                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                    FOR THE ELEVENTH CIRCUIT                 U.S. COURT OF
                      ________________________                  APPEALS
                                                           ELEVENTH CIRCUIT
                                                            FEBRUARY 7, 2012
                             No. 09-10782                      JOHN LEY
                       ________________________

                   D. C. Docket No. 07-00860-CV-ODE

MICHAEL BELL,



                                                          Petitioner-Appellant,

                                  versus

FLORIDA ATTORNEY GENERAL,
SECRETARY DEPARTMENT OF CORRECTIONS,


                                                      Respondents-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                            (February 7, 2012)

Before TJOFLAT, WILSON, and BLACK, Circuit Judges.

PER CURIAM:
       Michael Bell is on Florida’s death row after being convicted of two counts

of first-degree murder. He appeals the district court’s dismissal of his federal

habeas petition on timeliness grounds.1 On March 19, 2009, the district court

issued a Certificate of Appealability (COA) on each of the following grounds: (1)

whether Bell is entitled to tolling of the Anti-Terrorism and Effective Death

Penalty Act of 1996 (AEDPA) one-year statute of limitations because of late

appointment of collateral counsel; (2) whether Bell’s motion to correct an illegal

sentence entitles him to additional tolled time; (3) whether the statute of limitations

should run from the time that collateral counsel was appointed because Bell was

able to discover the factual predicate of his claims at that time; and (4) whether

Bell is entitled to equitable tolling of the one-year statute of limitations.

       After oral argument we issued an opinion requesting that the district court

“specify whether jurists of reason would find it debatable that Bell’s petition states

a valid claim of the denial of a constitutional right.” Bell v. Fla. Att’y Gen., 614

F.3d 1230, 1232 (11th Cir. 2010). On January 7, 2011, the district court ruled that

jurists of reason could find it debatable that Bell’s petition stated a valid claim of

the denial of a constitutional right and issued a COA on each of the same grounds.

After thorough review of Bell’s claims, we affirm the district court.

       1
        Bell proceeds pro se; therefore, we liberally construe his filings. See Hughes v. Lott,
350 F.3d 1157, 1160 (11th Cir. 2003).

                                                2
       We review a district court’s dismissal of a petition for a writ of habeas

corpus and a district court’s decision on equitable tolling de novo. San Martin v.

McNeil, 633 F.3d 1257, 1265 (11th Cir.), cert. denied, San Martin v. Tucker, 132

S. Ct. 158 (2011). The petitioner has the burden of proof to show that equitable

tolling is required in any particular case. Id. at 1267. “[W]e review the district

court’s determinations of the relevant facts for clear error.” Id. at 1265 (citation

omitted). Thus, we “affirm a district court’s findings of fact unless the record lacks

substantial evidence to support them.” Id. (citation and quotation marks omitted).



                                                I.

       In June 1995, Michael Bell was convicted of two counts of first-degree

murder.2 On July 17, 1997, the Florida Supreme Court upheld Bell’s convictions

and death sentences. Bell v. State, 699 So. 2d 674, 679 (Fla. 1997) (per curiam).

Bell then timely filed a petition for a writ of certiorari in the Supreme Court of the

United States, which was denied on February 23, 1998. Bell v. Florida, 522 U.S.

1123, 118 S. Ct. 1067 (1998). The AEDPA one-year statute of limitations for the

filing of a § 2254 habeas corpus petition began to run on February 24, 1998. See

28 U.S.C. § 2244(d).

       2
        The Florida Supreme Court fully set forth the facts of Bell’s case. See Bell v. State, 699
So. 2d 674 (Fla. 1997) (per curiam).

                                                3
       On April 8, 1998, Bell filed a pro se motion for appointment of counsel in

state court. Due to changes in Florida’s collateral-counsel appointment system and

a large backlog of inmates without appointed counsel, Bell did not receive

collateral counsel until September 3, 1998.

       While Bell was awaiting appointment of counsel, he filed a pro se motion to

correct an illegal sentence pursuant to Florida Rule of Criminal Procedure

3.800(a). Bell submitted his motion to the corrections officer for mailing on April

28, 1998. On June 12, 1998 the trial court denied Bell’s motion. In its order the

court cautioned Bell to “file any future motions through counsel, or the motions

will be stricken” since “he is or should be currently represented by [counsel].” Bell

v. Florida, No. 3:07-860 (Fla. Cir. Ct. June 12, 1998) (order denying defendant’s

motion to correct an illegal sentence) (June 12 Order). Bell did not appeal this

order before the time for appeal expired on July 14, 1998. Assuming that the

3.800(a) motion tolled the one-year statute of limitations,3 the AEDPA statute of

limitations tolled from April 28, 1998 to July 14, 1998.4

       On September 3, 1998, an attorney was appointed to represent Bell. The


       3
         The State of Florida, for the purpose of its summary judgment motion, did not contest
that Bell’s 3.800(a) motion to correct an illegal sentence tolled AEDPA.
       4
         The district court held and the State agrees that the statute of limitations was tolled
during the time that Bell could have appealed the June 12 Order. See Cramer v. Sec’y, Dep’t of
Corr., 461 F.3d 1380, 1383 (11th Cir. 2006) (per curiam).

                                                4
attorney withdrew on October 12, 1998 and was replaced by another attorney,

Jeanine Sasser, on the same day. Despite being represented by counsel, Bell filed a

pro se motion for full disclosure on March 19, 1999. The state court struck the

motion on March 29, 1999 because Bell filed it pro se while he was represented by

Sasser.

      Finally, on June 1, 1999, Bell filed, through counsel, a motion for

postconviction relief pursuant to Florida Rule of Criminal Procedure 3.851. The

state court denied postconviction relief in September 2007.

      On September 10, 2007, Bell filed a pro se § 2254 habeas corpus petition.

Because Bell filed his postconviction motion on June 1, 1999—seventeen days

after AEDPA’s one-year statute of limitations expired—the motion did not toll

AEDPA’s statute of limitations. Therefore, the federal district court dismissed his

petition without a hearing on the merits. To warrant reversal of the dismissal of the

petition, Bell must persuade this court that the AEDPA one-year statute of

limitations should be tolled.

                                         II.

      The district court issued the first COA on whether Bell is entitled to tolling

under AEDPA for late appointment of collateral counsel. Bell argues that the

statute of limitations for his federal habeas corpus petition should begin on October


                                          5
12, 1998, the date that Sasser was appointed to represent him, because delay in

appointment of counsel was an impediment to filing under 28 U.S.C.

§ 2244(d)(1)(B).5

       We have already held that a delay in the appointment of collateral counsel is

not an impediment to filing within the purview of § 2244(d)(1)(B), because

prisoners in capital cases have no constitutional right to postconviction counsel.

Johnson v. Fla. Dep’t of Corr., 513 F.3d 1328, 1331 (11th Cir. 2008) (citing

Lawrence v. Florida, 549 U.S. 327, 335, 127 S. Ct. 1079, 1085 (2007)). Therefore,

the district court correctly concluded that Bell’s time to file his federal habeas

corpus petition should not be tolled for late appointment of collateral counsel.

                                                 III.

       The second COA the district court issued asks whether Bell’s motion to

correct an illegal sentence entitles him to additional tolled time. Bell argues that

his motion to correct an illegal sentence tolled AEDPA’s statute of limitations

under the doctrine of judicial estoppel. He also argues that he is entitled to an

additional ninety days of tolled time because he could have sought Supreme Court




       5
          Section 2244(d)(1)(B) states that the one-year statute of limitations “shall run from . . .
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.”

                                                  6
review of the denial of his motion.6

       Bell argues that the State is judicially estopped from arguing that the statute

of limitations expired on May 7, 1999 because the State argued that the statute of

limitations expired on May 31, 1999 in proceedings related to Bell’s state

postconviction petition before the Florida Supreme Court. After reviewing the

briefs that the State submitted to the Florida Supreme Court, it is clear that the

State only argued that Bell had until May 31, 1999 to file his 3.851 motion. The

State did not contend that AEDPA’s statute of limitations ran on May 31, 1999, but

only that the statute of limitations to file a 3.851 motion ran on May 31, 1999.

Thus, this argument is misplaced.

       Next, Bell argues that he is entitled to an additional ninety days of tolled

time because he could have sought Supreme Court review of his motion.

However, the Supreme Court rejected this argument in Lawrence. 549 U.S. at

333–34, 127 S. Ct. at 1084 (holding that the filing of a petition for certiorari in the

Supreme Court does not toll the statute of limitations under 28 U.S.C.

§ 2244(d)(2)).


       6
          In the district court Bell argued that he was entitled to tolled time because of the
mailbox rule. The district court agreed and the State did not appeal the issue. Therefore, Bell’s
motion began tolling AEDPA’s statute of limitations on April 28, 1998, the day he gave his
motion to the corrections officer, and not May 4, 1998, the day it was filed in court. See Cramer
v. Sec’y, Dep’t of Corr., 461 F.3d 1380, 1382 n.1 (11th Cir. 2006) (per curiam).


                                                7
                                          IV.

      The third COA asks whether the statute of limitations should run from the

time that collateral counsel was appointed on the grounds that Bell was able to

discover the factual predicate of his claims at this time. See § 2244(d)(1)(D). Bell

argues that he could not investigate his claims until collateral counsel was

appointed. The district court correctly found that Bell did not furnish an affidavit

or other evidence of any late-discovered facts; therefore, Bell did not point to any

claims or evidence that he could not discover prior to the appointment of collateral

counsel. Bell is not entitled to tolling under § 2244(d)(1)(D).

                                          V.

      Finally, the district court issued a COA on whether Bell is entitled to

equitable tolling of the AEDPA one-year statute of limitations. In Holland v.

Florida, the Supreme Court held that § 2244(d) is “subject to equitable tolling in

appropriate cases.” 560 U.S. — , 130 S. Ct. 2549, 2560 (2010) (citations omitted).

A petitioner is entitled to equitable tolling only 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.” Id. at 2562 (citation and quotation marks

omitted). In stating this standard, the Court emphasized that courts should be

flexible and avoid mechanical rules and overly rigid standards. See id. at 2563.


                                           8
      We further expanded on Holland in San Martin. There the petitioner

claimed that a two-week delay in receiving actual notice of the Supreme Court

decision triggering the commencement of the one-year statute of limitations was an

extraordinary circumstance requiring equitable tolling. 633 F.3d at 1261. We

rejected this argument and elaborated that the petitioner could not show a “causal

connection between the alleged extraordinary circumstances and the late filing of

the petition.” Id. at 1267. Therefore, we found that equitable tolling was not

appropriate.

      The exercise of a court’s equity powers “must be made on a case-by-case

basis.” Holland, 130 S. Ct. at 2563. Here, Bell’s petition presents a different set of

circumstances. In the June 12 Order, the court cautioned Bell to “file any future

motions through counsel, or the motions will be stricken.” However, the court

incorrectly assumed that Bell was represented by counsel at the time the order was

issued; instead counsel was not appointed until September 3, 1998.

      First we note that this court has explained “[i]t is unreasonable to expect a

pro se litigant to second-guess or disregard an instruction in a written order of a

court.” Spottsville v. Terry, 476 F.3d 1241, 1245 (11th Cir. 2007) (holding that

equitable tolling was permissible when state court misled the petitioner). After the

June 12 Order, Bell believed that he could not file any pro se motions with the


                                           9
court. The record before us confirms Bell’s reliance on the information provided

in the court’s order. After the June 12 Order, Bell did not file another pro se

motion until his motion for full disclosure on March 19, 1999, and the state court

promptly struck the motion because Bell filed the motion pro se while being

represented by counsel. Although the district court found that Bell had the

knowledge to file pro se motions, the issue here is not whether Bell had the

knowledge to file pro se motions, but whether Bell followed the court order to his

detriment. See Spottsville, 476 F.3d at 1245–46 (holding that even if petitioner

was “an experienced pro se litigant who could have either avoided or discovered

his error” that fact would be irrelevant if the petitioner followed the instructions of

the state court). It is clear from the record that Bell relied on the June 12 Order

prohibiting him from filing pro se motions to his detriment.

      Ordinarily, a court’s command that a defendant with counsel not file pro se

motions would not be an extraordinary circumstance; however, in this case, the

court incorrectly assumed that Bell was represented by collateral counsel. Due to

unusual circumstances—the changes in Florida’s collateral counsel appointment

system and a severe backlog of inmates without appointed counsel—Bell was

unable to file anything in state court from June 12, 1998 to September 3, 1998.

Thus, this case is not a case of simple attorney negligence; it is more like our cases


                                           10
in which we equitably tolled AEDPA’s statute of limitations when the untimely

filing was caused by erroneous information supplied to the prisoner by state courts.

See Spottsville, 476 F.3d at 1243 (instructing petitioner to file appeal in the

incorrect state court); Knight v. Schofield, 292 F.3d 709, 710 (11th Cir. 2002)

(notifying the petitioner eighteen months after the decision was filed when the

clerk promised petitioner that he would be promptly informed of the decision).

Here, the court prematurely cautioned Bell to not file pro se motions nearly three

months before he was represented by counsel, thus prohibiting Bell from filing any

motions during those months, including an appeal of the denial of his 3.800(a)

motion. Essentially, during the period he was not represented by counsel, Bell lost

the ability to file any motion that would have effectively tolled AEDPA’s statute of

limitations. To count that time against him would be inequitable, and we thus find

that this limited circumstance is extraordinary.

      However, Bell must also show a nexus between the extraordinary

circumstance and the late filing of his federal habeas petitions, see San Martin, 633

F.3d at 1270–71, and it is often the case that causation is more difficult for a

petitioner to prove if an extraordinary circumstance occurs early in the statute of

limitations period. Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011). Bell

contends that he was prepared to file several motions during this time period and


                                           11
that he lost his ability to appeal the denial of his pro se motion to correct an illegal

sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). However, Bell

has supplied no evidence to support this assertion. Therefore, the record does not

support the contention that Bell’s inability to file any pro se motions from June 12

to September 3, 1998 prohibited him from timely filing his petition in May 1999.

Because Bell cannot show causation, there is no need for us to discuss whether

Bell showed reasonable diligence.

      The district court correctly decided all four COAs and we, therefore, affirm.

      AFFIRMED.




                                           12
