              Case: 13-13071     Date Filed: 04/07/2015   Page: 1 of 12


                                                               [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-13071
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 3:12-cv-00096-CDL


GARY RAY SPEARS,

                                                                 Petitioner-Appellant,

                                        versus

WARDEN,

                                                               Respondent-Appellee.
                           ________________________

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

                                   (April 7, 2015)

Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:

      Gary Ray Spears, a Georgia prisoner represented by counsel on appeal,

appeals the district court’s denial of his pro se petition for a writ of habeas corpus,
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under 28 U.S.C. § 2254, as untimely filed under the one-year statute of limitations

of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L.

No. 104-132, 110 Stat. 1214 (1996). On appeal, Spears argues that he is entitled to

equitable tolling because (1) his plea counsel led him to believe he had no right to

an appeal; and (2) mental health issues, medication, and prison transfers prevented

him from timely filing a § 2254 petition. After careful review, we affirm.

                                            I.

      Spears was indicted in February 2010 on counts of murder, felony murder,

aggravated assault, aggravated battery, possession of a firearm during the

commission of a crime, and kidnapping. The State originally sought the death

penalty. Following plea negotiations, Spears pled guilty to a subset of these

offenses and was sentenced to life imprisonment without parole in March 2001.

He did not file a direct appeal.

      Before pleading guilty, Spears stated in his “petition to enter plea of guilty”

that he intended to plead “guilty but mentally ill.” See O.C.G.A. § 17–7–131

(explaining when a court may accept a “guilty but mentally ill” plea and defining

the term “mentally ill”). Spears’s present § 2254 petition reflects his belief that he

entered such a guilty plea. However, nothing in the guilty-plea transcript or the

trial court’s written judgment indicates that he pled “guilty but mentally ill.”




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      At Spears’s guilty-plea hearing, Spears’s counsel stated that Spears was

taking Zoloft and that he “had some psychological problems.” Spears told the

court that taking Zoloft did not affect his ability to understand what was going on.

Spears’s counsel also stated,

             [Spears] has chosen life and he has chosen to accept the
             responsibility for the tragedy and he knows because of
             this hope for redemption and his faith that he will be
             redeemed and that perhaps even though he is pleading to
             life without parole that one day he may be reunited with
             his family. There will be no trial and there will be no
             endless years of appeals and things like that . . . . It ends
             today and their wounds can begin to heal today . . . .

      In December 2007, Spears filed his first collateral challenge to his

conviction—a habeas-corpus petition in Georgia state court. He alleged claims of

ineffective assistance of counsel and challenged whether his guilty plea was

knowing and voluntary. At the state habeas evidentiary hearing, Spears’s former

counsel testified that he initially had considered an insanity defense for Spears.

However, counsel explained, a mental health expert evaluated Spears, and,

although the evaluation showed that Spears had “some anti-social disorders,” it did

not provide a sufficient basis for an insanity defense. Counsel also testified that he

believed based on numerous interactions and communications with Spears that

Spears was competent to enter a guilty plea. The state court denied Spears’s

habeas petition on October 7, 2011.



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      In June 2012, Spears filed the instant federal petition for a writ of habeas

corpus, under 28 U.S.C. § 2254, raising similar arguments to those that he made in

his state petition. In his § 2254 petition, Spears appears to concede that the petition

was untimely but asserts that the untimeliness may be excused because his counsel

misled him into believing that he had no right to an appeal, and because, once

convicted, he was transferred “from prison to prison in a state of psychotherapy

drug-induced near sedation.” The State moved to dismiss Spears’s § 2254 petition

as untimely filed.

      In response to the State’s motion to dismiss, Spears explained that he did not

seek information about his appeal or post-conviction rights for years following his

conviction because, based on his attorney’s statements at the guilty-plea hearing,

he did not believe that he had the right to appeal. In addition, Spears reiterated that

he “was transferred from prison to prison while drugged to near-sedation,” which,

he asserted, made it difficult to establish any connection with his fellow prisoners

and learn that his attorney was incorrect. In support, Spears also submitted prison

records showing that he had been transferred between prisons five times for

mental-health reasons from August 2001 to April 2002.

      Without holding an evidentiary hearing, a magistrate judge entered a report

and recommendation rejecting Spears’s arguments for equitable tolling and

recommending that his § 2254 petition be dismissed as untimely. The judge found


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that Spears had not established an extraordinary circumstance that prevented

timely filing and that Spears had not exercised due diligence because he provided

no explanation of his actions from the time of the guilty plea in 2001 until the time

that he filed for state post-conviction relief in 2007. The district court overruled

Spears’s pro se objections, adopted the magistrate judge’s report and

recommendation, dismissed Spears’s § 2254 as untimely, and denied a certificate

of appealability (“COA”). This appeal followed.

       This Court appointed Spears counsel and granted a COA on the following

issue: “Whether the district court erred in finding, without holding an evidentiary

hearing, that Mr. Spears was not entitled to equitable tolling for the filing of his

petition under 28 U.S.C. § 2254.”1

                                              II.

       We review de novo a district court’s dismissal of a petition for a writ of

habeas corpus. Drew v. Dep’t of Corr., 297 F.3d 1278, 1283 (11th Cir. 2002). We

likewise review de novo a district court’s legal decision on equitable tolling. Id.

       1
            The COA in this case is arguably defective because it does not “specify what
constitutional issue jurists of reason would find debatable.” Spencer v. United States, 773 F.3d
1137, 1138 (11th Cir. 2014) (en banc), petition for cert. filed, (U.S. Feb. 12, 2015) (No. 18-
8449). As we explained in Spencer, “[e]ven when a prisoner seeks to appeal a procedural error,
the certificate must specify the underlying constitutional issue.” Id. Although Spencer indicated
that this Court, going forward, would vacate COAs which do not specify the underlying
constitutional issue, id., the COA in this case was issued well before the decision in Spencer.
And given that the equitable-tolling issue has been fully briefed and neither party has addressed
whether the COA is defective, we exercise our discretion to resolve the issue specified in the
COA. See id. at 1137-38; Gonzalez v. Thaler, 132 S. Ct. 641, 649-52 (2012) (holding that a
defective COA does not deprive an appellate court of jurisdiction).
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However, we review for clear error the court’s determination of the relevant facts.

Id. In this regard, the district court’s determination regarding a party’s diligence is

a factual finding reviewed for clear error. Id. Finally, we review for an abuse of

discretion a district court’s decision whether to conduct an evidentiary hearing on

an equitable-tolling claim. Id.

                                          III.

      Under the AEDPA, § 2254 habeas petitions are subject to a one-year statute

of limitations that begins to run on the latest of four triggering events. See 28

U.S.C. § 2244(d)(1).     Here, the relevant trigger was “the date on which the

judgment became final by the conclusion of direct review or the expiration of the

time for seeking review.” Id. § 2244(d)(1)(A). There is no dispute that Spears’s

§ 2254 petition was filed beyond the one-year time limit.

      However, the district court may still review the merits of an untimely § 2254

petition if the petitioner shows that he is entitled to equitable tolling. San Martin v.

McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011). To do so, a petitioner must show

“(1) that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way and prevented timely filing.” Holland v. Florida,

560 U.S. 631, 649, 130 S. Ct. 2549, 2562 (2010) (internal quotation marks

omitted). In proving an “extraordinary circumstance,” a petitioner must “show a

causal connection between the alleged extraordinary circumstances and the late


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filing of the petition.”       San Martin, 633 F.3d at 1267.               The extraordinary

circumstance must be “unavoidable even with diligence.” See Sandvik v. United

States, 177 F.3d 1269, 1271-72 (11th Cir. 1999).                 The diligence required is

“reasonable diligence, not maximum feasible diligence.” San Martin, 633 F.3d at

1267 (internal quotation marks omitted). The petitioner has the burden of proving

that circumstances justify applying the equitable-tolling doctrine. 2 Id. at 1268.

       Here, the district court did not err in finding, without holding an evidentiary

hearing, that Spears was not entitled to equitable tolling for the filing of his § 2254

petition. First, Spears has not shown that his attorney’s misleading advice that he

did not have the right to an appeal was an extraordinary circumstance that affected

his ability to file a timely § 2254 petition. See San Martin, 633 F.3d at 1267. To

the extent that Spears contends that his counsel was negligent in misadvising him,

we are bound by our precedent holding that “attorney negligence, however gross or

egregious, does not qualify as an ‘extraordinary circumstance’ for purposes of

equitable tolling.” Cadet v. Fla. Dep’t of Corr., 742 F.3d 473, 481 (11th Cir.




       2
          Spears’s counsel “questions whether the Eleventh Circuit’s formulation of his burden
survives Holland.” There is no question. Both Holland and our cases applying Holland clearly
place the burden of establishing entitlement to equitable tolling on the petitioner. Holland, 560
U.S. at 649, 130 S. Ct. at 2562; see, e.g., San Martin, 633 F.3d at 1267-68. The Court in
Holland, in deciding whether § 2244(d)(1) was subject to equitable tolling, explained that there
is a general presumption that non-jurisdictional federal statutes of limitations are subject to
equitable tolling. Holland, 560 U.S. at 646, 130 S. Ct. at 2560-61. But Holland does not suggest
that federal courts should presume that a specific petitioner is entitled to equitable tolling.
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2014). Therefore, even assuming that his attorney was negligent, equitable tolling

would not be warranted on that basis.

      Spears also has not shown how his attorney’s misleading advice regarding

his appellate rights prevented him from timely filing a § 2254 petition.           See

Holland, 560 U.S. at 649, 130 S. Ct. at 2562. While we understand why Spears

might have chosen to rely on his counsel’s advice, he had the ability to choose not

to rely upon it. We have stated that “pro se litigants, like all others, are deemed to

know of the one-year statute of limitations.” Outler v. United States, 485 F.3d

1273, 1282 n.4 (11th Cir. 2007) (concerning the one-year limitation period for

motions by federal prisoners under 28 U.S.C. § 2255). And we have not accepted

a lack of a legal education as an excuse for a failure to file in a timely fashion. See

Rivers v. United States, 416 F.3d 1319, 1323 (11th Cir. 2005) (stating that

“procedural ignorance [has never been accepted] as an excuse for prolonged

inattention when a statute’s clear policy calls for promptness” (quoting Johnson v.

United States, 544 U.S. 295, 311, 125 S. Ct. 1571, 1582 (2005)).

      Nonetheless, even assuming, arguendo, that Spears was able to show that his

attorney’s misleading advice constituted an extraordinary circumstance that

prevented him from filing both a direct appeal and a timely § 2254 motion, Spears

has failed to show he was reasonably diligent in pursuing his rights, as explained




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below. Before reaching the question of due diligence, however, we first address

Spears’s other alleged extraordinary circumstance.

      Regarding Spears’s allegations about his mental incapacity and prison

transfers, some basis exists for concluding that Spears was prevented from timely

filing a § 2254 petition by extraordinary circumstances for some period of time.

Spears specifically alleged that he “was transferred from prison to prison while

drugged to near-sedation.” While this allegation is fairly conclusory, the prison-

transfer form offers some support, indicating that he was transferred five times for

mental health reasons during the AEDPA limitation period. And several of the

transfers were in quick succession. Over roughly a three-month period, from

January 18, 2002, to April 11, 2002, Spears was transferred four times for mental-

health reasons. Based on these facts, the period in which Spears was “drugged to

near-sedation” and transferred between prisons may constitute an exceptional

circumstance for purposes of equitable tolling because it would have been outside

of his control and unavoidable even with due diligence. See Sandvik, 177 F.3d at

1271-72. But see Dodd v. United States, 365 F.3d 1273, 1282-83 (11th Cir. 2004)

(indicating that equitable tolling is inapplicable for periods of lockdown or for

routine prison transfers).

      But Spears’s remaining allegations of mental incapacity are insufficient to

show a causal connection to his untimely filing. “[M]ental impairment is not per


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se a reason to toll a statute of limitations.” Hunter v. Ferrell, 587 F.3d 1304, 1308

(11th Cir. 2009). Rather, the alleged impairment must have affected Spears’s

ability to file a timely habeas petition. Id.; see Lawrence v. Florida, 421 F.3d

1221, 1226-27 (11th Cir. 2005). In Lawrence, we concluded that a petitioner’s

allegations that his full-scale IQ was 81 and that he had “suffered from mental

impairments his entire life” alone were insufficient to justify equitable tolling

because they did not establish a “causal connection between his alleged mental

incapacity and his ability to file a timely petition.” 421 F.3d at 1226-27. By

contrast, in Hunter, we found that an evidentiary hearing was necessary where the

petitioner’s evidence of his significant, irreversible mental retardation and

illiteracy raised a factual issue as to whether his mental impairment affected his

ability to timely file a federal petition. 587 F.3d at 1309-10. Here, the record

indicates that Spears has some history of mental-health issues and medication, but,

as in Lawrence, Spears has not explained how his mental-health issues or

medication, apart from the drug-induced prison transfers, affected his ability to file

a timely petition.

      Yet even if Spears had established an extraordinary circumstance, as

explained above, “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). Here, the magistrate judge found that Spears


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did not exercise due diligence because “nothing in the record indicat[ed] that

Petitioner attempted to pursue his rights until 2007.” The district court adopted

this finding. We review this factual determination for clear error, and Spears has

offered no reason to conclude that this determination lacks substantial evidence in

the record. See Drew, 297 F.3d at 1289-90.

      Looking only at the period between what appears to be Spears’s last prison

transfer in April 2002 (to Hays State Prison, where he was incarcerated at the time

of his state habeas petition) and the filing of Spears’s petition for a writ of habeas

corpus in state court in December 2007, Spears has not alleged that he took any

action to pursue his rights. Rather, he explained that he did not seek information

about his appeal or post-conviction rights for years following his conviction

because he believed that he did not have the right to appeal. But, as explained

previously, procedural ignorance is not an excuse for prolonged inattention when a

statute calls for prompt action. See Rivers, 416 F.3d at 1323. While it may be true,

as Spears’s counsel argues, that any assessment of what is “reasonable” diligence

must take into account Spears’s mental illnesses and the fact that he was told that

he could not appeal, the record supports the district court’s finding that Spears did

not exercise reasonable diligence because he took no action to pursue his rights

until 2007.




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      Finally, we are satisfied that the district court did not abuse its discretion in

failing to hold an evidentiary hearing on equitable tolling. In Drew, this Court

explained that the decision as to whether to hold an evidentiary hearing on

equitable tolling is committed to the sound discretion of the district court because

§ 2244 “does not require a hearing on the issue of time-bar or equitable tolling.”

Drew, 297 F.3d at 1292. While an evidentiary hearing may be necessary where

material facts are in dispute, an evidentiary hearing is not required where no basis

exists to believe that further inquiry would help the petitioner prove entitlement to

equitable tolling. San Martin, 633 F.3d at 1271-72; Drew, 297 F.3d at 1292. Here,

Spears has offered no reason to believe, by way of allegations or supporting

evidence, that further inquiry by the district court would help him prove that he

pursued his rights diligently.

      Accordingly, the district court did not err in finding, without holding an

evidentiary hearing, that Spears was not entitled to equitable tolling for the filing

of his § 2254 petition.     We therefore affirm the district court’s dismissal of

Spears’s § 2254 petition as time barred.

      AFFIRMED.




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