Clyde Bernard Johnson, II v. USA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12000
Non-Argument Calendar
____________________
CLYDE BERNARD JOHNSON, II,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cv-02280-JDW-TGW
____________________
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2 Opinion of the Court 21-12000
Before J ORDAN, NEWSOM , and BLACK , Circuit Judges.
PER CURIAM:
Clyde Bernard Johnson II, a counseled federal prisoner, ap-
peals the district court’s dismissal of his
pro se motion under
28 U.S.C. § 2255 as untimely.1 Johnson does not contest the time-
liness of his motion. His motion was based on
United States v. Da-
vis, 139 S. Ct. 2319, 2336 (2019), and he filed the motion on Sep-
tember 20, 2020, more than one year after the Supreme Court is-
sued
Davis on June 24, 2019. Thus, his motion was untimely as it
was filed outside the Antiterrorism and Effective Death Penalty
Act’s (AEDPA) one-year limitation period. 28 U.S.C. § 2255(f)(3).
Instead, Johnson contends the district court erred in denying his
motion without an evidentiary hearing as he could have shown he
was entitled to equitable tolling.
The AEDPA’s limitation period may be equitably tolled, but
the movant must show “(1) that he has been pursuing his rights
1 The district court granted a certificate of appealability, finding that reasona-
ble jurists could disagree with its procedural rulings and find that Johnson ad-
equately raised actual innocence to excuse his untimely filing, that he was ac-
tually innocent of his 18 U.S.C. § 924(c) offense, and that he did not have to
prove he was actually innocent of Hobbs Act robbery. However, Johnson has
abandoned the certified question of whether actual innocence excuses his un-
timely filing, as he does not address any aspect of actual innocence in his brief.
See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682-83 (11th Cir. 2014)
(explaining an appellant abandons an issue on appeal by failing to address it in
his opening brief).
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21-12000 Opinion of the Court 3
diligently, and (2) that some extraordinary circumstance stood in
his way and prevented timely filing.”
Holland v. Florida, 560 U.S.
631, 649 (2010) (quotation marks omitted). Equitable tolling “is an
extraordinary remedy which is typically applied sparingly.”
Dodd
v. United States, 365 F.3d 1273, 1282 (11th Cir. 2004) (quotation
marks omitted). The focus of the “extraordinary circumstances”
inquiry is “on the circumstances surrounding the late filing of the
habeas petition . . . and whether the conduct of others prevented
the petitioner from timely filing.”
Arthur v. Allen, 452 F.3d 1234,
1253 (11th Cir. 2006) (quotation marks and citation omitted). The
petitioner has the burden of showing that his circumstances justify
equitable tolling.
Dodd, 365 F.3d at 1282.
In
Dodd, this Court declined to extend equitable tolling to a
prisoner who argued he was entitled to tolling for his § 2255 mo-
tion because the statute of limitations began running in June 1999
and he was detained in a facility without access to his legal papers
between October 1999 and September 2000.
Id. at 1281-83. This
Court determined his circumstances were not extraordinary be-
cause he did not show his detention was unconstitutional or inap-
propriate or that the transfer of a prisoner to a different facility was
not a routine practice.
Id. at 1283. This Court held he did not dili-
gently pursue his rights, either, as he (1) “had nearly
five additional
months with no impediments” after the right under which he
sought relief was established before he lost access to his legal pa-
pers, (2) did not request that his papers be sent to him, (3) did not
attempt to contact counsel to assist him with timely filing his
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4 Opinion of the Court 21-12000
motion, and (4) did not take any other specific actions that would
suggest reasonable diligence under the circumstances.
Id. (empha-
sis in original).
DISCUSSION
Specifically, Johnson asserts he was entitled to equitable toll-
ing because (1) he suffered from renal failure, requiring dialysis
three days per week; (2) COVID-19 caused prison lockdowns, ef-
fectively eliminating any opportunity for him to timely file his mo-
tion; and (3) the American Leading Edge Research Team (ALERT)
caused him to incorrectly file his § 2255 motion in the Western Dis-
trict of Missouri.
Johnson did not establish a sufficient basis for equitable toll-
ing. First, Johnson was able to file pleadings in the Western District
of Missouri, albeit incorrectly in that court, and petition this Court
to allow him to file his § 2255 motion. Johnson has not explained
how he was able to file those documents during the one-year limi-
tation period, but not timely file his § 2255 motion. Although he
argues his dialysis prevented him from filing documents three days
a week, he did not explain before the district court, and does not
explain on appeal, why he could not file his § 2255 motion on other
days. He also did not explain to the district court when he began
his dialysis treatments, so he did not show that his dialysis treat-
ments “stood in his way and prevented timely filing.”
See Holland,
560 U.S. at 649. The same is true of his argument regarding
COVID-19 prison lockdowns. In addition to this Court’s precedent
stating that lack of access to legal materials for part of the statute of
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21-12000 Opinion of the Court 5
limitations does not merit equitable tolling, Johnson did not show
why he did not file, and could not have filed, his § 2255 motion
before the lockdowns began in February 2020, over seven months
after
Davis was issued.
See Dodd, 365 F.3d at 1281-83.
As to the American Leading Edge Research Team (ALERT)
issue, Johnson and ALERT represented that he was proceeding
pro
se during the timeframe that he was communicating with ALERT.
He does not argue that ALERT committed some form of miscon-
duct that could qualify as more than “egregious negligence,” so he
has not shown any misconduct ALERT may have committed could
have triggered equitable tolling.
See Cadet v. Fla. Dep’t of Corr.,
853 F.3d 1216, 1227 (11th Cir. 2017) (stating “attorney negligence,
even gross or egregious negligence, does not by itself qualify as an
‘extraordinary circumstance’ for purposes of equitable tolling”).
The district court did not err in determining Johnson’s mo-
tion was time-barred, and it did not abuse its discretion in deciding
not to hold an evidentiary hearing, as the case files and record
showed he did not demonstrate any arguable basis showing he
might be entitled to equitable tolling.
See Winthrop-Redin v.
United States, 767 F.3d 1210, 1215 (11th Cir. 2014) (stating a district
court abuses its discretion in denying an evidentiary hearing “if it
applies an incorrect legal standard, applies the law in an unreason-
able or incorrect manner, follows improper procedures in making
a determination, or makes findings of fact that are clearly errone-
ous”). Accordingly, we affirm.
AFFIRMED.
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