. Amodeo, 387 F. App’x 953 (11th Cir.
2010). We rejected Amodeo’s argument as “belied by” evidence that he stipulated
to his competency and that the district court considered testimony from Amodeo’s
doctor about his competency and questioned Amodeo extensively during the
change of plea hearing to determine his competency. Id. at 954.
Amodeo inundated the courts with postconviction filings. In June 2011, a
month before we affirmed Amodeo’s conviction, he filed a motion to vacate that
the district court dismissed without prejudice after he disobeyed three orders to
amend the contents of his motion. See 28 U.S.C. § 2255. Amodeo then petitioned
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unsuccessfully for a certificate of appealability and for a writ of certiorari in the
Supreme Court. Meanwhile, in November 2011, Amodeo filed a second motion to
vacate that the district court dismissed after he refused to comply with several
orders to reduce the length of his motion. Amodeo moved to vacate the order of
dismissal, and when that proved unsuccessful, he applied for a certificate of
appealability, which both the district court and this Court denied. And Amodeo
moved six times for the district court to reopen or reconsider its order of dismissal
after he filed his third motion to vacate that is the subject of this appeal.
We review the denial of Amodeo’s motion under a mixed standard of review.
We review the factual findings of the district court for clear error and the
application of the statute of limitation and doctrine of equitable tolling to those
facts de novo. Lawrence v. Fla., 421 F.3d 1221, 1224 (11th Cir. 2005), aff’d, 549
U.S. 327 (2007). Amodeo bears the burden of proving that his filing warrants
equitable tolling of the limitation period. See id. at 1226.
The district court correctly determined that Amodeo’s third motion to vacate
could not be timely filed through relation back to his previously dismissed
motions. Federal Rule of Civil Procedure 15 allows a party to relate back “[a]n
amendment to a pleading” pending before a district court. Fed. R. Civ. P. 15(c).
Amodeo filed separate motions to vacate that were assigned different case
numbers. Because the district court had already dismissed Amodeo’s two earlier
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motions to vacate, there was no pleading pending in the district court when
Amodeo filed his third motion. So Amodeo’s third motion to vacate had “nothing
. . . to relate back to.” Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000).
Amodeo argues that his third motion to vacate relates back based on our
precedent in Mederos v. United States, 218 F.3d 1252 (11th Cir. 2000), but that
decision is distinguishable. In Mederos, the district court dismissed the prisoner’s
motion to vacate without prejudice because it was not signed under penalty of
perjury, and it then dismissed as untimely a second, identical motion filed 16 days
later with a proper signature. Id. at 1253. We vacated the second order of dismissal
because the “interests of justice” required treating Mederos’s second motion—filed
promptly and before a responsive pleading—“as an amendment that cured the
initial § 2255 motion’s technical deficiency, and [that] related back to the date of
filing of the original motion for statute of limitations purposes.” Id. at 1254. Unlike
the movant in Mederos, Amodeo disregarded several orders to correct his first two
motions to vacate, and after dismissal of his second motion, he waited six months
to file his third motion to vacate. Amodeo is not entitled to the “special
consideration” accorded to the movant in Mederos. See id.
The district court did not clearly err in finding that Amodeo’s mental
conditions did not amount to an “extraordinary circumstance” that entitled him to
equitable tolling. See Lawrence, 421 F.3d at 1226. “[M]ental impairment is not per
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se a reason to toll a statute of limitations”; the mental condition must affect the
movant’s “ability to file a timely petition.” Hunter v. Ferrell, 587 F.3d 1304, 1308
(11th Cir. 2009); see Lawrence, 421 F.3d at 1226. Amodeo’s conduct belies his
argument that his mental impairments hampered him from timely pursuing
postconviction relief. Amodeo timely filed two motions to vacate with a plethora of
exhibits, challenged the dismissal of those motions in this Court and the Supreme
Court, and continued to protest the dismissal of his second motion by filing several
postjudgment motions. And Amodeo knew about his impairments and notified the
district court that his bipolar disorder caused mood swings and avoidant behavior
and that he had enlisted another person to assist him. Amodeo proved capable of
timely litigating on his behalf.
We AFFIRM the denial of Amodeo’s third motion to vacate as untimely.
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