                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-2923
                        ___________________________

                              Theotis A. Muhammad

                        lllllllllllllllllllllMovant - Appellant

                                          v.

                             United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                          Submitted: September 24, 2013
                            Filed: November 13, 2013
                                 ____________

Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
                          ____________

SHEPHERD, Circuit Judge.

     Theotis A. Muhammad appeals the district court’s1 denial of his 28 U.S.C.
§ 2255 motion as untimely. We granted a certificate of appealability to address
whether the statute of limitations should have been equitably tolled. We agree that

      1
        The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
equitable tolling was not warranted in this case, and we affirm the district court’s
denial of Muhammad’s section 2255 motion.

                                          I.

       A jury convicted Muhammad of (1) aiding and abetting the robbery of a credit
union and (2) aiding and abetting the use of a firearm during and in relation to the
credit union robbery. The district court sentenced Muhammad to 96 months
imprisonment. We affirmed his conviction and sentence, see United States v.
Muhammad, 604 F.3d 1022 (8th Cir. 2010), and later denied his petition for rehearing
en banc and, alternatively, for rehearing by the panel. Muhammad did not seek a writ
of certiorari in the United States Supreme Court. For purposes of section 2255, his
conviction became final on September 27, 2010, after the 90-day period for filing a
petition for a writ of certiorari had expired. The deadline for filing his section 2255
motion was September 27, 2011.

       In February 2012, the district court finally received Muhammad’s section 2255
motion.2 On the motion, Muhammad’s signature was dated October 11, 2011, and the
envelope bore an October 14, 2011 postmark. Muhammad conceded that it was being
submitted beyond the September 27 deadline, but he argued to the district court that
the time should be tolled because he had been detained from October 2010 until
March 2011 in a Special Housing Unit of the Bureau of Prisons. Therefore, he
contended, he was denied access to the law library and to his personal materials, items
he felt necessary to prepare a proper section 2255 motion.




      2
        Muhammad sent the motion to the fifth floor of the federal courthouse in
Kansas City instead of to the Clerk of Court for the district court. The Department of
Justice affixed a received stamp of October 18, 2011, but the record does not reflect
the reason for the four-month delay in forwarding the motion to the district court.

                                         -2-
        Confinement in the Special Housing Unit was not the only basis upon which
Muhammad sought application of equitable tolling. In later filings with the district
court, such as in his first motion for appointment of counsel, Muhammad also argued
that Susan Hunt, his trial attorney, told him she would file the section 2255 motion on
his behalf but failed to do so. He stated Hunt would not respond to his “several”
letters or take his phone calls. Based on this lack of response from Hunt, Muhammad
determined that he “would stop bugging her and let her do her job.” (Doc. 13.)
Eventually, Muhammad began questioning other inmates about the time he had
remaining to file his section 2255 motion “at which point [he] found out that [he] was
just about out of time.” (Doc. 13.)

        The district court denied Muhammad’s section 2255 motion as untimely,
holding Muhammad had not demonstrated that he was subject to any extraordinary
circumstance that prevented him from timely filing the motion. Muhammad appeals
from this denial, arguing primarily that the district court should have tolled the time
for filing the section 2255 motion because of his reliance on his attorney’s promise
that she would file his section 2255 motion for him.

                                          II.

       We begin by noting the Antiterrorism and Effective Death Penalty Act of 1996
imposed, among other things, a one-year statute of limitations on motions by prisoners
under section 2255 seeking to modify, vacate, or correct their federal sentences. See
Johnson v. United States, 544 U.S. 295, 299 (2005). The one-year statute of limitation
may be equitably tolled “only if [the movant] 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, 130 S. Ct. 2549, 2562 (2010) (quoting
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)) (applicable to section 2254
petitions); see also United States v. Martin, 408 F.3d 1089, 1093 (8th Cir. 2005)



                                         -3-
(applying same rule to section 2255 motions). We review this claim de novo. See
Martin, 408 F.3d at 1093.

       Before addressing the issue of diligence, we examine whether Muhammad has
shown an extraordinary circumstance that prevented his filing a timely motion. The
record in this case suggests two claims of extraordinary circumstance that might
warrant the application of equitable tolling: (1) Muhammad’s confinement in the
Special Housing Unit from October 2010 until March 2011 where he was denied
access to a law library and to his personal documents, and (2) Muhammad’s reliance
on his attorney’s promise that she would file the section 2255 motion on his behalf.

       First, Muhammad contends that for five months, from the beginning of October
2010 until the beginning of March 2011, he was detained by the Bureau of Prisons in
a Special Housing Unit. As part of this detention, he was not permitted to visit the
prison’s law library and did not have access to his personal, legal materials. While we
do not foreclose the possibility that another movant might be able to show how the
conditions of his confinement constitute an extraordinary circumstance warranting the
application of equitable tolling, Muhammad fails to demonstrate how his five months
of special confinement prevented him from meeting the one-year statute of limitations.
He acknowledges that he was able to send letters during this confinement which
suggests he had access to paper and writing implements. He does not claim that he
was prohibited from contacting the court or was denied any mail sent from the court.
Although he claims that he was not allowed access to the prison’s law library during
this special confinement, we have recognized that equitable tolling was not proper
when an unrepresented prisoner claimed lack of legal resources. See Kreutzer v.
Bowersox, 231 F.3d 460, 463 (8th Cir. 2000). Accordingly, we agree with the district
court that Muhammad’s five-month confinement in the Special Housing Unit does not
constitute an extraordinary circumstance warranting the application of equitable
tolling.



                                         -4-
       Second, Muhammad argues that equitable tolling should apply here because he
mistakenly relied upon his attorney’s assertion that she would file a section 2255
motion on his behalf. Muhammad alleges that he wrote to Hunt on several occasions
and attempted to call her but that Hunt did not respond to his letters and would hang
up the phone when she realized he was calling. On the basis of Hunt’s behavior,
Muhammad decided that Hunt must be working on his case. He did not further pursue
the matter with her or anyone else until he began speaking with other inmates about
his deadline for filing the motion. It was then that he realized he was “just about out
of time.”

        An attorney’s negligence or mistake is not generally an extraordinary
circumstance, however “serious attorney misconduct, as opposed to mere negligence,
‘may warrant equitable tolling.’” Martin, 408 F.3d at 1093 (quoting Beery v. Ault,
312 F.3d 948, 952 (8th Cir. 2002)). For example, the Supreme Court remanded for
a lower court to make an extraordinary-circumstances determination where the
attorney “failed to file [the client’s] federal petition on time despite [the client’s] many
letters that repeatedly emphasized the importance of his doing so,” “apparently did not
do the research necessary to find out the proper filing date,” “failed to inform [the
client] in a timely manner about the crucial fact that the Florida Supreme Court had
decided his case,” and “failed to communicate with his client over a period of years.”
Holland, 130 S. Ct. at 2564.

        Comparatively, we have found extraordinary circumstances in a situation where
the movant’s attorney “consistently lied to [the movant] and his wife about the filing
deadline; repeatedly lied to [the movant] and his wife about the status of [the
movant’s] case; refused to communicate with [the movant] or his family; neglected
to file any documents, belated or not, on [the movant’s] behalf; and failed to return
any of [the movant’s] paperwork to him despite repeated requests and then demands.”
Martin, 408 F.3d at 1095.



                                            -5-
        Muhammad’s allegations against Hunt do not come close to approaching those
in Holland and Martin. At its essence, Muhammad claims that Hunt initially stated
she would file the section 2255 motion on his behalf and then quit communicating
with him. Muhammad does not claim that Hunt lied to him about the deadlines for
filing the motion, repeatedly told him that she would file the section 2255 motion,
failed to communicate critical information about his case, or withheld paperwork from
him that he would need to prepare his section 2255 motion. We do not condone
attorneys failing to respond to letters or phone calls; however, in this case, Hunt’s
actions do not constitute an “extraordinary circumstance” that prevented Muhammad
from timely filing his section 2255 motion. Thus, equitable tolling should not apply.

        Even if Hunt’s actions had constituted an “extraordinary circumstance,”
Muhammad would not be able to take advantage of equitable tolling because he did
not act with diligence. “The diligence required for equitable tolling purposes is
‘reasonable diligence’ not ‘maximum feasible diligence.’” Holland, 130 S. Ct. at
2565 (internal citations and quotation marks omitted). In Holland, the Supreme Court
decided the habeas petitioner had acted with reasonable diligence when he wrote his
attorney numerous letters requesting information and providing direction; repeatedly
contacted state courts, state court clerks, and the state bar association in an attempt to
have his attorney removed from the case; and prepared his own habeas petition and
filed it on the very day he discovered he was out of time. Id.

       This court has found a section 2255 movant demonstrated diligence when he
hired counsel well ahead of the deadline, “did everything in [his] power to stay abreast
of the status of his case,” provided original documents to his attorney to assist with
the motion, filed a complaint with the state bar, and filed motions with the district
court seeking an extension of time and the return of documents submitted to the
attorney. Martin, 408 F.3d at 1095.




                                           -6-
       Beyond writing and calling Hunt, Muhammad did nothing to monitor the status
of his case. Instead, when Hunt did not respond to Muhammad’s letters or take
Muhammad’s phone calls, Muhammad inexplicably interpreted such behavior as
evidence that Hunt was working on his case. Muhammad does not claim that he
attempted to contact the court to determine whether Hunt had filed the section 2255
motion—an action that certainly would fall under “reasonable diligence” in this case.
See, e.g., Anjulo-Lopez v. United States, 541 F.3d 814, 819 (8th Cir. 2008)
(recognizing the fact that an appeal was not filed is a matter of public record that
could have been discovered by “a duly diligent person”). Further, Muhammad’s
filings with the district court suggest that, even after he learned of the deadline, he did
not file the section 2255 motion immediately and that time for filing the motion may
have expired in the interim between his learning of the deadline and his submission
of the motion.

                                           III.

     Accordingly, we affirm the district court’s denial of Muhammad’s section 2255
motion as untimely.3
                     ______________________________




      3
       Although not part of this court’s certificate of appealability, Muhammad also
seeks to appeal the district court’s denial of an evidentiary hearing. See Dodd v.
United States, 614 F.3d 512, 518 (8th Cir. 2010) (recognizing that appellate review
is generally limited to the issues specified in the certificate of appealability, but a
panel may, at its discretion, consider issues beyond the certificate of appealability).
This issue does not appear to have merit because, as demonstrated in the opinion,
Muhammad is not entitled to relief under section 2255. See 28 U.S.C. § 2255(b) (no
evidentiary hearing is required where “the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief”). Accordingly, we do not
address this issue further.

                                           -7-
