Markel Latrae Bass v. Secretary, Florida Department of Corrections

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10985
Non-Argument Calendar
____________________
MARKEL LATRAE BASS,
Petitioner-Appellant,
versus
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondent,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
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2 Opinion of the Court 20-10985
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:19-cv-00141-MCR-CAS
____________________
Before R OSENBAUM , BRANCH , and GRANT, Circuit Judges.
PER CURIAM:
Markel Bass, a Florida prisoner proceeding
pro se, appeals
the district court’s dismissal of his 28 U.S.C. § 2254 federal habeas
petition as time-barred by the one-year statute of limitations
established by the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”). The district court also determined that Bass
was not entitled to equitable tolling of the limitations period. We
granted a certificate of appealability on the following issue:
“[w]hether the district court erred in its determination that Bass
was not entitled to equitable tolling of the statute of limitations
period.” After review, we affirm.
I. Background
In June 2012, Bass was convicted by a jury of second-degree
murder and robbery with a firearm and sentenced to a term of life
imprisonment for each count.
After pursuing a direct appeal and state postconviction
relief, Bass filed a twenty-page § 2254 habeas petition on May 17,
2019. He filed an amended § 2254 petition on June 27, 2019. The
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20-10985 Opinion of the Court 3
State filed a motion to dismiss the § 2254 petition as untimely,
arguing that Bass’s one-year statute of limitations period under
AEDPA expired on April 8, 2019, and, therefore, Bass’s § 2254
initial and amended petitions were time-barred. In reply, Bass
acknowledged his § 2254 petition was untimely, but argued that
(1) because of Hurricane Michael in October 2018 and his
subsequent prison transfer following the hurricane, he did not
have access to his legal paperwork until January 2019 and (2) he
had limited access to the law library, which warranted equitable
tolling.
A magistrate judge issued a report and recommendation
(“R&R”), recommending granting the State’s motion to dismiss
the § 2254 petition as untimely. The magistrate judge determined
that Bass’s one-year statute of limitations for filing a timely § 2254
petition expired on April 8, 2019, and, therefore, his § 2254
petition filed May 17, 2019, was untimely. The magistrate judge
further concluded lockdowns and periods in which a prisoner
cannot access legal documents do not constitute extraordinary
circumstances for purposes of equitable tolling. Moreover, the
magistrate judge noted that Bass stated that he received his legal
paperwork in January 2019, which left him almost three months
to file a timely § 2254 petition, but he failed to do so.
Accordingly, the magistrate judge determined that equitable
tolling was not warranted.
Bass objected to the R&R, arguing that he established a
basis for equitable tolling. The district court adopted the R&R,
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4 Opinion of the Court 20-10985
denied Bass a certificate of appealability, and dismissed the § 2254
petition as untimely. As noted previously, we granted Bass a
certificate of appealability on the equitable tolling issue.
II. Discussion
Bass argues that, due to Hurricane Michael in October
2018, his subsequent prison transfer following the hurricane
which resulted in an inability to access his legal documents, and
because of his limited access to the law library, equitable tolling of
AEDPA’s one-year statute of limitations is warranted.
“We review the district court’s determination that
equitable tolling is inapplicable de novo.”
Steed v. Head, 219 F.3d
1298, 1300 (11th Cir. 2000).
Under AEDPA, § 2254 petitions are governed by a one-year
statute of limitations period that, as relevant here, begins to run
on “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The one-year
federal limitations period is statutorily tolled during times in
which a “properly filed application” for state post-conviction relief
is pending. 28 U.S.C. § 2244(d)(2).
AEDPA’s limitations period may be equitably tolled, but
the movant 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 (2010) (quotation omitted). To show diligence, a movant
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20-10985 Opinion of the Court 5
must show that an effort was made to determine the limitations
period and must show how the alleged extraordinary
circumstance “thwarted his efforts” to file a timely petition.
Arthur v. Allen, 452 F.3d 1234, 1253 (11th Cir. 2006) (quotation
omitted). A prisoner is required to demonstrate “reasonable
diligence, not maximum feasible diligence.”
San Martin v.
McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011). The movant must
“show a causal connection between the alleged extraordinary
circumstances and the late filing of the petition.”
Id. Equitable
tolling is “an extraordinary remedy [that] is typically applied
sparingly.”
Arthur, 452 F.3d at 1252 (quotation omitted).
Although Hurricane Michael in October 2018 was certainly
out of Bass’s control, he failed to establish a causal connection
between the hurricane and the filing of his § 2254 petition seven
months later in May 2019. Although he argues that, due to the
hurricane, he was transferred and did not have access to his legal
paperwork for three months, we have held generally that periods
of time in which a prisoner is separated from his legal papers do
not constitute extraordinary circumstances.
Dodd v. United
States, 365 F.3d 1273, 1283–84 (11th Cir. 2004). Furthermore, the
record establishes that Florida’s First District Court of Appeal
affirmed the denial of his state motion for postconviction relief on
June 7, 2018, almost five months before the hurricane.
See Bass v.
State, 250 So. 3d 1 (Fla. 1st DCA 2018) (table). Although Bass filed
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a motion for rehearing from that ruling,1 that does not change the
fact that, for almost five months prior to the hurricane, he was
aware that he had been denied postconviction relief in the state
court and he had his legal paperwork and could have started
preparing his § 2254 petition.
Moreover, even setting aside those five months, Bass stated
that following his prison transfer after the hurricane, he received
his legal paperwork in January 2019, which left him almost three
months in which to file a timely § 2254 petition. And he has not
explained why he could not have filed a timely § 2254 petition
between January 2019 and April 8, 2019, particularly in light of the
fact that his § 2254 claims were nearly identical to the ones he
raised in his prior state court proceedings.
See Dodd, 365 F.3d at
1283 (concluding equitable tolling not warranted where petitioner
failed to make any “specific efforts to file his motion within the
established limitations period, either in the five months before he
was transferred . . . or in the seven months after his return to his
facility”). Finally, although Bass may have had limited access to
the law library, we have held that no access or limited access to a
law library does not qualify as an extraordinary circumstance to
warrant equitable tolling.
Atkins v. United States, 204 F.3d 1086,
1089–90 (11th Cir. 2000). Accordingly, the district court did not
err in concluding that equitable tolling was not warranted.
AFFIRMED.
1 The motion for rehearing was denied July 26, 2018.
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