              Case: 15-15280     Date Filed: 01/22/2020   Page: 1 of 5


                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 15-15280
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket Nos. 6:12-cv-00641-JA-DAB,
                            6:08-cr-00176-JA-GJK-1


FRANK L. AMODEO,

                                                               Petitioner-Appellant,

                                        versus

UNITED STATES OF AMERICA,

                                                              Respondent-Appellee.

                           ________________________

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

                                 (January 22, 2020)

Before WILLIAM PRYOR, GRANT and LUCK, Circuit Judges.

PER CURIAM:

      Frank Louis Amodeo, a federal prisoner, appeals the denial of his third

motion to vacate as untimely. 28 U.S.C. § 2255(f). The district court ruled that
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Amodeo’s third motion, which he filed after the expiration of the one-year statute

of limitation, id., was “a new case rather than a continuation or amendment” and

could not relate back to his previous timely-filed motions that were dismissed

without prejudice. The district court also ruled that Amodeo was not entitled to

equitable tolling because his litigiousness evidenced that his “mental health [did

not] prevent[] him from timely filing a § 2255 motion.” We affirm.

      In 2009, the district court sentenced Amodeo to 270 months of imprisonment

following his pleas of guilty to one count of conspiring to defraud the United

States, 18 U.S.C. § 371, one count of obstructing an agency investigation, id.

§ 1505, and three counts of failing to remit payroll taxes, 26 U.S.C. § 7202.

Amodeo appealed and argued that the district court failed to ensure that he was

competent to plead guilty. United States v. Amodeo, 387 F. App’x 953 (11th Cir.

2010). We rejected Amodeo’s argument as “belied by” evidence that he stipulated

to his competency and that the district court considered testimony from Amodeo’s

doctor about his competency and questioned Amodeo extensively during the

change of plea hearing to determine his competency. Id. at 954.

      Amodeo inundated the courts with postconviction filings. In June 2011, a

month before we affirmed Amodeo’s conviction, he filed a motion to vacate that

the district court dismissed without prejudice after he disobeyed three orders to

amend the contents of his motion. See 28 U.S.C. § 2255. Amodeo then petitioned



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unsuccessfully for a certificate of appealability and for a writ of certiorari in the

Supreme Court. Meanwhile, in November 2011, Amodeo filed a second motion to

vacate that the district court dismissed after he refused to comply with several

orders to reduce the length of his motion. Amodeo moved to vacate the order of

dismissal, and when that proved unsuccessful, he applied for a certificate of

appealability, which both the district court and this Court denied. And Amodeo

moved six times for the district court to reopen or reconsider its order of dismissal

after he filed his third motion to vacate that is the subject of this appeal.

      We review the denial of Amodeo’s motion under a mixed standard of review.

We review the factual findings of the district court for clear error and the

application of the statute of limitation and doctrine of equitable tolling to those

facts de novo. Lawrence v. Fla., 421 F.3d 1221, 1224 (11th Cir. 2005), aff’d, 549

U.S. 327 (2007). Amodeo bears the burden of proving that his filing warrants

equitable tolling of the limitation period. See id. at 1226.

      The district court correctly determined that Amodeo’s third motion to vacate

could not be timely filed through relation back to his previously dismissed

motions. Federal Rule of Civil Procedure 15 allows a party to relate back “[a]n

amendment to a pleading” pending before a district court. Fed. R. Civ. P. 15(c).

Amodeo filed separate motions to vacate that were assigned different case

numbers. Because the district court had already dismissed Amodeo’s two earlier



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motions to vacate, there was no pleading pending in the district court when

Amodeo filed his third motion. So Amodeo’s third motion to vacate had “nothing

. . . to relate back to.” Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000).

      Amodeo argues that his third motion to vacate relates back based on our

precedent in Mederos v. United States, 218 F.3d 1252 (11th Cir. 2000), but that

decision is distinguishable. In Mederos, the district court dismissed the prisoner’s

motion to vacate without prejudice because it was not signed under penalty of

perjury, and it then dismissed as untimely a second, identical motion filed 16 days

later with a proper signature. Id. at 1253. We vacated the second order of dismissal

because the “interests of justice” required treating Mederos’s second motion—filed

promptly and before a responsive pleading—“as an amendment that cured the

initial § 2255 motion’s technical deficiency, and [that] related back to the date of

filing of the original motion for statute of limitations purposes.” Id. at 1254. Unlike

the movant in Mederos, Amodeo disregarded several orders to correct his first two

motions to vacate, and after dismissal of his second motion, he waited six months

to file his third motion to vacate. Amodeo is not entitled to the “special

consideration” accorded to the movant in Mederos. See id.

      The district court did not clearly err in finding that Amodeo’s mental

conditions did not amount to an “extraordinary circumstance” that entitled him to

equitable tolling. See Lawrence, 421 F.3d at 1226. “[M]ental impairment is not per



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se a reason to toll a statute of limitations”; the mental condition must affect the

movant’s “ability to file a timely petition.” Hunter v. Ferrell, 587 F.3d 1304, 1308

(11th Cir. 2009); see Lawrence, 421 F.3d at 1226. Amodeo’s conduct belies his

argument that his mental impairments hampered him from timely pursuing

postconviction relief. Amodeo timely filed two motions to vacate with a plethora of

exhibits, challenged the dismissal of those motions in this Court and the Supreme

Court, and continued to protest the dismissal of his second motion by filing several

postjudgment motions. And Amodeo knew about his impairments and notified the

district court that his bipolar disorder caused mood swings and avoidant behavior

and that he had enlisted another person to assist him. Amodeo proved capable of

timely litigating on his behalf.

      We AFFIRM the denial of Amodeo’s third motion to vacate as untimely.




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