                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               JUNE 17, 2008
                               No. 07-14945
                                                             THOMAS K. KAHN
                           Non-Argument Calendar
                                                                 CLERK
                         ________________________

        D. C. Docket Nos. 07-00043-CV-BAE-6 & 05-00034-CR-BAE

ROYLAND KICKLIGHTER,



                                                       Petitioner-Appellant,

                                     versus

UNITED STATES OF AMERICA,

                                                       Respondent-Appellee.

                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                       _________________________

                                (June 17, 2008)

Before BIRCH, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

     Royland Kicklighter, a federal prisoner proceeding pro se, appeals the
district court’s dismissal of his motion to vacate, set aside, or correct his sentence,

pursuant to 28 U.S.C. § 2255, as time-barred. Kicklighter contends that his lawyer

ignored his numerous attempts to contact him and deceived Kicklighter with regard

to a timely filing of his direct appeal. Because the certificate of appealability is

unclear as to what issues are before us, we will address the general issue, raised by

Kicklighter in his brief, of whether his § 2255 motion was time-barred. However,

because the district court did not properly explain its reasoning regarding the

dismissal of Kicklighter’s § 2255 motion and made no factual findings regarding

his allegations of attorney misconduct, we VACATE and REMAND.

                                 I. BACKGROUND

      On 9 July 2007 Kicklighter, who is serving a 180-month sentence for drug

and firearms convictions from May 2006, signed this pro se § 2255 motion to

vacate, raising several claims. Kicklighter claimed that: (1) he was denied the

effective assistance of counsel because his attorney, David Pittman, ignored his

efforts to contact Pittman about his direct appeal and lied to him about whether the

appeal had been filed; (2) he was denied his right to appeal because Pittman did not

keep him informed of the status of his appeal, did not keep him informed of a

possible Federal Rule of Criminal Procedure 35 motion, and misrepresented that he

was in contact with the government; and (3) Kicklighter had no one to assist him



                                            2
with the Rule 35 motion, which Pittman had claimed was going to be filed on his

behalf.

      The government moved to dismiss Kicklighter’s motion as untimely because

it was not filed within one year after his conviction became final in accordance

with § 2255. The government stated that Kicklighter’s case became final on 10

May 2006 and, under § 2255(f)(1), he had one year from that date to file a timely

§ 2255 motion, or until 10 May 2007, making Kicklighter’s 9 July 2007 motion to

vacate untimely. The magistrate judge issued a report and recommendation (“R &

R”), recommending that Kicklighter’s motion be dismissed as time-barred. R1-4.

The magistrate judge found that, under § 2255(f)(1), Kicklighter had until 7 May

2007 to file his motion, making his 9 July 2007 filing untimely, and that

Kicklighter had presented no newly discovered evidence or rule of law to excuse

his untimely filing. Id. at 2-3.

      Kicklighter filed an objection to the R & R, acknowledging that he had filed

his motion to vacate outside the statute of limitations period, but asking the court to

consider his reasons for failing to file on a timely basis. R1-6. He stated that he

had made every effort to “protect his right to appeal his sentence in the amount of

time that he was allowed,” and Pittman repeatedly had assured him and his

daughters that Pittman was working with the government to have a Rule 35 motion



                                           3
filed on Kicklighter’s behalf. Id. at 1-2. Kicklighter discovered, by having his

daughter contact the Assistant U.S. Attorney (“AUSA”) in April 2007, that no

legal action had been taken regarding any Rule 35 motion. Upon learning this,

Kicklighter repeatedly attempted to get in contact with Pittman in order to find out

why his attorney had “in the past eleven (11) months . . . lied to his daughter and

[to Kicklighter] concerning the status o[f] his Appeal.” Id. at 2. Allegedly,

Pittman reassured him again regarding the status of his Rule 35 motion, but, since

that time, Kicklighter has been unable to contact him by phone. Kicklighter

stressed that he was uneducated in the law and had not known about § 2255’s one-

year statute of limitations until the government filed its response to his motion to

vacate. He also stressed that he had contacted the AUSA in March 2007 to

“protect [his] right to seek a sentence reduction.” Id. at 4.

      Kicklighter attached several letters, including: (1) letters that he wrote to

Pittman; (2) letters that he wrote to the AUSA; (3) a letter from the State Bar of

Georgia, Office of the General Counsel, to Pittman, regarding a grievance filed by

Kicklighter; and (4) a letter from the State Bar of Georgia, Consumer Assistance

Program, to Kicklighter, regarding his attempt to file a grievance against Pittman.

R1-6, attached documents. In letters to the AUSA dated in March and May 2007,

Kicklighter stated that he was told that he would be receiving a sentence reduction



                                           4
pursuant to a Rule 35 motion. Id. He informed the AUSA that he had been unable

to contact his attorney regularly, who had told him and his family that he would be

resentenced. In a letter to his attorney dated 18 June 2007, Kicklighter stated that

he had attempted to contact Pittman by phone and by letter “over 50 times”

regarding the status of his Rule 35 motion, which Pittman had promised would be

filed. Id. He also stated that his wife and daughter had called Pittman at his office

“hundreds of times,” but had received only two calls in return after his daughter

mentioned plans to complain to the State Bar of Georgia if he did not reply. Id. In

his letter dated 2 July 2007, Kicklighter wrote to Pittman that because Pittman had

not responded to inquiries regarding the status of the Rule 35 motion and had not

returned the court documents related to his case to him, Kicklighter was planning

to complain to the State Bar of Georgia. In his 19 August 2007 letter to Pittman,

Kicklighter wrote that Pittman had represented to him that Pittman was “in

constant contact with the U.S. Attorney and the [Rule 35] motion would be filed

soon,” but the AUSA told Kicklighter that Pittman had never contacted the

government. Id.

      The district court adopted the magistrate judge’s R&R without an opinion

and dismissed Kicklighter’s motion to vacate. R1-7, 8. Kicklighter appealed the

district court’s order, R1-9, and moved for a certificate of appealability (“COA”),



                                          5
arguing that his failure to file a motion to vacate in a timely manner was due to

extraordinary circumstances because: (1) his attorney agreed to file an appeal, but

did not file the appeal, and never told Kicklighter that he had failed to file the

appeal, despite Kicklighter’s numerous attempts to contact him, R1-10 at 2; (2) his

attorney falsely represented to him, for several months, that a Rule 35 motion

would be filed on his behalf, id. at 3; (3) Kicklighter suffered from cancer,

requiring six operations, and had been denied access to pain medication, leaving

him in constant pain, which affects his memory and ability to concentrate, id. at 4;

and (4) he was completely ignorant of the law regarding § 2255 motions and his

appeal, id. at 3, 5. Kicklighter stated that, although he had been unable to reach

Pittman despite daily phone calls, his daughter had contacted Pittman on his behalf

and had been assured that “his rights were being protected and [he] would soon

return to court.” Id. at 2. According to Kicklighter, after he discovered that

Pittman had not been in contact with the AUSA regarding his Rule 35 motion, he

attempted to contact the district judge in his case, the AUSA, and the clerk of the

court for advice. Id. at 3. In response to his request, the clerk of the court initially

sent him 42 U.S.C. § 1983 forms, eventually mailing him the § 2255 forms, which

he mailed to the court within a few days of receiving them. Id.

      In its order granting Kicklighter a COA, the district court did not explicitly



                                            6
state on what issues it was granting the COA. See R1-11. The court stated that

Kicklighter “basically argues for equitable tolling because he was ignorant of

§ 2255’s one-year limitation, and . . . his lawyer lied to, and abandoned him.” Id.

at 1. The district court emphasized that Kicklighter argued that “[a] big part of the

delay (and being lulled into inactivity and incuriosity about his § 2255 rights)

. . . stems from a[] F.R.[Crim].P. 35 motion that [Kicklighter] believed the

Government one day would, but in fact never did, file.” Id. The district court also

mentioned that Kicklighter “has been of ill health” because of his six cancer

operations. Id. After discussing equitable tolling, however, the district court cited

to several cases addressing “due diligence” in relation to § 2255(f)(4),1 noting that

this portion of the statute “specifies that the one-year limitations period runs from

the latest of various occurrences, including, under subprovision (4), ‘the date on

which the facts supporting the claim or claims presented could have been

discovered through the exercise of due diligence.’” Id. at 2 n.3.

                                       II. DISCUSSION

       On appeal, Kicklighter contends that the issue in the COA is whether the



       1
         River v. United States, 416 F.3d 1319, 1321 and 1323 (11th Cir. 2005) (per curiam) (holding
that, under § 2255(f)(4) “procedural ignorance has never been accepted as an excuse for prolonged
inattention when a statute’s clear policy calls for promptness”); Wims v. United States, 225 F.3d
186, 189-90 (2d Cir. 2000) (stating that the statute of limitations period, according to § 2255(f)(4),
begins to run from when the petitioner could have been, with due diligence, aware that his attorney
had neglected to file an appeal).

                                                  7
district court properly dismissed his § 2255 motion as time-barred. He argues that

he showed “due diligence” in attempting to exert his appeal rights by repeatedly

attempting to contact his attorney, who ignored and deceived him. Having

discovered in April 2007 that no direct appeal had been filed on his behalf,

Kicklighter took steps to file the § 2255 motion pro se. He posits that his motion

should be considered timely because the statute of limitations should have begun

running in April 2007, which was, under § 2255, “the date on which the facts

supporting the claim or claims presented could have been discovered through the

exercise of due diligence.” Id. at 6. He also argues that extraordinary

circumstances prevented him from filing his § 2255 motion, in particular his

several cancer operations and constant pain due to the denial of pain medication.

Id. at 1, 7.

       The government responds that the COA raises the issue of whether:

       the district court correctly determine[d] that Kicklighter was not
       entitled to equitable tolling of the limitations period of 28 U.S.C.
       § 2255 due to his ignorance of the law, prior bouts with cancer, and
       his trial attorney’s failure to respond to his inquiries about a Rule 35
       motion and a possible direct appeal.

Appellee’s Brief at 1. The government contends that Kicklighter has not

established extraordinary circumstances, which would justify equitable tolling,

stressing that: (1) a movant’s ignorance of the law does not constitute



                                            8
extraordinary circumstances; (2) his medical condition is not sufficiently severe to

constitute extraordinary circumstances; and (3) attorney negligence is not

considered extraordinary circumstances for the purposes of equitable tolling. The

government argues that whether Kicklighter’s motion was timely under

§ 2255(f)(4) is not covered by the COA.

      The government has filed a supplementary letter, acknowledging our

intervening decision in Downs v. McNeil, 520 F.3d 1311, 1322 (11th Cir. 2008),

allowing serious attorney misconduct to constitute “extraordinary circumstances”

under equitable tolling. The government argues that Downs is distinguishable

from this case because the alleged misconduct occurred in conjunction with

Kicklighter’s direct appeal, and not in relation to his § 2255 motion.

      Under § 2253, the court issuing a COA must “indicate which specific issue

or issues,” warrant a COA. 28 U.S.C. § 2253(c)(3). Appellate review then is

limited to the issues specified in the COA. Murray v. United States, 145 F.3d

1249, 1250-51 (11th Cir. 1998) (per curiam). If the district court issues a COA,

but fails to enumerate specific issues for review, that does not deprive us of

appellate jurisdiction. Putman v. Head, 268 F.3d 1223, 1227-28 (11th Cir. 2001).

Instead, we may: (1) remand to the district court for enumeration of the issues; or

(2) retain jurisdiction and rule on those issues raised by the prisoner that we deem



                                           9
worthy of a COA. Id. at 1228. We also have held that a district court should

explain the reasoning behind its denial of § 2255 relief in order to “provide this

court with a sufficient basis for review.” Broadwater v. United States, 292 F.3d

1302, 1303 (11th Cir. 2002) (per curiam) (holding that the district court’s one-

sentence denial of an individual’s six ineffective assistance of counsel claims did

not provide us with a sufficient basis for review, given the complexity of the

claims, the voluminous record on appeal, and the fact that the movant’s claims had

arguable merit).

      The Antiterrrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

Pub. L. No. 104-132, 110 Stat. 1214 (1996), imposes a one-year statute of

limitations for filing a § 2255 motion, which begins to run following one of four

events, including, “the date on which the judgment of conviction becomes final,”

and “the date on which the facts supporting the claim or claims presented could

have been discovered through the exercise of due diligence.” 28 U.S.C.

§ 2255(f)(1), (4). “The statute of limitations can be equitably tolled where a

petitioner untimely files because of extraordinary circumstances that are both

beyond his control and unavoidable even with diligence.” Outler v. United States,

485 F.3d 1273, 1280 (11th Cir.) (per curiam) (quotation and citation omitted), cert.

denied, 128 S. Ct. 1443 (2008). We have decided that serious attorney misconduct,



                                          10
“[running] the gamut from acts of mere negligence to acts of gross negligence to

acts of outright willful deceit,” could constitute “extraordinary circumstances,”

which would justify equitable tolling of a movant’s § 2255 motion. Downs, 520

F.3d at 1323. Noting that the district court had not made factual findings regarding

the appellant’s allegations of attorney misconduct, the Downs court remanded the

case back to the district court for an evidentiary hearing, stating that, “[u]ltimately,

whether equitable tolling is warranted is a decision that must rest on facts, not

allegations.” Id. at 1325.

       In this case, the COA is unclear regarding what issues are presented. In the

order granting the COA, the district court found that Kicklighter “basically argues

for equitable tolling,” listing the various grounds that Kicklighter had raised to

justify it, including: (1) his ill health; (2) his attorney’s deceit; and (3) his

ignorance of the law. See R1-11 at 1. However, the district court followed this

discussion of equitable tolling with an analysis of the law related to “due

diligence” for timely filing of a motion to vacate under § 2255(f)(4), quoting from

this portion of the statute. See id. at 1-2, n.3.2 Nowhere in the order does the

district court explicitly state what issue or issues are raised by the COA, nor does


       2
         The district court appears to have conflated the concepts of equitable tolling and timely
filing under § 2255(f)(4), as the factual analysis in the order discusses equitable tolling, (see R1-11
at 1), while the legal analysis addresses § 2255(f)(4), (see id. at 1-2 and n. 3). This approach is
repeated in Kicklighter’s pro se brief.

                                                  11
the district court ever indicate whether the issue of equitable tolling, the issue of

whether Kicklighter’s motion was timely under § 2255(f)(4), or both, are covered

by the COA.

      Given that the COA is unclear, we will apply the second option in Putnam

and consider what issues, if any, raised by Kicklighter on appeal are worthy of a

COA. See Putman, 268 F.3d at 1228. In his brief, Kicklighter states that the issue

on appeal is whether his § 2255 motion was dismissed properly as time-barred,

raising arguments based on equitable tolling and due diligence under § 2255(f)(4).

We construe the COA to raise the issue of whether Kicklighter’s motion was

properly dismissed as time-barred.

      Although Kicklighter never specifically mentioned either equitable tolling or

§ 2255(f)(4) in either his § 2255 motion or in his objection to the magistrate

judge’s R & R, in his objection, he asked the court to consider his reasons for

failing to file a timely § 2255 motion, R1-6 at 1, explaining that: (1) his attorney

had deceived him about his appeal and ignored him during the months that the

statute of limitations was running; and (2) he only learned of his attorney’s

misconduct related to his ineffective assistance of counsel claims in April 2007.

Id. at 1-3. These allegations, taken as true, would raise issues related to equitable

tolling and § 2255(f)(4), especially considering the latitude given to the pleadings



                                           12
of a pro se movant. See 28 U.S.C. § 2255(f)(4); Downs, 520 F.3d at 1323;

Gomez-Diaz v. United States, 433 F.3d 788, 791 (11th Cir. 2005) (noting that we

construe the pleadings of pro se petitioners liberally). Moreover, the district court

acknowledged these issues in its order granting the COA, discussing equitable

tolling and citing to caselaw related to § 2255(f)(4). See R1-11. In its order

dismissing Kicklighter’s § 2255 motion, however, the district court adopted the R

& R without opinion. R1-7. The R&R never addressed the issues related to

equitable tolling or due diligence under § 2255(f)(4), and made no factual findings

regarding Kicklighter’s allegations of his attorney’s misconduct and deceit. R1-4.

        Because the district court offered no legal analysis or factual findings related

to Kicklighter’s allegations of attorney misconduct, the record is not sufficient for

us to determine whether the district court should have applied equitable tolling

because of the attorney misconduct, Downs, 520 F.3d at 1323-25, or should have

found that his ineffective assistance of counsel claims were not timely under

§ 2255(f)(4). Given the insufficiency of the record, remand to the district court for

factual findings is appropriate. Downs, 520 F.3d at 1526; Broadwater, 292 F.3d at

1303.

                                  III. CONCLUSION

        We require additional findings of fact and further legal explanation by the



                                            13
district court in concluding that Kicklighter’s § 2255 motion was untimely in order

to properly review the judgment of the court. Accordingly, we VACATE and

REMAND for those purposes.




                                         14
