              Case: 16-12393     Date Filed: 04/22/2019    Page: 1 of 8


                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 16-12393
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 0:16-cv-60227-DPG

ROY O. DANIELS,

                                                                 Petitioner-Appellant,

                                       versus

STATE OF FLORIDA,

                                                               Respondent-Appellee.

                           ________________________

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

                                  (April 22, 2019)

Before MARCUS, WILLIAM PRYOR and GRANT, Circuit Judges.

PER CURIAM:

      Roy Daniels, a Florida prisoner incarcerated for violating his sex offender

probation, appeals from the district court’s dismissal of his 28 U.S.C. § 2254 petition

as untimely. We granted a certificate of appealability (“COA”) on the issue of
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whether the district court erred in dismissing his § 2254 petition as time-barred. On

appeal, Daniels argues that: (1) equitable tolling is warranted because he was greatly

disadvantaged in his underlying state post-conviction proceedings by his lack of

experience with court procedure, and by the state courts’ refusal to appoint counsel

to file his petition in federal court; and (2) he is actually innocent of his convictions

and sentences out of Broward County and Palm Beach County, Florida, for probation

and sex offender registration violations. 1 After careful review, we affirm.

       We review de novo the district court’s dismissal of a § 2254 petition as

untimely. Spottsville v. Terry, 476 F.3d 1241, 1243 (11th Cir. 2007). Although we

read pro se briefs and filings in habeas cases liberally, issues not briefed on appeal

are deemed abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008);

Mederos v. United States, 218 F.3d 1252, 1254 (11th Cir. 2000). Where an appellant

briefly mentions an issue in his brief, but does not elaborate or provide argument, he

has abandoned the issue. United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th

Cir. 2003). Thus, we will not consider the notes included in Daniels’ exhibits or any

argument that his petition was timely, because he abandoned these arguments by not

“plainly and prominently” raising them. Id.; see also Timson, 518 F.3d at 874.




1
 In reviewing this appeal, we consider the arguments set forth in Daniels’ original pro se brief,
as well as in the brief his second appointed counsel filed on October 31, 2018.
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      In general, habeas petitions filed in federal district court after April 24, 1996,

the enactment date of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), are governed by the AEDPA and post-AEDPA law. Lindh v. Murphy,

521 U.S. 320, 322-23, 336 (1997). In this case, the AEDPA governs Daniels’ § 2254

petition because it was filed in 2016, long after the AEDPA was enacted.

      The AEDPA establishes a one-year statute of limitation for federal habeas

petitions filed by state prisoners. 28 U.S.C. § 2244(d)(1)(A). A habeas petitioner is

entitled to equitable tolling of the AEDPA’s one-year limitation period when he

shows that he had “been pursuing his rights diligently” and that “some extraordinary

circumstance stood in his way and prevented timely filing.” Cadet v. Fla. Dep’t of

Corr., 853 F.3d 1216, 1221 (11th Cir. 2017), cert. denied, 138 S. Ct. 1042 (2018)

(quotation omitted). Equitable tolling is an extraordinary remedy that applies only

in rare and exceptional circumstances, id., which must be both beyond the

petitioner’s control, and unavoidable, even with diligence. Sandvik v. United States,

177 F.3d 1269, 1271 (11th Cir. 1999). The petitioner must further show a causal

connection between the alleged extraordinary circumstances and his untimely filing

of the § 2254 petition. San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011).

      We’ve held that periods of time in which a prisoner is separated from his legal

documents typically do not constitute extraordinary circumstances. See Dodd v.

United States, 365 F.3d 1273, 1283-84 (11th Cir. 2004). Additionally, a prisoner’s


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pro se status or procedural ignorance do not constitute extraordinary circumstances.

See Johnson v. United States, 544 U.S. 295, 311 (2005). Equitable tolling may be

warranted when a government official affirmatively misled a pro se petitioner.

Spottsville, 476 F.3d at 1245. In Spottsville, we ruled that the pro se petitioner was

entitled to equitable tolling of his limitation period during the pendency of his

attempted appeal of the denial of his state habeas petition because the state habeas

court’s instruction affirmatively misled him to file his notice of appeal in the wrong

court and he otherwise had been diligent. Id. at 1245-46. However, any effort by

the state to assist a petitioner in post-conviction proceedings does not make it

accountable for a prisoner’s delay. Lawrence v. Florida, 549 U.S. 327, 337 (2007).

      In the alternative, “a credible showing of actual innocence may allow a

prisoner to pursue his constitutional claims (here, ineffective assistance of counsel)

on the merits notwithstanding the existence of a procedural bar to relief.”

McQuiggin v. Perkins, 569 U.S. 383, 392 (2013); Johnson v. Alabama, 256 F.3d

1156, 1171 (11th Cir. 2001). This exception “applies to a severely confined

category: cases in which new evidence shows it is more likely than not that no

reasonable juror would have convicted [the petitioner].” McQuiggin, 569 U.S. at

394–95 (quotation omitted). However, “a claim of ‘actual innocence’ is not itself a

constitutional claim, but instead a gateway through which a habeas petitioner must




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pass to have his otherwise barred constitutional claim considered on the merits.”

Herrera v. Collins, 506 U.S. 390, 404-05 (1993).

      Daniels argues that while his federal § 2254 petition was untimely, equitable

tolling is warranted because had he filed his requests for habeas relief in federal

court, rather than state court, his filings would have been timely. He says the state

courts should have realized and informed him that he needed to file his “petitions

for writ of habeas corpus” in federal court instead of state court since Florida does

not have a habeas corpus statute, and that the state courts erred by instead sua sponte

reclassifying his habeas petitions into Rule 3.850 motions and proceeding to rule.

He also faults the state courts for never appointing him counsel, and faults prison

officials for destroying his legal materials and inciting violence against him.

      We conclude, however, the district court did not err in determining that

Daniels failed to show entitlement to equitable tolling.          For starters, we are

unpersuaded by Daniels’ claims that the state courts’ failure to inform Daniels of

where to file his petitions amounted to an extraordinary circumstance. It was not the

responsibility of the state courts to inform Daniels where to file his petitions, neither

the state nor the state courts affirmatively misled Daniels as to where to file or

prevented him from timely filing a petition in the district court, and Florida law does

not suggest that his “petitions for writ of habeas corpus” necessarily were intended

to be federal habeas petitions. See Lawrence, 549 U.S. at 337; Spottsville, 476 F.3d


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at 1245; Baker v. State, 878 So. 2d 1236, 1241 (Fla. 2004). This is especially true

since Daniels explicitly asserted that his petitions were filed pursuant to Florida

statutes, rules of civil procedure, and constitutional provisions, making no mention

of § 2254 or other federal bases.

      But even assuming that Daniels filed his “petitions for writ of habeas corpus”

in the wrong court, it does not constitute an extraordinary circumstance. We do not

see how a mistake like this was beyond Daniels’ control or unavoidable. See

Sandvik, 177 F.3d at 1271. Further, Daniels waited almost two years in between

filing his “petition for writ of habeas corpus” in state court and filing his § 2254

petition in federal court, and has failed to establish a causal connection for the full

length of that delay. San Martin, 633 F.3d at 1267. On this record, we cannot say

that the state courts’ failure to inform Daniels of where to file his petitions amounted

to an extraordinary circumstance.

      As for Daniels’ argument that the state courts should have appointed counsel

to assist him with his filings, Florida law does not require courts to appoint counsel

in postconviction cases. See Fla. R. Crim. P. 3.850(f)(7) (providing, under Florida

law, that a post-conviction court has discretion to decide whether to appoint counsel

to a petitioner in Rule 3.850 proceedings). In any event, the Supreme Court has held

a pro se petitioner’s inexperience with the law is not a sufficient reason to amount

to an extraordinary circumstance. Johnson, 544 U.S. at 311.


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      As for Daniels’ argument that he could not file a timely federal petition

because prison officials took and/or destroyed his legal materials for two years

and/or incited violence against him, we again disagree. For one, his separation from

his legal materials does not constitute an extraordinary circumstance. Dodd, 365

F.3d at 1283-84. Moreover, he fails to allege specifically when he was separated

from his legal materials, what materials were taken from him, and how such

separation prevented him from timely filing his § 2254 petition. San Martin, 633

F.3d at 1267. He has also failed to allege when the officers incited violence, whether

their inciting violence prevented him from timely filing his § 2254 petition, or for

how long it prevented him from filing. Id.

      We also find no merit to Daniels’ claim that he is entitled to equitable tolling

on the basis of his actual innocence. Notably, he has produced no new evidence that

was not previously available to him. McQuiggin, 133 S. Ct. at 1928. Although he

briefly mentions new DNA evidence in a footnote, his passing reference does not

indicate what that evidence relates to, where it was discovered, when it was

discovered, or why it could not have been discovered previously, making his claim

insufficient. To the extent that Daniels’ arguments about other problems with his

state cases can be construed as supporting his actual innocence claim, they likewise

fail because he also has presented no new evidence as to these claims. Moreover,

his actual innocence argument instead appears to be more of a “freestanding claim[]


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of actual innocence,” and we’ve never held that these types of claims fall under the

actual innocence exception. Herrera, 506 U.S. at 404-05. Finally, to the extent that

any of Daniels’ remaining arguments can be construed as arguments regarding the

merits of his § 2254 claims, they are not before us, since the district court dismissed

his § 2254 petition as time-barred without reaching the merits.

      AFFIRMED.




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