[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-13071

Non-Argument Calendar

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

GARY RAY SPEARS, 

 Petitioner-Appellant,

versus

WARDEN, 

 Respondent-Appellee.

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Appeal from the United States District Court

for the Middle District of Georgia

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(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 prisontransfer 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 mentalhealth 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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