              Case: 12-15804     Date Filed: 06/17/2013   Page: 1 of 9


                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-15804
                             Non-Argument Calendar
                           ________________________

          D.C. Docket Nos. 1:11-cv-22822-MGC; 1:06-cr-20782-MGC-1


BERNARD LUCAS,

                                                               Petitioner-Appellant,

                                       versus

UNITED STATES OF AMERICA,

                                                              Respondent-Appellee.

                           ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                  (June 17, 2013)

Before TJOFLAT, PRYOR, and FAY, Circuit Judges.

PER CURIAM:

      Bernard Lucas, a federal prisoner proceeding through counsel, appeals the

district court’s denial of his 28 U.S.C. § 2255 motion to vacate his sentence as
               Case: 12-15804     Date Filed: 06/17/2013    Page: 2 of 9


untimely. For the reasons set forth below, we affirm the denial of Lucas’s § 2255

motion.

                                           I.

      On July 28, 2011, Lucas, who is serving a 188-month sentence after

pleading guilty to possession with intent to distribute 5 grams or more of cocaine

base, in violation of 21 U.S.C. § 841(a), signed a pro se § 2255 motion to vacate

his sentence. Lucas claimed, inter alia, that his trial counsel provided ineffective

assistance by disregarding Lucas’s instruction to timely file a notice of appeal of

his criminal judgment. The court appointed counsel for Lucas and scheduled an

evidentiary hearing before a magistrate judge.

      At the evidentiary hearing, Lucas testified that, at sentencing in 2007, he told

his trial counsel, Miguel Caridad, that he wanted to appeal. Caridad informed

Lucas that he had waived his rights and that Lucas could not do anything. Because

of Caridad’s statement, Lucas believed that he could do nothing more, and thus, he

“just left it at that.” Four or five days after sentencing, Lucas called Caridad’s cell

phone and asked Caridad whether they could do anything. Caridad again informed

Lucas that he had waived his rights and that they could do nothing else. Lucas

testified that, in 2011, he took a legal research class in prison and discovered that

he had a right to appeal. Lucas filed his motion with the court within a year of his

discovery of his right to appeal. The transcript of Lucas’s sentencing hearing


                                           2
              Case: 12-15804     Date Filed: 06/17/2013   Page: 3 of 9


showed that, after the court sentenced Lucas, it informed him that he had a right to

appeal the sentence imposed and that any notice must be filed within ten days after

the entry of judgment.

      The magistrate determined that Lucas had until June 7, 2008, to timely file

his motion to vacate his sentence. Because his motion was filed in 2011, his

motion was untimely. The magistrate determined that equitable tolling was not

warranted because Lucas was not diligent in pursuing his claim concerning his

ineffective-assistance claim regarding a direct appeal (“claim 1”). Lucas also had

not shown that extraordinary circumstances beyond his control precluded him from

filing a timely motion to vacate. Thus, the magistrate recommended that Lucas’s

motion to vacate be denied as untimely.

      Over Lucas’s objections, the district court agreed with the magistrate that

equitable tolling was inappropriate. The court determined that, although serious

attorney misconduct may constitute an extraordinary circumstance justifying

equitable tolling, Caridad’s actions did not constitute such. Additionally, even

assuming that Caridad gave Lucas incorrect advice about his right to file a direct

appeal, this did not prevent Lucas from timely filing a § 2255 motion. The court

also determined that Lucas’s failure to timely file a § 2255 motion due to Caridad’s

erroneous advice was avoidable with due diligence. Moreover, the district court

had informed Lucas of his right to appeal at the sentencing hearing, and after


                                          3
              Case: 12-15804     Date Filed: 06/17/2013    Page: 4 of 9


receiving inconsistent information from Caridad, Lucas only asked Caridad about

his right to appeal twice. Accordingly, the court denied Lucas’s motion to vacate

his sentence. The court granted a certificate of appealability (“COA”) as to “claim

1 (as numbered in [the magistrate’s] Report).”

                                          II.

      On appeal, Lucas argues that the district court erred in failing to find that

equitable tolling applied, such that his § 2255 motion was timely filed. He asserts

that Caridad’s erroneous advice—that Lucas had no right to file a direct appeal—is

an exceptional circumstance warranting equitable tolling. Lucas also argues that

the court erred in finding that he failed to act with due diligence. Lucas asserts that

his motion is timely because he filed it within one year of discovering that Caridad

had misadvised him concerning his right to directly appeal, and the time before

that discovery should be tolled. Alternatively, Lucas argues that the Suspension

Clause provides an additional constitutional basis for allowing the tolling of his

motion and cites Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011) (en

banc), cert. denied, 132 S. Ct. 1001 (2012), in support.

      We review a district court’s denial of equitable tolling de novo and its

factual determinations for clear error. Drew v. Dep’t of Corr., 297 F.3d 1278,

1283 (11th Cir. 2002). We assume that the COA encompasses any procedural

claim that must be addressed on appeal before addressing the merits of a


                                           4
                Case: 12-15804        Date Filed: 06/17/2013       Page: 5 of 9


constitutional claim. McCoy v. United States, 266 F.3d 1245, 1248 n.2 (11th Cir.

2001).

       A prisoner whose conviction is final, but believes that his sentence was

imposed in violation of the Constitution or federal law, may seek relief from his

sentence by filing a motion under § 2255 with the court that imposed his sentence.

28 U.S.C. § 2255(a). The Antiterrorism and Effective Death Penalty Act of 1996

imposes a one-year statute of limitations for filing a § 2255 motion, which begins

to run following the latest of four possible events, including, under § 2255(f)(1),

“the date on which the judgment of conviction becomes final.” 28 U.S.C.

§ 2255(f). Pro se litigants are deemed to know of the one-year statute of

limitations for filing § 2255 motions. Outler v. United States, 485 F.3d 1273, 1283

n. 4 (11th Cir. 2007).

       If a prisoner attempts to file outside this limitations period, a district court

may still review his motion if he is entitled to equitable tolling. San Martin v.

McNeil, 633 F.3d 1257, 1267 (11th Cir.), cert. denied, 132 S. Ct. 158 (2011).1

Equitable tolling is a rare and extraordinary remedy. Id. at 1271. A court’s

equitable powers must be exercised on a case-by-case basis. Holland v. Florida,

560 U.S. ___, 130 S. Ct. 2549, 2563, 177 L. Ed. 2d 130 (2010). Equitable tolling

       1
          Cases addressing equitable tolling of the statute of limitations under 28 U.S.C. § 2244
pertaining to habeas petitions are “equally valid” with respect to § 2255 cases. Jones v. United
States, 304 F.3d 1035, 1037 n.4 (11th Cir. 2002).


                                                5
               Case: 12-15804     Date Filed: 06/17/2013     Page: 6 of 9


is available if the prisoner demonstrates that (1) he has pursued his rights diligently

and (2) an extraordinary circumstance prevented him from timely exercising his

rights. Id. at ___, 130 S. Ct. at 2562. Equitable tolling is available only where a

movant untimely files his motion due to extraordinary circumstances that are

beyond his control. Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir. 2009).

There must be a causal connection between the alleged extraordinary

circumstances and the late filing of the motion. San Martin, 633 F.3d at 1267.

      The diligence required for equitable tolling to be warranted is “reasonable

diligence, not maximum feasible diligence.” Id. (quotations omitted). In Holland,

the Supreme Court determined that Holland was reasonably diligent in pursuing his

rights for the purposes of equitable tolling where (1) he wrote his attorney

numerous letters seeking crucial information and providing direction to his

attorney concerning Holland’s post-conviction remedies; (2) Holland contacted the

state courts, their clerks, and the state bar association in an effort to have his

attorney, who was impeding Holland’s pursuit of his legal remedies, removed from

his case; and (3) the very day that Holland discovered the limitations period had

expired due to his attorney’s failings, Holland prepared his own habeas petition pro

se and promptly filed it with the court. See Holland, 560 U.S. at ___, 130 S. Ct. at

2555-59, 2565.




                                            6
                Case: 12-15804        Date Filed: 06/17/2013       Page: 7 of 9


       Lucas does not dispute the district court’s determination that his § 2255

motion was untimely, and the only issue on appeal is whether Lucas is entitled to

equitable tolling of the limitations period under § 2255(f)(1).2 Equitable tolling

of that limitations period is not proper because Lucas has not shown that an

extraordinary circumstance prevented him from timely exercising his right to file a

§ 2255 motion, as opposed to his right to file a direct appeal. See id. at ___, 130 S.

Ct. at 2562. Caridad did not provide any erroneous advice about Lucas’s right to

file a § 2255 motion. Although Caridad may have incorrectly advised Lucas about

his right to directly appeal, he has not shown a causal connection between the

alleged extraordinary circumstance and the late filing of his § 2255 motion. See

San Martin, 633 F.3d at 1267.

       Further, even assuming, arguendo, that Lucas was able to show that

Caridad’s possible misadvice constituted an extraordinary circumstance that

prevented Lucas both from filing a direct appeal and a timely § 2255 motion,

Lucas failed to show that he was reasonably diligent in pursuing his rights.

Although Caridad may have misadvised Lucas after sentencing about his right to

file a direct appeal, there is no dispute that the district court correctly informed

Lucas at sentencing that he did have a right to appeal his sentence. After receiving


       2
           Lucas does not argue on appeal that any other limitations period under § 2255(f) is
relevant to his case.

                                                7
               Case: 12-15804     Date Filed: 06/17/2013    Page: 8 of 9


this contrary advice, Lucas only sought to reconcile Caridad’s and the court’s

contrary statements once more, four or five days after sentencing, and then did not

pursue the matter further until Lucas filed his untimely § 2255 motion in 2011.

Lucas’s actions fall far short of what the Supreme Court found to constitute

reasonable diligence in Holland. See Holland, 560 U.S. at ___, 130 S. Ct. at 2565.

Thus, Lucas was not reasonably diligent in pursuing his rights.

      Lucas further argues that he is entitled to equitable tolling based on the

Suspension Clause and cites our decision in Gilbert in support. The Suspension

Clause provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be

suspended, unless when in Cases of Rebellion or Invasion the public Safety may

require it.” U.S. Const. art. I, § 9, cl. 2. In Gilbert, we addressed whether the

savings clause in 28 U.S.C. § 2255(e)—providing that a federal prisoner only can

file a 28 U.S.C. § 2241 habeas petition where a § 2255 motion is inadequate—

permits a federal prisoner to challenge his sentence in a § 2241 petition when he

cannot raise that challenge in a § 2255 motion because of the bar against second

and successive motions. 640 F.3d at 1295, 1305-06. We determined that the

savings clause does not authorize a federal prisoner to bring certain claims, which

would otherwise be barred by § 2255(h), in a § 2241 petition and that the

restrictions in § 2255(h) do not violate the Suspension Clause. Id. at 1317, 1323.

Gilbert is not on point to the issue in this case relating to equitable tolling. In any


                                           8
              Case: 12-15804     Date Filed: 06/17/2013   Page: 9 of 9


event, we previously have rejected a § 2255 movant’s argument that the denial of

equitable tolling constituted an unconstitutional suspension of the writ of habeas

corpus. See Johnson v. United States, 340 F.3d 1219, 1228 n.8 (11th Cir. 2003).

      For the foregoing reasons, we affirm the denial of Lucas’s § 2255 motion.

      AFFIRMED.




                                          9
