# Michael Zack, III v. Secretary, FL DOC

> Court of Appeals for the Eleventh Circuit · January 12, 2018

URL: https://www.frixlaw.com/law-library/cases/4236508

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** January 12, 2018
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Case: 14-14998 Date Filed: 01/12/2018 Page: 1 of 22

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 14-14998
________________________

D.C. Docket No. 3:05-cv-00369-RH

MICHAEL DUANE ZACK, III,

Petitioner - Appellant,

versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents - Appellees.

________________________

Appeal from the United States District Court
for the Northern District of Florida
________________________

January 12, 2018

Before WILLIAM PRYOR, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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Petitioner-Appellant Michael Duane Zack, III was convicted and sentenced

to death by a Florida court in 1997 for sexual assault, robbery, and murder. Zack’s

conviction and sentence were upheld on direct appeal, and the Florida courts

denied his claims for postconviction relief.

More than four years after the deadline to file for federal habeas relief had

elapsed, Zack sought federal habeas relief under 28 U.S.C. § 2254. The district

court denied relief, finding eight of Zack’s claims untimely and one without merit.

Sitting en banc, we reviewed the timeliness of the eight claims and affirmed the

district court. The Supreme Court denied certiorari.

Ten months after the Supreme Court denied certiorari, Zack filed a Rule

60(b)(6) motion—the subject of the operative appeal—for relief from final

judgment based on extraordinary circumstances. The district court denied the

requested relief and also denied Zack’s subsequent motion for reconsideration of

the decision. Zack now requests relief from this Court.

This Court granted a Certificate of Appealability (“COA”) on two issues

concerning the district court’s denial of Zack’s Rule 60(b)(6) motion: (1) whether

the district court abused its discretion in not considering Zack’s mental

impairments and the delayed appointment of collateral counsel for the purposes of

finding extraordinary circumstances warranting equitable tolling under the

Supreme Court’s decision in Holland v. Florida, 560 U.S. 631 (2010); and (2)

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whether the district court abused its discretion in not granting Zack an evidentiary

hearing to further explore whether Zack’s mental impairments or the delayed

appointment of collateral counsel caused Zack to miss the filing deadline for his

federal habeas petition under our precedent in Hunter v. Ferrell, 587 F.3d 1304

(11th Cir. 2009). After a thorough review of the record, and with the benefit of

oral argument, we now affirm the district court’s denial of Zack’s Rule 60(b)(6)

motion.

I.

A. Trial Proceedings and Evidence regarding Zack’s Mental Impairments

In 1997, Zack was convicted and sentenced to death for his role in the

robbery, sexual assault, and murder of Ravone Kennedy Smith. See Zack v. State,

753 So. 2d 9, 14 (Fla. 2000) (the “Direct Appeal”). The facts of Zack’s conduct do

not factor into the analysis of the issues presented by the instant appeal, and the

parties do not dispute the detailed description of the facts set forth by the Florida

Supreme Court in its decision affirming Zack’s conviction and sentence. See id. at

13–14, 17–19. For those reasons, we do not repeat them here.

During the guilt and penalty phases of his trial, Zack offered testimony about

his mental impairments and history of childhood abuse as factors mitigating his

behavior. For example, Zack presented evidence that his mother drank heavily

when she was pregnant with him and that he was born prematurely after his mother

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was in a car accident that initiated early labor. In addition, Zack presented

evidence that he ingested ten ounces of cherry vodka at the age of three, and that

the physicians who treated him during his hospitalization predicted his early

exposure to such a heavy dose of alcohol would likely yield permanent brain

damage. Zack also presented evidence that he suffered extensive child abuse at the

hands of his stepfather. Finally, mental-health experts also testified during the

proceedings. They opined variously that Zack suffered from fetal alcohol

syndrome, post-traumatic stress disorder, chronic depression, addiction, and

possible brain damage. They placed his IQ, at the lowest, at 79.

After hearing all of the evidence, the jury recommended a sentence of death

by a vote of eleven to one. Direct Appeal, 753 So. 2d at 12. On November 14,

1997, the trial court followed the jury’s recommendation and sentenced Zack to

death. Id.

B. Post-Conviction Proceedings

On direct appeal, the Florida Supreme Court affirmed Zack’s conviction and

sentence, id. at 26, and on October 2, 2000, the United States Supreme Court

denied Zack’s petition for writ of certiorari. Zack v. Florida, 531 U.S. 858 (2000).

The limitations period for a federal habeas claim challenging a state-court

conviction is one year, 28 U.S.C. § 2244(d)(1)(A), but as of October 2, 2001, one

year after the Supreme Court denied review, Zack had not yet filed either a state or

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federal application for collateral review. With no petition filed in either state or

federal court during the one-year period, Zack missed the deadline for filing a

federal habeas claim.

On July 11, 2001, approximately three months before the statute of

limitations expired, the state trial court granted Zack’s request for post-conviction

counsel and appointed Glenn Arnold as Zack’s collateral counsel. Arnold failed to

present Zack’s post-conviction claims to the court in a timely fashion. On

December 26, 2001—more than two months after the federal limitations period

expired—Arnold finally filed a motion in state court seeking an extension of time

to file a motion for collateral review under Florida Rule of Criminal Procedure

3.850. See Zack v. Tucker, 704 F.3d 917, 918 (11th Cir. 2013). The state circuit

court granted the extension and Arnold filed a timely Rule 3.850 motion on Zack’s

behalf on May 10, 2002. Id. Arnold did not seek an extension of time to file in

federal court, and the state court’s extension did not affect the timeliness of Zack’s

federal habeas petition under 28 U.S.C. § 2254.

On October 21, 2002, two months after the United States Supreme Court

rendered its decision in Atkins v. Virginia, 536 U.S. 304 (2002), Zack filed an

amended Rule 3.850 motion (the “Rule 3.850 motion”) in the state court, raising

six claims for relief, including one premised on Atkins and based on Zack’s mental

impairments. After holding a hearing, the state court denied Zack’s Rule 3.850

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motion in its entirety, including the single Atkins claim. The Florida Supreme

Court affirmed the denial of the Rule 3.850 motion as well as a subsequent, related

Rule 3.851 motion.

On September 28, 2005, almost four years after the AEDPA limitations

period expired, Zack filed a federal habeas petition under 28 U.S.C. § 2254, setting

forth nine claims for relief. Zack filed an amended federal habeas petition on

March 20, 2008 (the “§ 2254 petition”), after exhausting two additional claims in

state court.

Upon review of Zack’s § 2254 petition, the district court dismissed eight of

Zack’s claims as untimely but found that Zack’s Atkins claim was timely. The

district court reasoned that the one-year limitations period for a federal habeas

claim challenging a state-court conviction runs from one of four possible dates,

two of which applied to Zack: first, the date when the petitioner’s conviction

became final based on the conclusion of direct review (affecting his eight non-

Atkins claims); and, second, the date when the Supreme Court first recognized a

relevant constitutional right that is retroactively applicable to cases on collateral

review (affecting only his Atkins claim). See 28 U.S.C. § 2244(d)(1)(A), (C).

Because more than one year had passed without any tolling between the date

Zack’s conviction became final and the date he filed his federal petition, but less

than one year had passed between the time that the Supreme Court decided Atkins

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and when Zack filed his federal petition, the district court concluded that Zack’s

Atkins claim was timely while his eight other claims were untimely and must be

dismissed. Accordingly, the district court dismissed Zack’s eight non-Atkins

claims in an order dated November 17, 2008 (the “November 2008 Order”).

After the merits of the Atkins claim were briefed and a hearing was held, the

district court dismissed Zack’s remaining Atkins claim. The district court noted

that “[t]he record demonstrates without genuine dispute that Mr. Zack’s IQ is at

least 79,” and thus that, “[a]s the record already makes clear, four Wechsler

Intelligence Scale tests have uniformly concluded that Mr. Zack’s IQ is

significantly above the minimum threshold for mental retardation.” Zack v.

Crosby, No. #:05-cv-00369-RH, Order Den. Atkins Claim 11–12, ECF No. 36

(N.D. Fla. Mar. 26, 2009).

Zack sought, and the district court granted, a COA on the question of

whether Zack’s single timely claim in his federal habeas petition could revive his

eight untimely claims. The question raised the issue of whether Walker v. Crosby,

341. F.3d 1240 (11th Cir. 2003), which supported Zack’s position that his timely

Atkins claim rescued his eight untimely claims from the statute of limitations bar,

remained good law after Pace v. DiGuglielmo, 544 U.S. 408 (2005). Considering

that issue en banc, we overruled Walker and held AEDPA’s limitations period

applied independently to each claim. Zack v. Tucker, 704 F.3d at 918. We

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therefore affirmed the district court’s denial of relief to Zack, id., and the Supreme

Court subsequently denied Zack’s petition for certiorari review. Zack v. Crews,

134 S. Ct. 156 (2013).

C. Rule 60(b)(6) Motion

On August 25, 2014, Zack filed the operative motion in the federal district

court pursuant to Fed. R. Civ. P. 60(b)(6) (the “Rule 60 motion”), seeking relief

from the November 2008 Order. Grounding his motion on the development of the

law under Holland v. Florida, 560 U.S. 631 (2010), Martinez v. Ryan, 566 U.S. 1

(2012), and Trevino v. Thaler, 569 U.S. 413 (2013), Zack argued that he was

entitled to equitable tolling under these Supreme Court decisions, all of which were

issued while Zack’s case was still pending before the Eleventh Circuit.

Zack noted that he had previously alerted this Court to the change in the law

under Holland and Martinez “in footnote 3 of his initial en banc brief to the

Eleventh Circuit.” Zack v. Crosby, Mot. to Am. Pet. for Writ of Habeas Corpus 2

(ECF No. 56) (N.D. Fla. Aug. 26, 2014). “In particular,” Zack added, he

“informed the en banc court that this Court had relied upon the pre-Holland and

pre-Martinez law of the Eleventh Circuit in concluding that Mr. Zack was not

entitled to equitable tolling and denying a certificate of appealability on that issue.”

Id. We chose not to substantively address Zack’s equitable-tolling arguments in

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our en banc decision and instead focused on determining the effect of Pace on

Walker.

On September 4, 2014, the district court denied Zack’s Rule 60 motion. In

reaching this conclusion, the district court reasoned both that its initial ruling

finding the eight claims untimely was correct and that even if it had not been, Rule

60 could provide no relief. Order Den. Rule 60 Mot. 2–3 (ECF No. 58) (Sept. 04,

2014).

On December 23, 2014, Zack filed an application for a COA with this Court

seeking review of the district court’s decision denying his Rule 60 motion. A

member of this Court granted his request and certified the following two questions

for review:

I. In light of Holland v. Florida, 560 U.S. 631 (2010), did the district court
abuse its discretion in denying Zack’s Rule 60(b)(6) motion without
determining whether Zack’s mental impairment and the timing of the
appointment of collateral counsel, collectively, amount to extraordinary
circumstances?

II. Did the district court abuse its discretion in denying Zack an evidentiary
hearing, under Hunter v. Ferrell, 587 F.3d 1304, 1309–10 (11th Cir.
2009), to further investigation and factual development and proceedings
to determine whether a causal connection exists between Zack’s mental
impairment and the timing of the appointment of collateral counsel,
collectively, on the one hand, and the untimely filing of his petition for
relief under 28 U.S.C. § 2254, on the other?

II.

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This Court reviews the district court’s denial of a Rule 60(b)(6) motion for

abuse of discretion. High v. Zant, 916 F.2d 1507, 1509 (11th Cir. 1990). Under

this standard, we affirm unless we determine that the district court “applied an

incorrect legal standard, failed to follow proper procedures in making the relevant

determination, or made findings of fact that are clearly erroneous.” Lugo v. Sec’y,

Fla. Dep’t Corr., 750 F.3d 1198, 1207 (11th Cir. 2014) (citing Mincey v. Head,

206 F.3d 1106, 1137 n.69 (11th Cir. 2000)).

We review a district court’s decision to deny an evidentiary hearing on

equitable tolling in a Rule 60(b) proceeding for an abuse of discretion. See Lugo,

750 F.3d at 1206; Cano v. Baker, 435 F.3d 1337, 1342 (11th Cir. 2006); see also

Schriro v. Landrigan, 550 U.S. 465, 473–75 (2007).

III.

As the catchall provision of Rule 60(b), Rule 60(b)(6) authorizes relief from

judgment for “any other reason that justifies relief.” But, in Gonzalez v. Crosby,

545 U.S. 524, 535 (2005), the Supreme Court clarified that “a movant seeking

relief under Rule 60(b)(6) [must] show ‘extraordinary circumstances’ justifying the

reopening of a final judgment.” The Supreme Court noted that such extraordinary

circumstances “will rarely occur in the habeas context.” Id. And even then, we

have explained, “whether to grant the requested relief is . . . a matter for the district

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court’s sound discretion.” Lugo, 750 F.3d at 1210 (citing Toole v. Baxter

Healthcare Corp., 235 F.3d 1307, 1317 (11th Cir. 2000)).

Because Zack presented his claim for equitable relief to the district court

under Rule 60(b)(6), he must first show a qualifying “extraordinary circumstance”

under Gonzalez justifies reopening his final judgment. If Zack can pass through

this gate, we must then consider whether Zack has made the necessary showing to

warrant equitable tolling. Under Holland v. Florida, 560 U.S. 631 (2010), and its

progeny, equitable tolling may be warranted in the event of an extraordinary

circumstance. Although the distinct categories of extraordinary circumstances that

support reopening of a final judgment under Rule 60(b)(6) and those that support

equitable tolling may overlap, an extraordinary circumstance must independently

warrant each particular relief sought.

Zack argues that he presented two extraordinary circumstances justifying

Rule 60(b)(6) relief. First, Zack contends that the Supreme Court’s ruling in

Holland v. Florida and the timing of the Eleventh Circuit’s en banc decision

overturning Walker v. Crosby constitute changes in law that amount to an

extraordinary circumstance justifying reopening Zack’s case under Rule 60(b)(6).

In support of this position, Zack asserts that he “could not have anticipated the en

banc decision to overrule existing law, nor could he have expected the expansion

and clarification of equitable tolling to AEDPA cases under Holland.” Pet’r-

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Appellant Initial Br. 21. Zack further argues that “[b]ecause Holland was not a

necessary avenue for relief until after this Court had overruled Walker and because

Zack sought to alert the courts to his Holland claim for equitable tolling at the

earliest practicable moment,” the “district court should have recognized that this

case fell within the ‘limited set of circumstances’ envisioned by the Supreme Court

in Gonzalez, 545 U.S. at 529.” Id. at 22.

Second, Zack contends that the “systemic failures of the State to appoint

counsel in a reasonable timeframe . . . merit[ ] relief under Rule 60(b)(6).”

While the second circumstance is troubling, we cannot conclude that either

rises to the level of the “extraordinary circumstances” necessary to allow reopening

of a final judgment under Rule 60(b)(6). Consequently, the district court did not

abuse its discretion in denying Zack’s Rule 60(b)(6) motion.

A. Changes in the Law

First, as Gonzalez makes clear, changes in the law do not, on their own,

constitute extraordinary circumstances justifying relief under Rule 60(b)(6). See

Gonzalez, 545 U.S. at 536. In the underlying decision in Gonzalez, the district

court dismissed Gonzalez’s federal habeas petition as untimely under then-existing

Eleventh Circuit precedent. Id. at 527. After the district court’s decision, the

Supreme Court announced a new AEDPA statute-of-limitations tolling rule in

Artuz v. Bennett, 531 U.S. 4, 8 (2000), which, had it been in effect earlier, would

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have permitted Gonzalez to pursue his petition. Based on the change in law that

Artuz created, Gonzalez filed a Rule 60(b)(6) motion arguing that his case should

be reopened and that his petition should be deemed timely. The district court

denied the Rule 60(b)(6) motion and the Eleventh Circuit affirmed. Gonzalez, 545

U.S. at 527–28.

As relevant here, the Supreme Court in Gonzalez held that the district court

properly denied the Rule 60(b)(6) motion because the change in the law did not

constitute “extraordinary circumstances” justifying the reopening of the case. Id.

at 536–37. The Supreme Court opined that “[i]t is hardly extraordinary that

subsequently, after petitioner’s case was no longer pending, this Court arrived at a

different interpretation.” Id. at 536. Still further, the Supreme Court reasoned that

if Gonzalez were correct, changes in the law would be a two-way street, justifying

not only reopening decisions that disfavored petitioners when the law became more

advantageous, but also justifying reopening decisions that otherwise favored

petitioners should the law become harsher: If “Artuz justified reopening long-ago

dismissals based on a lower court’s unduly parsimonious interpretation of [the

statute of limitations], then Pace v. DiGuglielmo . . . would justify reopening long-

ago grants of habeas relief based on a lower court’s unduly generous interpretation

of the same tolling provision.” Id. at 536–37.

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Since Gonzalez, we have repeatedly found that particular changes in the

interpretation of federal habeas law fall short of the requisite extraordinary

circumstance justifying Rule 60(b)(6) relief. In Howell v. Sec’y, Fla. Dep’t Corr.,

730 F.3d 1257, 1261 (11th Cir. 2013), for example, we upheld the district court’s

denial of a Rule 60(b)(6) motion premised on the change of law in Holland,

concluding that the change of law resulting from Holland “is not an extraordinary

circumstance under Rule 60(b).”

Likewise, in Arthur v. Thomas, 739 F.3d 611, 631 (11th Cir. 2014), we held

that “the change in the decisional law affected by the Martinez [v. Ryan, 566 U.S. 1

(2012)] rule is not an ‘extraordinary circumstance’ sufficient to invoke Rule

60(b)(6).”

Notwithstanding our holdings in Howell and Arthur however, we have also

concluded that certain, limited changes in intervening law can occasionally

constitute the necessary extraordinary circumstance. In particular, we have found

extraordinary circumstances may exist when we can identify the case under review

and a prior case as “legal twins.” See Ritter v. Smith, 811 F.2d 1398, 1402–03

(11th Cir. 1987). So, for example, if a supervening decision is issued in a case

arising out of the same transaction as the petitioner’s case, or if two cases are

related insofar as they concern the constitutionality of the same statute, a

petitioner’s case may satisfy this “legal twin” status. See id.

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But that is not the case here. We cannot say that Zack’s case presents a

“legal twin” of any other case involving a change in the law. Rather, the changes

in the law Zack points to are much closer to those involved in Gonzalez, Howell,

and Arthur.

As noted above, we have specifically held that the change in law brought

about by Holland cannot constitute an extraordinary circumstance for purposes of

reopening a case under Rule 60(b). And if the change in law created by Holland

cannot constitute an extraordinary circumstance, neither does the change in law

created by our en banc decision overturning Walker.

Walker allowed petitioners to revive claims that had already expired—but

only if a timely, valid claim later arose. Here, Zack could not have relied on

Walker when he blew past the statute of limitations on his eight untimely claims

because he had no way of knowing that the Supreme Court would later issue

Atkins, on which his only timely claim was ultimately based. As a result, the

equitable considerations driving Holland do not exist with respect to Zack’s

Walker claim, and there is even less of a basis to find an extraordinary

circumstance in this case than existed in Howell, where we found no extraordinary

circumstances based on the change in law created by Holland. As a result, Zack

cannot rely on the changes in the law that he identifies to establish the

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extraordinary circumstances necessary to allow the reopening of a final judgment

on a Rule 60(b)(6) motion.

B. “System Failures”

Zack’s additional argument, concerning the State’s delay in appointing him

counsel, likewise fails to constitute an extraordinary circumstance for the purposes

of Rule 60(b)(6) relief.

We have explained that “a true 60(b) motion within the meaning of

Gonzalez [v. Crosby, 545 U.S. 524 (2005),] . . . attack[s] not the substance of the

federal court’s resolution of a claim on the merits, but some defect in the integrity

of the federal habeas proceedings.” Lugo v. Sec’y, Fla. Dep’t of Corr., 750 F.3d

1198, 1210 n.11 (11th Cir. 2014) (citation and internal quotation marks omitted).

The state’s late appointment of collateral counsel is very troubling.1 And under the

1
Here, Florida appears not to have complied with its own rules. See Fla. R. Crim. P.
3.851(b)(3) (1996) (requiring appointment of counsel within 30 days after the judgment and
sentence become final). And while we recognize that we lack the power to control Florida’s
compliance with its own rules, that fact doesn’t make Florida’s noncompliance any less
troubling—particularly since Florida adopted the 30-day requirement after its Supreme Court
Committee on Postconviction Relief in Capital Cases “recognized that, to make the process
work properly, each death row prisoner should have counsel available to represent him or her in
postconviction relief proceedings.” See id. at Ct. Comm. 1993 Adoption (emphasis added).
Indeed, so important did Florida deem timely appointment that Florida’s current version of Rule
3.851, Fla. R. Crim. P., appoints counsel contemporaneously with the Florida Supreme Court’s
issuance of its mandate on direct appeal and, to our concurring colleague’s point, requires all
conflicts of interest and other appointment issues to be resolved within 45 days thereafter—a far
cry from the nine months that passed in Zack’s case. Fla. R. Crim. P. 3.851(b).
And turning to proceedings we do have jurisdiction over, as a practical matter, the late
appointment of state counsel—particularly when it does not occur until three-quarters of the way
through the statutory period—can have an effect on a petitioner’s ability to meet AEDPA’s
limitations period because a petitioner need not seek § 2254 relief if he obtains state
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correct circumstances, it might establish the extraordinary circumstances necessary

for equitable tolling.2 But it cannot establish the extraordinary circumstances

necessary to reopen a final judgment under Rule 60(b)(6) in this case.

Zack was aware when he filed his § 2254 petition in this case that the state

did not appoint counsel until nine months into his year to file his federal petition.

Nothing about the integrity of the federal proceedings prevented him from raising

the issue at that time. And nothing new about the state’s late appointment of

counsel has been revealed or has otherwise disclosed a defect in the federal

proceedings since the district court issued its order denying and dismissing Zack’s

postconviction relief, and he cannot obtain § 2254 relief without first exhausting his state
remedies, in any case. We simply don’t know whether Zack has a meritorious federal claim
because we cannot consider his claims since counsel missed the filing deadline. The problem is
not, as our colleague incorrectly suggests we “assume,” “that every state prisoner sentenced to
death should file a federal petition,” Conc. at 22, but rather, that a state’s extremely late
appointment of counsel, resulting in counsel’s missing of the filing deadline, should not be the
sole reason why a state prisoner who may have a meritorious claim is precluded from seeking
federal relief.
Finally, we are disappointed that our colleague would use the Smith family’s ongoing
tragedy to excuse what have become routine failures in Florida by state-appointed counsel to
comply with a simple filing deadline, see Lugo, 750 F.3d at 1215-26 (Martin, J., concurring)
(identifying more than 30 capital defendants whose counsel missed the deadline for filing § 2254
claims). See Conc. at 21-22. The Smith family has had to endure the unimaginable and is
surely entitled to justice. Upon this we all agree. But justice necessarily includes affording
defendants their constitutionally guaranteed rights to pursue habeas relief.
2
In particular, where a state collateral proceeding is effectively the first opportunity
where an ineffective-assistance-of-counsel claim can be raised and the state’s failure to timely
appoint counsel to raise such a claim amounts to a petitioner’s effective absence of counsel,
perhaps the existence of extraordinary circumstances may be satisfied. See Martinez v. Ryan,
566 U.S. 1 (2012), and Trevino v. Thaler, 133 S. Ct. 1911 (2013). We need not and do not opine
on this issue because we do not reach it since Zack has not established extraordinary
circumstances warranting the reopening of a final judgment under Rule 60(b)(6).
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petition. For these reasons, Zack cannot establish extraordinary circumstances

supporting the reopening of the final judgment under Rule 60(b)(6).

Because Zack has failed to establish the two required sets of extraordinary

circumstances that justify reopening a final judgment and equitable tolling, we

conclude that the district court did not abuse its discretion in denying Zack’s Rule

60(b) motion.

IV.

We also conclude that the district court did not abuse its discretion in

denying Zack an evidentiary hearing to prove his equitable-tolling allegations

under Hunter v. Ferrell, 587 F.3d 1304 (11th Cir. 2009). An evidentiary hearing

would have served no useful purpose because Zack alleged no facts that could have

warranted relief if proven true. See Chavez v. Sec’y Fla. Dep’t Corr., 647 F.3d

1057, 1060 (11th Cir. 2011) (“[I]f a habeas petition does not allege enough specific

facts, that, if they were true, would warrant relief, the petitioner is not entitled to an

evidentiary hearing.”); see also id. at 1061 (“The allegations must be factual and

specific, not conclusory.”). Accordingly, the district court did not abuse its

discretion by declining to grant Zack an evidentiary hearing.

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V.

For the reasons set forth above, we conclude that the district court did not

abuse its discretion in denying Zack’s Rule 60(b)(6) motion without an evidentiary

hearing.

AFFIRMED.

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WILLIAM PRYOR, Circuit Judge, concurring:

I concur in the panel opinion except that I do not join the gratuitous

statement that there is something “very troubling” about “[t]he state’s late

appointment of collateral counsel.” Majority Op. at 16. We lack the power and

expertise to manage state post-conviction review, the delay is irrelevant to a

motion under Rule 60(b), and I do not share my colleagues’ concern that “the

process” has failed Zack. Majority Op. at 16 n.1 (emphasis omitted).

The panel opinion points out that “Florida appears not to have complied with

its own rules,” Majority Op. at 16 n.1, but we should not comment on the delay.

How a state exercises its “sovereign power to punish offenders,” Coleman v.

Thompson, 501 U.S. 722, 748 (1991) (quoting Engle v. Isaac, 456 U.S. 107, 128

(1982)), within the bounds of the Constitution is the business of the state. And

states have no obligation to provide collateral counsel “[b]ecause a prisoner does

not have a constitutional right to counsel in state postconviction proceedings.”

Davila v. Davis, 137 S. Ct. 2058, 2062 (2017). Nor can we “instruct[] state

officials on how to conform their conduct to state law.” Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 106 (1984). And states may have understandable

reasons for delays in appointing counsel that are not immediately apparent on

federal review: a prisoner might initially refuse further review or counsel, or

scheduling, funding, or conflict-of-interest problems might slow appointment. See,

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e.g., Lugo v. Sec’y, Fla. Dep’t of Corr., 750 F.3d 1198, 1202 (11th Cir. 2014)

(pointing out that the petitioner’s original counsel “withdrew from . . .

representation . . . because it was representing [the petitioner’s] codefendant” and

that the replacement post-conviction counsel “had a personal conflict of interest

. . . [and] asked to be permitted to withdraw”). The panel opinion fails to examine

the cause of the delay, but concludes that it is inherently troubling. Federal courts

tasked with resolving narrow constitutional questions in habeas proceedings should

not concern themselves with plenary review of state processes.

The delay is also irrelevant to this appeal because an alleged defect in a state

proceeding cannot support a motion under Rule 60(b). The panel opinion correctly

acknowledges that a motion under Rule 60(b) attacks only a “defect in the integrity

of the federal habeas proceedings.” Lugo, 750 F.3d at 1210 n.11 (emphasis added)

(quoting Gonzalez v. Crosby, 545 U.S. 524, 532 & n.4 (2005)). And yet my

colleagues comment on a detail of state post-conviction review that has no bearing

on whether Zack can revive his federal litigation.

The panel opinion also suggests that prompt appointment is necessary “to

make the process work properly,” Majority Op. at 16 n.1 (quoting Fla. R. Crim. P.

3.851 Ct. Comm. 1993 Adoption), but this appeal is an odd place to express this

concern. Zack received post-conviction counsel, and the delay did nothing to

prevent Zack from obtaining full collateral review in state court. Indeed, the state

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granted Zack an extension of time to file a motion for state collateral review,

Majority Op. at 5, and the Florida Supreme Court denied relief only after

thoroughly reviewing Zack’s arguments. See Zack v. State, 911 So. 2d 1190 (Fla.

2005). And, were this not enough process, Zack has pursued federal habeas relief

for over 12 years and obtained review of his claim under Atkins v. Virginia, 536

U.S. 304 (2002). See Majority Op. at 6–9. This Byzantine litigation has yielded

exactly zero meritorious claims and has only delayed justice for the people of

Florida and especially for the family of the woman Zack murdered, sexually

assaulted, and robbed in 1996. See Zack v. State, 753 So. 2d 9, 12–15 (Fla. 2000).

My colleagues assume that every state prisoner sentenced to death should file a

federal petition. I do not share that assumption. When a state prisoner has had a

trial, direct appeal, and state collateral review, he is presumed to be guilty. And if

this prisoner misses a federal deadline for additional rounds of collateral review, I

do not assume that an injustice has occurred. Indeed, I voted against granting Zack

a certificate of appealability to pursue this appeal because his arguments were

patently frivolous.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4236508. Public record. Not legal advice.