                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-13694                ELEVENTH CIRCUIT
                                                          FEBRUARY 17, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                               CLERK

                  D. C. Docket No. 08-02004-CV-TWT-1

SHERWIN PERKINS,



                                                         Petitioner-Appellant,

                                  versus

THOMAS AMMONS,

                                                        Respondent-Appellee.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                            (February 17, 2010)

Before TJOFLAT, BIRCH and WILSON, Circuit Judges.

PER CURIAM:
      Sherwin S. Perkins, a pro se Georgia prisoner, appeals the district court’s

dismissal of his federal habeas corpus petition, brought under 28 U.S.C. § 2254, as

time-barred by the one-year statute of limitations of the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), Pub.L.No. 104-132, 110 Stat. 1214

(1996). Because Perkins has not shown that the district court erred in determining

that he had not demonstrated either that he was diligent or that extraordinary

circumstances prevented the timely filing of his habeas petition, equitable tolling

does not apply. Accordingly, we AFFIRM.

                                I. BACKGROUND

      In June 2008, Perkins executed his pro se § 2254 habeas petition, raising

several constitutional claims. R1-1 at 7-16 and 22. In this petition, Perkins

admitted that his state judgment of conviction became final over one year prior to

the filing of his habeas petition, but stated that he filed (1) a motion to withdraw

his guilty plea and resume trial in October 2005, and (2) a motion for a new trial in

December 2005, both of which the DeKalb County Superior Court failed to

respond to. R1-1 at 21. Perkins also stated that he filed a state habeas petition in

October 2006, as well as an application for probable cause with the Georgia

Supreme Court, that were denied. Id. Therefore, Perkins claimed, he had no




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further state remedies available to him and was entitled to habeas relief. Id. at 21-22.

      The state responded that the district court should dismiss Perkins’s petition

as untimely because (1) it was not filed within one year after the state conviction

became final pursuant to 28 U.S.C. § 2244(d)(1)(A), (2) neither statutory nor

equitable tolling applied to render Perkins’s petition timely, and (3) he filed it 82

days late. R1-5 at 1-2; R1-5-2 at 1-6. A review of the state’s exhibits reveals that

Perkins pleaded guilty in August 2005 in DeKalb County Superior Court to

various child abuse and sexual assault charges. R1-7-2 at 1. The following

month, Perkins sent a letter to the superior court attempting to withdraw his guilty

plea. R2-15-2. Perkins executed a state habeas corpus petition in October 2006

that was denied 11 months later, and an application for a certificate of probable

cause to appeal with the Supreme Court of Georgia that was denied in January

2008. R1-7-2 at 1-5; R1-7-3 at 50, 53, 55.

      Following the state’s response and motion to dismiss, the magistrate judge

ordered the parties to supplement the record with additional state court records in

order to determine whether statutory tolling applied. R1-10; R2-13. Perkins also

submitted a reply brief in which he argued in part that (1) he had asked his counsel

to file plea withdrawal motions and his counsel never acknowledged these

requests, and (2) he had exercised due diligence by submitting at least one letter

                                           3
seeking to withdraw his plea. R2-19 at 3-5. The magistrate judge then issued a

report and recommendation, recommending that the habeas petition be dismissed

as untimely because Perkins had filed it 102 days late. R2-20-2 at 1, 5. The

magistrate judge determined that because Perkins did not attempt to “demonstrate

either that he was diligent or that extraordinary circumstances prevented timely

filing of his habeas petition,” there was no basis for equitable tolling. Id. at 5-6.

The magistrate judge rejected Perkins’s argument that the filing of his letters

seeking withdrawal of his guilty plea statutorily tolled the federal limitations

period. Id. at 6-7.

      Perkins objected to the recommendation, arguing, inter alia, that (1) he

made good faith attempts to comply with state law requirements and exercised due

diligence and showed extraordinary circumstances in trying to exhaust his state

remedies in a timely manner, (2) his defense counsel abandoned him when he

sought her assistance in withdrawing his plea, (3) the superior court failed to

respond to his September 2005 letter in which he sought to withdraw his plea, and

(4) he suffered an impediment due to the superior court’s failure to respond to his

letters and the state’s deliberate delay in responding to his motions. R2-23 at 1-8.

Over Perkins’s objections, the district court adopted the report and

recommendation, agreeing that Perkins’s § 2254 petition was not filed within the

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one-year statute of limitation period, and dismissed the petition as untimely. R2-

25, R2-26.

      In his petition for a certificate of appealability (“COA”), Perkins noted that

he was disabled, although he did not specify the nature of his disability, and

argued that he was entitled to equitable and statutory tolling. R2-29 at 2, 4-7.

Perkins also argued that the federal district court erred in failing to rule on his

constitutional claims. Id. at 6. In his amendment to the COA, Perkins argued,

inter alia, that the district court erred in refusing to equitably toll the limitations

period because he diligently pursued habeas relief and his attorney abandoned

him. R2-32 at 2-4. The district court granted a COA on the limited issue of

whether Perkins was entitled to equitable tolling of the one-year statute of

limitations. R2-35.

                                   II. DISCUSSION

      Perkins notes in his brief to us that he is disabled, but again fails to indicate

the nature of his disability. Perkins argues that he filed two motions to withdraw

his plea with the DeKalb County Superior Court and that the court never

responded to either of these motions. He also states that he filed a motion for a

new trial. According to Perkins, these motions are still pending and will

statutorily toll the one-year statute of limitations, and he should have received an

                                            5
evidentiary hearing on the tolling issue. Based on these motions, he argues that he

made good faith attempts to seek state remedies and that equitable tolling is

appropriate because of extraordinary circumstances that were beyond his control

and unavoidable even with his diligence. Perkins also contends that equitable

tolling is appropriate because his attorney’s misconduct in failing to file a direct

appeal reached the level of “utter abandonment,” and the state’s conduct in

delaying the exhaustion of his state remedies warrants tolling. Appellant’s Brief at

8. According to Perkins, the state failed to present the appropriate records to the

district court or to him, but he does not specify what records should have been

produced. Perkins also raises various constitutional challenges to his convictions.

      Appellate review is limited to the issues specified in the COA. Murray v.

United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998). Moreover, arguments not

clearly raised in an appellate brief are abandoned and we will address them. See

Jones v. Campbell, 436 F.3d 1285, 1303 (11th Cir. 2006) (citations omitted).

      A district court’s decision to dismiss a petition for a writ of habeas corpus is

reviewed de novo. Drew v. Dep’t of Corr., 297 F.3d 1278, 1283 (11th Cir. 2002).

We also review de novo the district court’s decision to deny equitable tolling. Id.

However, we review a district court’s determination of the relevant facts,

including those related to a petitioner’s diligence, for clear error. Id. “This

                                           6
standard requires us to affirm a district court’s findings of fact unless the record

lacks substantial evidence to support that determination.” Id. (quotation omitted).

Finally, we review a habeas court’s decision as to “whether to conduct an

evidentiary hearing on an equitable tolling claim for an abuse of discretion.” Id.

      The AEDPA imposes a one-year statute of limitations for the filing a § 2254

habeas petition, that begins to run following one of four events, including “the

date on which the judgment became final . . . .” 28 U.S.C. § 2244(d)(1). In rare

circumstances, “[e]quitable tolling can be applied to prevent the application of the

AEDPA’s statutory deadline . . . .” Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th

Cir. 2009) (quoting Helton v. Sec’y for Dep’t of Corr., 259 F.3d 1310, 1312 (11th

Cir. 2001)). Equitable tolling is “an extraordinary remedy” that is reserved for

“exceptional circumstances” and “typically applied sparingly.” Id. (quotation

omitted). We have characterized the equitable tolling standard as a two-part test,

stating that “equitable tolling is available only if a petitioner establishes both

extraordinary circumstances and due diligence.” Diaz v. Sec’y for Dep’t of Corr.,

362 F.3d 698, 702 (11th Cir. 2004) (expressly refusing to consider Diaz’s

extraordinary-circumstances argument in light of his unexplained 532-day delay in

filing his § 2254 petition) (emphasis in original).




                                           7
      “Attorney negligence, even gross negligence, does not warrant equitable

tolling.” Melson v. Allen, 548 F.3d 993, 1001 (11th Cir. 2008), cert. denied, 130

S.Ct. 254 (2009). “There must be an allegation and proof of bad faith, dishonesty,

divided loyalty, mental impairment or so forth on the lawyer’s part in order for a

court to find there was such egregious attorney misconduct that a petitioner is

entitled to equitable tolling.” Id. (quotation omitted). An attorney’s

miscalculation of the limitations period or misinterpretation of § 2244(d)(1) does

not constitute an extraordinary circumstance sufficient to warrant equitable tolling.

Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000). The petitioner bears the

burden of showing that equitable tolling is warranted. Drew, 297 F.3d at 1286-87.

      Only in two situations have we held that equitable tolling applied. In

Spottsville v. Terry, 476 F.3d 1241, 1245-46 (11th Cir. 2007), we held that the late

filing of the petitioner’s application for a certificate of probable cause (“CPC”)

with the Georgia Supreme Court was not the petitioner’s fault, but rather due to

the incorrect filing instructions given to him by a Georgia superior court, and thus

he was entitled to equitable tolling for the time when his application for a CPC

was in the wrong court. In Knight v. Schofield, 292 F.3d 709, 710-11 (11th Cir.

2002), we applied equitable tolling when Knight received an assurance from the

Georgia Supreme Court clerk that he would be notified when the court ruled on his

                                          8
state postconviction motion, but the court failed to notify Knight when it ruled,

and the AEDPA’s one-year limitation period lapsed while he was waiting.

      As an initial matter, appellate review of Perkins’s claims is limited to the

issue of whether Perkins is entitled to equitable tolling of the one year statute of

limitations. Murray, 145 F.3d at 1250-51; (R2-35). Thus, we will not consider

Perkins’s argument regarding statutory tolling because that issue is beyond the

scope of this appeal. See Murray, 145 F.3d at 1250-51. Likewise, we will not

consider Perkins’s constitutional claims because those too are beyond the scope of

this appeal. Murray, 145 F.3d at 1250-51.

      Further, a number of Perkins’s arguments are not adequately briefed on

appeal. Perkins first presents a conclusory claim that he is disabled, but fails to

specify the nature of his disability or how this alleged disability prevented him

from timely filing his petition. Therefore, any claim as to Perkins’s disability is

deemed abandoned. See Jones, 436 F.3d at 1303. Perkins further argues that the

state caused a delay in the exhaustion of his state remedies, but does not clarify

how the state caused this alleged delay or how such a delay resulted in his failure

to timely file his § 2254 petition. Therefore, this claim as to state-caused delay

also is deemed abandoned. See Jones, 436 F.3d at 1303. Finally, Perkins’s

contention that the state failed to present the appropriate records to him or to the

                                           9
district court is conclusory because he fails to specify what records should have

been produced and does not argue how those records would have shown his

entitlement to equitable tolling. Therefore, this claim too is deemed abandoned.

See Jones, 436 F.3d at 1303.

      On the merits of his equitable tolling claim, because Perkins has not shown

“both extraordinary circumstances and due diligence,” he has failed to establish

entitlement to equitable tolling. Diaz, 362 F.3d at 701. Even assuming that

Perkins’s filing of his letters in state court and his attempt to seek the assistance of

his attorney in filing a direct appeal constituted due diligence, Perkins has not

shown that extraordinary circumstances beyond his control prevented him from

filing his habeas petition in a timely manner. Perkins blames his attorney for his

failure to timely file a § 2254 petition, but none of Perkins’s assertions of gross

attorney misconduct, even if true, rise to the level of egregious misconduct

warranting equitable tolling. See Melson, 548 F.3d at 1001. The fact that

Perkins’s attorney did not respond to his alleged request to file a plea withdrawal

motion or a direct appeal is insufficient to equitably toll the limitations period.

See id. Moreover, Perkins has not alleged that he was affirmatively misled by

either a Georgia state court or a federal court regarding how to timely file a state

tolling motion or a federal habeas petition. See Spottsville, 476 F.3d at 1245-46;

                                           10
Knight, 292 F.3d at 711; See R1-1; R2-29. On this record, no extraordinary

circumstances existed to prevent Perkins from timely filing his habeas petition.

Finally, Perkins’s argument that he should have received an evidentiary hearing is

without basis. Even if Perkins could demonstrate that his attorney committed

misconduct or that his letters seeking to withdraw his guilty plea constituted

motions that would justify equitable tolling, he has not offered any reason to

believe that an evidentiary hearing would help him prove that extraordinary

circumstances prevented him from timely filing his § 2254 petition. See Drew,

297 F.3d at 1292. Therefore, the district court did not abuse its discretion in

deciding not to hold a hearing.

                                  III. CONCLUSION

      Because Perkins has failed to demonstrate that the district court erred in

determining that he had not shown either that he was diligent or that extraordinary

circumstances prevented the timely filing of his habeas petition, his claim of

equitable tolling fails. Accordingly, we AFFIRM.




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