                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT                    FILED
                                ________________________          U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                                                       MARCH 31, 2011
                                       No. 10-12080
                                                                         JOHN LEY
                                 ________________________                 CLERK

                          D.C. Docket No. 5:04-cv-00618-LSC-TMP

ROBIN D. MYERS,

lllllllllllllllllllll                                          Petitioner - Appellant,

    versus

RICHARD ALLEN,
Commissioner, AL DOC,
ATTORNEY GENERAL
of Alabama,

lllllllllllllllllllll                                          Respondents - Appellees.

                                ________________________

                          Appeal from the United States District Court
                             for the Northern District of Alabama
                                 ________________________

                                       (March 31, 2011)

Before DUBINA, Chief Judge, BARKETT and BLACK, Circuit Judges.

PER CURIAM:

         Robin Myers, an Alabama prisoner on death row, appeals from the district
court’s denial of his petition for a writ of habeas corpus, brought pursuant to 28

U.S.C. § 2254. On appeal, Myers raises two substantive claims: that his death

sentence is improper because he is mentally retarded under Atkins v. Virginia, 536

U.S. 304 (2002); and that the prosecution’s withholding of exculpatory evidence

impermissibly tainted the trial under Brady v. Maryland, 373 U.S. 83 (1963).

       He also argues that the district court improperly denied his whole petition as

untimely pursuant to 28 U.S.C. § 2244(d)’s one-year statute of limitations on two

different grounds. First, and applicable to all claims, Myers argues that because of

his attorney’s abandonment, he is entitled to equitable tolling of the statute of

limitations. Second, Myers argues that even if equitable tolling does not render

the petition timely, the statute of limitations for the Brady claim should begin to

run from the date he discovered the exculpatory evidence.

                               I. Procedural Background

       In 1994, a jury found Myers guilty of a 1991 murder1 and at the penalty

phase recommended a verdict of life without parole. The trial court overruled the

jury recommendation and imposed a death sentence without discussion. Myers

appealed his conviction and sentence to the Alabama courts, which affirmed. See



       1
          Myers unlawfully entered the victim’s house late at night, stabbed her and her cousin,
and stole the victim’s VCR, which he later traded for crack cocaine. The cousin survived. Myers
admitted to police—and later testified at trial—that he found the VCR, but claimed that he had
found it in the bushes near his house.

                                               2
Myers v. State, 699 So. 2d 1281 (Ala. Crim. App. 1996); Ex parte Myers, 699 So.

2d 1285 (Ala. 1997), cert. denied Myers v. Alabama, 522 U.S. 1054 (1998).

      Shortly after the Supreme Court denied certiorari on January 12, 1998,

Attorney Earle Schwarz agreed to represent Myers pro bono in post-conviction

proceedings and filed a petition pursuant to Alabama Rule Criminal Procedure 32

in the circuit court. Schwarz did not file the petition until December 21, 1998,

eleven months—or, more precisely, 343 days—after the Supreme Court’s denial of

certiorari rendered Myers conviction final and began running the one-year statute

of limitation for federal habeas. Schwarz also failed to comply with the state

post-conviction court’s deadlines. He had sixty days to assemble affidavits in

support of Myers’s Atkins claim, but he failed to gather them and instead waited

until the deadline to request more time. The court denied that request and then

denied the petition without a hearing. Schwarz filed Myers’s appeal to the

Alabama Court of Criminal Appeals, but after filing the briefs, he abandoned

Myers without telling either Myers or the courts of his abandonment.2 Although

the Criminal Appeals Court denied Myers’s appeal in February 2003, he believed

his appeal was pending until February 2004, when the Alabama Attorney General

sent Myers a copy of a letter mailed to Schwarz advising that they were seeking an

      2
        Schwarz, a Memphis, Tennessee, attorney, was employed at Waring Cox, PLC when he
undertook his representation through the American Bar Association’s Death Penalty
Representation Project. He then moved to Glankler Brown, PLLC.

                                           3
execution date because Myers’s time for filing appeals had expired. Other

prisoners then assisted Myers with locating new counsel who filed a federal

habeas petition on March, 25 2004.

       Myers twice amended his petition, with the district court’s permission. The

district court referred the case to a magistrate judge, who conducted discovery and

held evidentiary hearings on the timeliness of Myers’s petition and the substance

of his Atkins and Brady claims. Myers and the government presented lay and

expert witnesses who testified to Myers’s cognitive abilities and deficiencies.

After hearing the evidence, the magistrate recommended that the petition be

denied as untimely, finding that Myers had not acted with the reasonable diligence

required for equitable tolling of the statute of limitations.3 Alternatively, the

magistrate also ruled on the merits of Myers’s Atkins claim, concluding that it was

unsupported by the record for two reasons: first, the parties did not dispute that

Myers currently tests above the mentally retarded range of intellectual ability; and

second, the court accepted the government experts’ opinions that the one IQ test

below the threshold of 70 conducted in Myers’s youth was not representative of

his actual IQ. As to the Brady claim, the magistrate first recommended that claim

be dismissed as untimely, but alternatively found that it failed on the merits


       3
        The magistrate also noted Schwarz’s abdication of responsibility and, sua sponte, filed
formal complaints against him with the Alabama and Tennessee Bar Associations.

                                               4
because the withheld evidence was immaterial.4 The district court adopted the

magistrate’s reports and recommendations and dismissed the petition as untimely

pursuant to 28 U.S.C. § 2244(d).

       The district court granted a certificate of appealability on three issues: (1)

whether Schwarz’s abandonment and Myers’s cognitive impairments entitled

Myers to equitable tolling of the § 2244(d) statute of limitations sufficient to

render the whole petition timely; (2) whether he is mentally retarded and thus

ineligible for the death penalty under Atkins, notwithstanding the statute of

limitations; and (3) whether the statute of limitations on Myers’s Brady claim

began to run from the date he discovered its factual predicate, or when he could

have discovered it, such that it is timely.

                                       II. Discussion

       We have considered the parties’ briefs and oral arguments of counsel, as

well as reviewed the record of the several evidentiary hearings held by the

magistrate judge on the merits of Myers’s claims, and we find no reversible error.

       As the government conceded at argument, the question of whether Myers

pursued his claims with reasonable diligence is a mixed question of fact and law,

with factual findings reviewed for clear error and legal questions reviewed de


       4
         Myers himself—and two other witnesses—had testified to the very facts that he alleged
the withheld Brady material would have undermined.

                                               5
novo. See Helton v. Sec’y for Dept. of Corr., 233 F.3d 1322, 1325 (11th Cir.

2000); Santa Maria v. Pac. Bell, 202 F.3d 1170, 1175 (9th Cir. 2000) (holding that

undisputed facts yield a legal question) (quoted with approval by Helton, 233 F.3d

at 1325 n.7). Both sides essentially agree on the relevant facts.5 Thus, the

question is purely a legal one: Can a petitioner who is not mentally retarded and

who has exercised no diligence at all be considered to have exercised reasonable

diligence?

       Under our law, Myers’s failure to allege that he took any steps to attempt to

advance or monitor his case is fatal to his equitable tolling argument. Myers is

entitled to equitable tolling “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.” Holland v. Florida, 560 U.S. __, 130 S.Ct. 2549, 2562

(2010) (citations and quotation marks omitted). While Schwarz’s inexcusable

abandonment is strikingly similar to the “extraordinary circumstance” of

abandonment in Holland, we need not reach that issue because Myers cannot show

that he has exercise reasonable diligence in pursuing his rights.

       Myers bears the burden of presenting “evidence showing reasonable efforts



       5
          Myers concedes that there is no evidence of any diligence on his part. He does
challenge some of the district court’s factual finding relevant to his Atkins claim, and thus to
tolling, but he concedes that he is not currently mentally retarded. Further, as discussed below,
we are compelled to accept the court’s mental retardation findings under a clear error review.

                                                 6
to timely file his action.” Dodd v. United States, 365 F.3d 1273, 1277 (11th Cir.

2004) (citing Drew v. Dep’t of Corr., 297 F.3d 1278, 1286-89 (11th Cir. 2002)).

Myers need only show “an appropriate degree of diligence for someone in his

situation.” Dodd, 365 F.3d at 1283. Efforts reasonably expected of one petitioner

might be unattainable for another. See Hunter v. Ferrell, 587 F.3d 1304, 1309-10

(11th Cir. 2009) (holding that petitioner’s mental retardation could entitle him to

equitable tolling if he demonstrates a “causal connection” between his delay and

his intellectual disability). Myers claims that his cognitive impairments and

reliance on counsel who had abandoned him made it reasonable for Myers to do

nothing until he learned that his execution was scheduled. Although Myers’s

circumstances do yield a very low bar for what level of diligence is reasonable, he

still bears the burden of showing he did something to at least attempt to inquire

into the status of his case. We find no clear error in the district court’s relevant

factual findings and cannot say that the court erred in concluding that Myers is not

entitled to equitable tolling because he failed to demonstrate any diligence at all.

       As to the second and third issues, we also find no reversible error on the

court’s rulings on the substance of the Atkins and Brady claims.6 The district



       6
         “A district court’s factual findings in a habeas corpus proceeding are reviewed for clear
error. An alleged Brady violation presents a mixed question of law and fact, which this court
reviews de novo.” Wright v. Hopper, 169 F.3d 695, 701 (11th Cir. 1999) (citations and
quotation marks omitted).

                                                 7
court held extensive hearings on both claims. The court found that Myers had a

current IQ of over 80, had not shown that he had at any time exhibited an IQ of

below 70, and could not show sufficient intellectual impairment.

       Similarly, the court found that the testimony that Myers would have

challenged with the Brady evidence was immaterial to the outcome. The

testimony that Myers sought to impeach with the withheld Brady material

comprised the following: that Myers was the person who sold the victim’s VCR on

the night of the murder. However, Myers himself told the police he had sold a

VCR, explaining that he had found it in some bushes. Moreover, he and other

witnesses testified to the same facts at trial.7 Because we agree that the testimony

is not material, it is therefore unnecessary to determine if the Brady claim was

timely under 28 U.S.C. § 2244(d)(1)(D), which begins to run the statute of

limitations from “the date on which the factual predicate of the claim . . . could

have been discovered through the exercise of due diligence.” On this record, we

find no reversible error.

       AFFIRMED.


       7
         Myers argued for the first time at oral argument a new theory of the testimony’s
materiality: that the harmful testimony was not that Myers had sold the VCR, as Myers admits,
but that Myers was the only person to sell a VCR that night. Myers’s theory is that both he and
another suspect both sold VCRs in exchange for crack cocaine on the night in question. Even
under this new theory, the withheld evidence alone cannot “reasonably be taken to put the whole
case in such a different light as to undermine confidence in the verdict.” Cone v. Bell, 556 U.S.
__, 129 S. Ct. 1769, 1783 (2009).

                                                8
