[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 26, 2005
No. 04-15435 THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00097 CV-97-RH
GARY LAWRENCE,
Petitioner-Appellant,
versus
STATE OF FLORIDA,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Florida
(August 26, 2005)
Before DUBINA, BLACK and CARNES, Circuit Judges.
DUBINA, Circuit Judge:
This is a death penalty case in which the Certificate of Appealability
(“COA”) presents only one issue for our review: whether the one-year limitations
period of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28
U.S.C. § 2244(d)(1), bars petitioner Gary Lawrence’s habeas petition. After
reviewing the record, reading the parties’ briefs, and having the benefit of oral
argument, we agree with the district court that Lawrence’s petition was untimely.
Accordingly, we affirm the district court’s order.
BACKGROUND
In March 1995, a Florida jury convicted Lawrence of one count each of
premeditated murder in the first degree, conspiracy to commit murder, petit theft,
and grand theft of a motor vehicle. The jury recommended a death sentence based
on the murder conviction, and the trial court followed the jury’s recommendation
and imposed a death sentence. The Florida Supreme Court summarized the facts
of the murder as follows:
Shortly after Gary and Brenda Lawrence were married, they
separated, and another man, Michael Finken, moved in with Brenda
and her two daughters, Stephanie and Kimberly Pitts, and Stephanie’s
friend, Rachel Matin. On the day of the murder, July 28, 1994, Gary
and Michael drove Brenda to work and then drank beer at a friend’s
house. Later, Gary and Michael picked Brenda up and the three
returned to the friend’s house where they drank more beer. After the
three returned to Brenda’s apartment, Gary and Michael argued and
Gary hit Michael when he learned that Michael had been sleeping
with Brenda. Gary and Michael seemed to resolve their differences,
and Michael fell asleep on the couch. Gary and Brenda conversed,
and Brenda went through the house collecting weapons – including a
pipe and a baseball bat. Gary and Brenda told Kimberly and Rachel
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that they were “going to knock off Mike.” Gary told Kimberly to
“stay in your bedroom no matter what you hear.”
The trial court described what happened after Gary and Brenda
spoke to the girls:
Thereafter, the two girls heard what they described
as a pounding sound. At one point, Rachel Matin stated
that she heard the victim say, “stop it, if you stop, I’ll
leave.” She stated that she heard that statement several
times. Kimberly Pitts stated she heard the victim say,
“please don’t hit me, I’m already bleeding.” The
victim’s pleas, however, were met with more pounding.
Once the pounding stopped, the girls were required to
assist in the clean up and described to the jury what they
observed. Kimberly stated that much of the victim’s
right side of his face was missing and his chin was
knocked over to his ear. Rachel Matin stated that there
was no skin left on the victim’s face and part of his nose
was missing. Apparently the victim was still alive.
Kimberly observed her mother coming out of the kitchen
area with what appeared to be a dagger and then,
although not seeing the dagger in her hand at the time,
observed her mother make a stabbing motion toward the
victim with something in her hand.
It was at that time when Brenda Lawrence
requested that the girls obtain the assistance of Chris
Wetherbee. Upon his entrance into the home, Chris
Wetherbee observed the victim’s head being caved in,
blood all over, the victim’s eyeball protruding
approximately three inches and a mop handle shoved
into the victim’s throat. Wetherbee asked Gary
Lawrence, “what’s going on?” At which time the
Defendant responded by pulling out the mop handle and
kicking the victim and making the statement “this is
what’s going on.” Immediately after removing the mop
handle from the victim’s throat, Wetherbee heard the
victim give approximately three or four ragged breaths at
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which time the victim thereafter stopped breathing and
apparently expired. The Defendant, Gary Lawrence, told
Wetherbee that he had beat him with a pipe until it bent
and then beat him with a baseball bat.
Chris Wetherbee summarized the victim’s state: “And [he]
looked like something off of one of the real good horror movies.”
Gary and Brenda then removed a small amount of money from
Michael’s pockets, wrapped the body in a shower curtain and placed
the body in Michael’s car, and Gary drove to a secluded area where
he set the body afire. When Gary returned home, he and Brenda
danced.
Lawrence v. State, 698 So. 2d 1219, 1220 (Fla. 1997).
The Florida Supreme Court affirmed Lawrence’s conviction and sentence.
Id. The United States Supreme Court denied certiorari review on January 20,
1998. Lawrence v. Florida, 522 U.S. 1080, 118 S. Ct. 863 (1998). Lawrence
sought state post-conviction relief, and the trial court denied the petition on
October 11, 2000. The Florida Supreme Court affirmed the trial court’s denial of
state post-conviction relief. Lawrence v. State, 831 So. 2d 121 (Fla. 2002). The
United States Supreme Court denied certiorari review of the Florida Supreme
Court’s denial of post-conviction relief. Lawrence v. Florida, 538 U.S. 926, 123
S. Ct. 1575 (2003).
Lawrence then moved to federal court seeking habeas relief pursuant to 28
U.S.C. § 2254. The filing of his March 11, 2003, federal pro se petition sparked
an unusual procedural journey. After filing an amended habeas petition, the State
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responded that the district court should dismiss the petition because Lawrence was
time-barred from obtaining federal habeas relief on either the original petition or
the amended petition. The State also argued that equitable tolling should not
apply in Lawrence’s case. Lawrence opposed the dismissal on the basis that there
was a disagreement among the courts of appeal on the question whether a petition
for certiorari to the U.S. Supreme Court following the denial of state post-
conviction relief tolls the limitation period. Lawrence sought to invoke the
doctrine of equitable tolling on the grounds that it was appropriate because (1)
counsel who advised him of the timing of his petition was selected by and pre-
qualified by the State of Florida under its registry statute; (2) his mental abilities
prevented him from meaningfully participating in a relationship with his counsel;
and (3) he had a facially strong constitutional claim.
On April 12, 2004, the district court entered an order staying the
proceedings. The court determined that whether Lawrence’s petition was time-
barred “depends upon whether the one-year limitations period was tolled during
the pendency of Petitioner’s petition for writ of certiorari in the United States
Supreme Court challenging the state court’s denial of his motion for state
collateral review.” [Dist. Ct. Order 28 at 1-2]. The court noted that there was a
circuit split on the issue, although Eleventh Circuit precedent clearly stated that
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the limitations period was not tolled during the pendency of a petition for
certiorari challenging the state court’s denial of post-conviction relief. See Coates
v. Byrd, 211 F.3d 1225, 1227 (11th Cir. 2000). On the question of equitable
tolling, the district court found that Lawrence had not met the prerequisites to
equitable tolling. However, in light of the pending certiorari petition in Abela v.
Martin, 348 F.3d 164 (6th Cir. 2003), cert. denied sub nom. Caruso v. Abela, 541
U.S. 1070, 124 S. Ct. 2388 (2004), which held contrary to this circuit’s decision in
Coates, 211 F.3d at 1227, the district court entered an order staying the
proceedings. The district court noted that if the Supreme Court denied review in
Abela, then it would dismiss Lawrence’s petition based on Coates. [Dist. Ct.
Order 28 at 1-2].
Subsequently, on May 27, 2004, after the Supreme Court denied review in
Caruso v. Abela, the district court noted in an order that Lawrence’s petition was
time-barred based on Coates. [Dist. Ct. Order 34 at 2]. However, the court did
not enter an order dismissing the petition because the State had lodged an appeal
from the district court’s stay order. After this court dismissed the State’s appeal
from the stay order for lack of jurisdiction, the district court entered the order
dismissing the petition. Lawrence filed a motion for a COA, which the district
court granted. The district court set forth the issue in the COA as “whether the
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one-year limitations period applicable to a petition for writ of habeas corpus under
28 U.S.C. § 2254 barred this petition, and on the legal issue whether the statute of
limitations is tolled during the pendency of a petition for writ of certiorari in the
United States Supreme Court challenging the state court’s denial of petitioner’s
earlier motion for state collateral review.” [Dist. Ct. Order 45, at 4].
DISCUSSION
The only issue presented in the COA is whether the one-year limitations
period under AEDPA bars Lawrence’s habeas petition. After needless delay, the
district court determined that Lawrence’s petition was untimely.1 “The district
court’s interpretation and application of a statute of limitations is a question of law
that is subject to de novo review.” Hepburn v. Moore, 215 F.3d 1208, 1209 (11th
Cir. 2000). We also review de novo the district court’s legal decision on equitable
tolling. Drew v. Dep’t of Corr., 297 F.3d 1278, 1283 (11th Cir. 2002); Steed v.
Head, 219 F.3d 1298, 1300 (11th Cir. 2000). However, we will reverse the district
court’s factual determinations only if they are clearly erroneous. Drew, 297 F.3d
at 1283. The district court’s finding whether a party was diligent in ascertaining
1
We say needless delay because we conclude that the district court abused its discretion in
entering a stay order pending a certiorari ruling by the United States Supreme Court in Caruso v.
Abela, 541 U.S. 1070, 124 S. Ct. 2388 (2004). The stay injured the State because the State has a
substantial interest in the finality of state criminal proceedings. See McCleskey v. Zant, 499 U.S.
467, 493, 111 S. Ct. 1454, 1470 (1991). “Each delay, for its span, is a commutation of a death
sentence to one of imprisonment.” Thompson v. Wainwright, 714 F.2d 1495, 1506 (11th Cir. 1983).
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the federal habeas filing deadline is a finding of fact. See id. at 1287, 1287 n.2
(stating that “[t]reating a finding regarding diligence as a finding of fact is
consistent with the approach taken by the majority of the circuits in both habeas
corpus proceedings and other contexts”).
We begin our discussion by setting forth the limited circumstance under
which a court may issue a COA. The right to appeal is governed by the COA
requirements set forth in 28 U.S.C. § 2253(c):
(c)(1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals from
–
(A) the final order in a habeas corpus proceeding in
which the detention complained of arises out of process
issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only
if the applicant has made a substantial showing of the denial of a
constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate
which specific issue or issues satisfy the showing required by
paragraph (2).
28 U.S.C. § 2253(c).
Under this limited provision, if a district court denies a habeas petition on
procedural grounds without reaching the petitioner’s underlying constitutional
claims, a COA should issue only if the petitioner shows “that jurists of reason
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would find it debatable whether the petition states a valid claim of the denial of a
constitutional right, and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S.
473, 478, 120 S. Ct. 1595, 1601 (2000). “[B]oth showings [must] be made before
the court of appeals may entertain the appeal.” Id. at 485, 120 S. Ct. at 1604. If
the procedural bar is obvious and the district court correctly invoked it to dispose
of the case, “a reasonable jurist could not conclude either that the district court
erred in dismissing the petition or that the petitioner should be allowed to proceed
further.” Id. at 484, 120 S. Ct. at 1604. The court may first resolve the issue
whose answer is more apparent from the record and the arguments. Id. at 485, 120
S. Ct. at 1604. “The recognition that the court will not pass upon a constitutional
question although properly presented by the record, if there is also present some
other ground upon which the case may be disposed of, allows and encourages the
court to first resolve procedural issues.” Id. (quotations and citation omitted).
Because of the statutory constraint in issuing a COA, we are puzzled by the
district court’s issuance of a COA in this case. The district court should not have
issued a COA on the statute of limitations issue because binding circuit precedent
clearly disposed of the issue. “[T]he time during which a petition for writ of
certiorari is pending, or could have been filed, following the denial of collateral
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relief in the state courts, is not to be subtracted from the running of time for 28
U.S.C. § 2244(d)(1) statute of limitations purposes.” Coates, 211 F.3d at 1227.
On that basis, jurists of reason would not find the timeliness issue debatable in this
circuit. Thus, a COA should not have issued.
However, the district court did issue a COA on the statute of limitations
issue. Although the COA does not specifically state that the exceptions to the
statute of limitations – State impediment and equitable tolling – are included
within the COA, Lawrence contends that these exceptions are subsumed within the
COA and properly before this court for consideration. We agree. To decide
whether the statute of limitations bars Lawrence’s federal habeas petition, we must
consider whether a State impediment or equitable tolling excepts the one-year
filing deadline. If Lawrence can demonstrate that a State impediment prevented
him from timely filing or that equitable tolling applies to his case, then his petition
is timely.
Lawrence contends that 28 U.S.C. § 2244(d)(1)(B)2 applies to his case
because the State caused an impediment to his timely filing by providing him with
2
This provision states that the one-year limitation period shall begin to run on “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.” 28 U.S.C. § 2244(d)(1)(B).
10
an incompetent attorney through the Florida counsel registry system. It is not
clear, however, that Lawrence asserted a § 2244(d)(1)(B) impediment to the
district court. We generally do not consider an issue that was not raised in the
district court. Calzadilla v. Banco Latino Int’l., 413 F.3d 1285, 1287 (11th Cir.
2005); Rhine v. Boone, 182 F.3d 1153, 1154 (10th Cir. 1999) (refusing to consider
§ 2244(d)(1)(B) argument because petitioner did not argue in district court that
State had created an impediment to his filing in violation of the Constitution).
Assuming Lawrence presented this issue to the district court, we conclude that
Lawrence’s assertion that the State impeded him from timely filing by providing
an incompetent attorney to assist him after setting up a State registry system to
monitor attorney performance, is meritless. This is not the type of State
impediment envisioned in § 2244(d)(1)(B).
Additionally, Lawrence cannot show that there are extraordinary
circumstances present in his case to warrant the application of equitable tolling.
“Equitable tolling is an extraordinary remedy which is typically applied
sparingly.” Steed, 219 F.3d at 1300. It is available “when a movant untimely files
because of extraordinary circumstances that are both beyond his control and
unavoidable even with diligence.” Sandvik v. United States, 177 F.3d 1269, 1271
(11th Cir. 1999). Equitable tolling is limited to rare and exceptional
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circumstances, such as when the State’s conduct prevents the petitioner from
timely filing. Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000); see also
Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 458 (1990)
(stating that the Court has allowed equitable tolling in situations where
complainant has been induced or tricked by his adversary’s misconduct into
allowing the filing deadline to pass); Arce v. Garcia, 400 F.3d 1340, 1349 (11th
Cir. 2005) (noting that in order to invoke equitable tolling, courts usually require
some affirmative misconduct, such as deliberate concealment).
Making the most of a novel argument, Lawrence posits that the State’s
provision to him of an incompetent attorney justifies the imposition of equitable
tolling. This is not an extraordinary circumstance that warrants the application of
equitable tolling. Moreover, we have stated on numerous occasions that “attorney
negligence is not a basis for equitable tolling, especially when the petitioner
cannot establish his own diligence in ascertaining the federal habeas filing
deadline.” Howell v. Crosby, 415 F.3d 1250, 1250 (11th Cir. 2005); accord
Helton v. Secretary for the Dep’t of Corr., 259 F.3d 1310, 1313 (11th Cir. 2001);
Steed, 219 F.3d at 1300; Sandvik, 177 F.3d at 1270.
Lawrence also contends that his mental incapacity prevented him from
timely filing and justifies the invocation of equitable tolling. However, Lawrence
12
cannot establish a causal connection between his alleged mental incapacity and his
ability to file a timely petition. Lawrence admits in his appellate brief that medical
reports state that his full scale IQ is 81, and he admits that he did not make the
assertion that he was mentally incompetent per se. Instead, Lawrence claims that
his initial pleading made it clear that he has suffered from mental impairments his
entire life. However, this contention, without more, is insufficient to justify
equitable tolling. See Bilbrey v. Douglas, 124 Fed. Appx. 971, 973 (6th Cir. 2005)
(finding that equitable tolling did not apply because petitioner “failed to establish
a causal connection between her mental condition and her ability to file a timely
petition”); Green v. Hinsley, 116 Fed. Appx. 749, 751 (7th Cir. 2004) (finding that
equitable tolling did not apply because petitioner failed to submit evidence of how
his low IQ would render him incompetent or prevent him from timely filing his
petition); Fisher v. Gibson, 262 F.3d 1135, 1145 (10th Cir. 2001) (finding that
petitioner’s mere allegations of incompetency at the time of his guilty pleas did not
suffice to warrant equitable tolling of the limitations period); Collins v. Scurr, 230
F.3d 1362 (8th Cir. 2000) (Table) (finding that bald and unsupported assertions
that relate to an instance of alleged mental incompetency that occurred at a time
remote to petitioner’s habeas petition filing deadline did not equitably toll the
statute of limitations); Fisher v. Johnson, 174 F.3d 710, 716 (5th Cir. 1999)
13
(finding that equitable tolling did not apply when petitioner’s brief period of
incapacity “occurred at a time so remote to his deadline” and petitioner could not
show that he diligently pursued his application the remainder of the one-year filing
deadline); cf. Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003) (remanding
case for further factual development on issue of whether petitioner’s mental illness
prevented him from timely filing his federal habeas petition as to warrant the
application of equitable tolling); Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001)
(remanding case for further factual development where petitioner “presented
evidence of ongoing, if not consecutive, periods of mental incompetency” because
mental incompetence may constitute an extraordinary circumstance for purposes
of tolling the statue of limitations when a person’s mental deficiency affects his
ability to file a timely habeas petition).
CONCLUSION
For the above stated reasons, we affirm the district court’s order dismissing
Lawrence’s habeas petition as untimely.
AFFIRMED.
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