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ANTONIO MOORE,
Petitioner-Appellant,
versus
DAVID FRAZIER,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(March 31, 2015)
Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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barred. Moore responded that he had been diligently pursuing his rights and that
his trial and appellate counsels ineffectiveness should excuse his belated filing.
A magistrate judge agreed with the State and recommended that Moores
2254 petition be dismissed as untimely. The district court adopted the magistrate
judges recommendation, dismissed the petition, and denied Moore a certificate of
appealability (COA). Judgment was entered dismissing Moores 2254 petition
on June 27, 2013. This appeal followed.
This Court, finding that Moore had made a substantial showing of the denial
of his Fourteenth Amendment rights to due process and equal protection and of his
Sixth Amendment right to effective assistance of counsel, granted a COA on
whether Moore was entitled to have the merits of his claims considered despite the
untimeliness of his 2254 petition.
II.
We first address the States contention that we lack appellate jurisdiction
because Moores notice of appeal is untimely. In a civil case, the timely filing of a
notice of appeal is a jurisdictional requirement.
Admin., 606 F.3d 1296, 1300 (11th Cir. 2010). The notice of appeal generally
must be filed within 30 days after entry of judgment. Fed. R. App. P. 4(a)(1)(A).
Under the prison mailbox rule, a pro se prisoners court filings are deemed filed
on the date they are delivered to prison authorities for mailing to the district court.
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United States v. Glover, 686 F.3d 1203, 1205 (11th Cir. 2012); see Fed. R. App. P.
4(c)(1). In the absence of evidence to the contrary, we assume that a prisoners
filing was delivered to prison authorities on the date he signed it. Glover, 686 F.3d
at 1205.
Moore did not submit the notice of appeal giving rise to this appeal until
October 2, 2013, over thirty days after entry of judgment on June 27, 2013.
Therefore, this appeal must be dismissed unless another document filed by Moore
may serve as the equivalent of a timely notice of appeal. See Green, 606 F.3d at
1300-02; Rinaldo v. Corbett, 256 F.3d 1276, 1278-79 (11th Cir. 2001) (holding
that a pro se litigants court filing may be construed as a notice of appeal so long as
it is the functional equivalent of what is required by Rule 3, Fed. R. App. P., and
objectively indicates the litigants intent to seek appellate review).
Here, we construe Moores motion for leave to appeal in forma pauperis
(IFP motion), received by the district court on July 31, 2013, as a timely notice
of appeal from the final judgment. We have held that the timely filing of papers
such as these are the equivalent of a notice of appeal so long as they clearly
evince the intent to appeal. Haney v. Mizell Meml Hosp., 744 F.2d 1467, 1472
(11th Cir. 1984) (construing a motion for declaration of pauper status and an
affidavit in support of a motion to proceed on appeal in forma pauperis as a notice
of appeal). The IFP motion is timely to appeal because we assume that Moore, a
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prisoner, delivered the motion to prison authorities on the date he signed itJuly
22, 2013which was within 30 days after entry of judgment. See Glover, 686
F.3d at 1205; Fed. R. App. P. 4(a)(1)(A).
Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967) (holding that
counsel may seek to withdraw from representation by filing a brief showing that an appeal is
wholly frivolous).
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The Supreme Court of Georgia found that review of Moores claims of ineffective
assistance of counsel was procedurally barred because such claims first needed to be raised in a
motion for new trial. See Moore, 632 S.E.2d at 633.
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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
demonstrate (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 filing of the petition. San Martin, 633 F.3d at 1267. The petitioner has
the burden of proving that circumstances justify applying the equitable-tolling
doctrine. Id. at 1268.
Here, Moore has not shown that he is entitled to equitable tolling. Although
Moores trial counsel may have been ineffective in depriving Moore of the
opportunity to file a meritorious direct appeal, Moore was later allowed to file an
out-of-time appeal. The Supreme Court of Georgias resolution of Moores direct
appeal on July 13, 2006, restarted the limitation period under the AEDPA. See 28
U.S.C. 2244(d)(1)(A); San Martin, 633 F.3d at 1265-66.
As a result, trial
counsels ineffectiveness did not affect Moores ability to file a timely 2254
petition because it occurred before the relevant limitation period began to run.
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The same goes for Moores assertion that he did not receive all of his legal documents
for his case until 2009. Nor does Moore explain what documents were missing or how they
affected his preparation. And it is clear that Marlowe was able to conduct a review of his case in
2007 with the materials available.
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Therefore,
The letter concludes by indicating that Marlowe believes that his work is complete and
by directing Moore to contact him to make financial arrangements if Moore wishes to retain
Marlowe to proceed with a petition.
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applies to cases in which new evidence shows it is more likely than not that no
reasonable juror would have convicted [the petitioner]. McQuiggin v. Perkins,
569 U.S. ___, ___, 133 S. Ct. 1924, 1933 (2013) (internal quotation marks
omitted).
Here, Moore argues only that the evidence presented at trial was
insufficient to convict and that the state court failed to instruct the jury on selfdefense. But he has presented no new reliable evidence showing that it is more
likely than not that no reasonable jury would have convicted him of malice murder.
See Rozzelle, 672 F.3d at 1000, 1017. Therefore, Moore is not entitled to have the
untimeliness of his 2254 petition excused based on the actual-innocence
exception.
V.
In sum, we affirm the district courts dismissal of Moores 2254 petition as
time barred.
AFFIRMED.
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