Rolandas Milinavicius v. Commissioner, Georgia Department of Corrections

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11570
Non-Argument Calendar
____________________
ROLANDAS MILINAVICIUS,
Petitioner-Appellant,
versus
COMMISSIONER, GEORGIA DEPARTMENT OF
CORRECTIONS,
Respondent-Appellee,
ATTORNEY GENERAL, STATE OF GEORGIA,
Respondent.
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2 Opinion of the Court 22-11570
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-01815-MHC
____________________
Before JILL PRYOR, BRANCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Rolandas Milinavicius, a Georgia prisoner, appeals
the district court’s dismissal of his 28 U.S.C. § 2254 habeas corpus
petition as time-barred. This court granted a certificate of appeal-
ability (“COA”) on the issue of “[w]hether the district court erred
by granting the motion to dismiss Milinavicius’s petition as time-
barred because a petitioner’s inability to speak English fluently can-
not serve as a basis for equitable tolling of the AEDPA’s one-year
filing deadline.” In addition to this issue, Milinavicius argues that
the district court erred in failing to hold an evidentiary hearing on
the issue of equitable tolling and that this inquiry is inherent in the
COA. Having read the parties’ briefs and reviewed the record, we
affirm the district court’s order dismissing Milinavicius’s habeas pe-
tition.
I.
We review de novo the district court’s dismissal of a § 2254
petition as untimely. See Damren v. Florida, 776 F.3d 816, 820 (11th
Cir. 2015). We also review de novo the district court’s decision on
equitable tolling. San Martin v. McNeil, 633 F.3d 1257, 1265 (11th
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22-11570 Opinion of the Court 3
Cir. 2011). However, a district court’s determinations as to the rel-
evant facts are reviewed for clear error, and we will affirm the find-
ings of fact unless the record lacks substantial evidence to support
those findings. Id. The habeas petitioner bears the burden of prov-
ing the circumstances that justify the application of equitable toll-
ing. Id. at 1268
II.
To be entitled to equitable tolling, a petitioner must show
that: (1) he pursued his rights diligently; and (2) some “extraordi-
nary circumstance” prevented a timely filing. Holland v. Florida,
560 U.S. 631, 649, 130 S. Ct. 2549, 2562 (2010). Equitable tolling is
an extraordinary remedy that is limited to “rare and exceptional
circumstances.” Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir.
2009) (citation omitted). For equitable-tolling purposes, only rea-
sonable diligence is required, not “maximum feasible diligence.”
Holland, 560 U.S. at 653, 130 S. Ct. at 2565. To show extraordinary
circumstances, a defendant must show a “causal connection be-
tween the alleged extraordinary circumstances and the late filing of
the petition.” San Martin, 633 F.3d at 1267.
In United States v. Montano, we stated that difficulty with the
English language alone does not amount to an extraordinary cir-
cumstance warranting equitable tolling. 398 F.3d 1276, 1280 n.5
(11th Cir. 2005) (citing Cobas v. Burgess, 306 F.3d 441, 444 (6th Cir.
2002)). The petitioner in Montano claimed that his language diffi-
culties prevented him from discovering a challenge to his convic-
tion on his own, which his attorney allegedly had overlooked. Id.
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4 Opinion of the Court 22-11570
We held that the petitioner “ha[d] not shown such ‘extraordinary
circumstances’ as to justify equitable tolling of the one-year filing
requirement in § 2255.” Id. (citation omitted).
In a § 2254 proceeding, the burden is on the petitioner to
demonstrate the need for an evidentiary hearing. Chavez v. Sec’y
Fla. Dep’t of Corr., 647 F.3d 1057, 1060 (11th Cir. 2011). “In deciding
whether to grant an evidentiary hearing, a federal court must con-
sider whether such a hearing could enable an applicant to prove
the petition’s factual allegations, which, if true, would entitle the
applicant to federal habeas relief.” Id. (quotation marks omitted).
The district court is not required to hold an evidentiary hearing on
the issue of equitable tolling, and we review the district court’s de-
nial of an evidentiary hearing on a § 2254 petition for an abuse of
discretion. Pugh v. Smith, 465 F.3d 1295, 1298, 1300 (11th Cir. 2006).
III.
Initially, we conclude that the issue of whether the district
court abused its discretion by not granting an evidentiary hearing
is not properly before us for review. “[A]ppellate review is limited
to the issues specified in the COA.” Murray v. United States, 145 F.3d
1249, 1250-51 (11th Cir. 1998). The sole issue outlined in the COA
was “[w]hether the district court erred by granting the motion to
dismiss Milinavicius’s petition as time-barred because a petitioner’s
inability to speak English fluently cannot serve as a basis for equi-
table tolling of the AEDPA’s one-year filing deadline.” The COA
does not mention any issue regarding whether the district court
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22-11570 Opinion of the Court 5
abused its discretion by not conducting an evidentiary hearing be-
fore dismissing Milinavicius’s habeas petition.
Nevertheless, even assuming that the evidentiary hearing is-
sue is implicit in the language of the COA, Milinavicius did not re-
quest an evidentiary hearing in the district court concerning his dif-
ficulties with the English language and the impact this language
barrier had on his pursuit of habeas relief. As such, Milinavicius
failed to meet his burden to demonstrate the need for an eviden-
tiary hearing on the issue, and we conclude that the district court
did not abuse its discretion by failing to conduct an evidentiary
hearing before dismissing the habeas petition as time-barred. See
Chavez, 647 F.3d at 1060.
Further, the record demonstrates that the district court did
not err in concluding that Milinavicius was not entitled to equitable
tolling and, therefore, dismissing his petition as untimely. As both
parties contend, it is not apparent from the district court’s order
that it categorically excluded consideration of language difficulties
when it determined that his English language deficiency did not
satisfy the extraordinary circumstances prong of the equitable toll-
ing standard. Montano did not say that a petitioner with a lack of
ability to read, write, and understand the English language is never
entitled to equitable tolling. See Montano at 1280 n.5. Rather, we
stated that a petitioner’s proficiency with the English language is
one, among other considerations, a district court examines when
determining the application of equitable tolling.
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We conclude, from the record, that Milinavicius cannot
show a causal connection between the untimely filing of his habeas
petition and his alleged English language barrier. The record
shows that Milinavicius admitted in his own filings that he had ac-
cess to an inmate who assisted him with the draft of his habeas pe-
tition during the relevant one-year period. He also acknowledged
in his objections to the report and recommendation that he had
procured legal assistance from a Lithuanian organization during
the relevant one-year period. Although factors prevented the or-
ganization from assisting him further, and he was transferred from
the institution where the inmate was assisting him, Milinavicius
cannot meet his burden to show that he was not capable of com-
pleting his habeas petition in a timely manner because of his lan-
guage deficiency. To the contrary, he was able to secure assistance,
despite his language deficiency, during the relevant one-year pe-
riod. Thus, Milinavicius cannot meet his burden to show that he
was entitled to equitable tolling due to his alleged English language
deficiency.
Accordingly, based on the aforementioned reasons, we af-
firm the district court’s order dismissing Milinavicius’s habeas peti-
tion as untimely.
AFFIRMED.
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