Jesus Aureoles v. Secretary, Department of Corrections , 609 F. App'x 623 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-12414
Non-Argument Calendar
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D.C. Docket No. 8:14-cv-00918-JDW-MAP
JESUS AUREOLES,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(July 9, 2015)
Before MARCUS, WILLIAM PRYOR, and COX, Circuit Judges.
PER CURIAM:
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Jesus Aureoles, a Florida prisoner proceeding pro se, appeals the dismissal
of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. This court granted a
certificate of appealability on one issue: “[w]hether the district court erred in
dismissing Aureoles’s 28 U.S.C. § 2254 petition as time-barred.”
We review de novo the district court’s dismissal of a § 2254 petition as time-
barred. Damren v. Florida, 776 F.3d 816, 820 (11th Cir. 2015). We also review
de novo the denial of equitable tolling. Chavez v. Sec’y Fla. Dep’t of Corr., 647
F.3d 1057, 1060 (11th Cir. 2011). We review the district court’s factual
determinations for clear error. Damren, 776 F.3d at 820. As in other civil matters,
a harmless error in a judgment on a § 2254 petition, which does not affect a party’s
substantial rights, is not a basis for vacating or modifying the judgment. FED. R.
CIV. P. 61.
A district court may consider the timeliness of a state prisoner’s § 2254
petition sua sponte. Day v. McDonough, 547 U.S. 198, 209, 126 S. Ct. 1675, 1684
(2006). If the district court considers the timeliness of the petition sua sponte, it
must give the parties “fair notice and an opportunity to present their positions.” Id.
at 210, 126 S. Ct. at 1684 (citations omitted).
The Antiterrorism and Effective Death Penalty Act of 1996 established a
one-year statute of limitations period for petitions filed under § 2254, which begins
running, as pertinent here, on the date on which the judgment became final. 28
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U.S.C. § 2244(d)(1)(A). The one-year limitations period is statutorily tolled during
the time that a “properly filed application for State post-conviction or other
collateral review with respect to the pertinent judgment or claim is pending.” Id.§ 2244(d)(2). However, a state petition does not revive the limitations period if the
petition is filed after the limitations period has expired. Moore v. Crosby, 321 F.3d
1377, 1381 (11th Cir. 2003).
If a prisoner files his § 2254 petition more than one year after the judgment
becomes final, the petition may still be timely if the petitioner is entitled to
equitable tolling. Damren, 776 F.3d at 821. A petitioner is entitled to equitable
tolling if he can demonstrate that: (1) he has pursued his rights diligently; and (2)
an extraordinary circumstance prevented him from filing a timely petition. Id.
The district court erred by dismissing Aureoles’s § 2254 petition sua sponte
as time-barred before granting him fair notice and an opportunity to respond. Day,
547 U.S. at 209–10, 126 S. Ct. at 1684. Nevertheless, the court considered
Aureoles’s arguments for equitable tolling on their merits when it reviewed his
motion for a certificate of appealability, and it did not err in concluding that
Aureoles filed an untimely petition. Aureoles’s § 2254 petition was filed after the
one-year statute of limitations expired because more than one year elapsed between
the date on which his convictions became final and the date on which he filed his
first state post-conviction motion.
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Aureoles presented no extraordinary circumstances that justified equitable
tolling. His allegations of an inability to understand English and a lack of formal
education did not establish extraordinary circumstances that warranted equitable
tolling. Rivers v. United States, 416 F.3d 1319, 1323 (11th Cir. 2005); United
States v. Montano, 398 F.3d 1276, 1280 n.5 (11th Cir. 2005). His claim that he
received misinformation from a law clerk did not establish an extraordinary
circumstance, as we do not usually permit claims of misinformation to justify
equitable tolling when a petitioner has been misinformed by an attorney. Helton v.
Sec’y for Dep’t of Corr., 259 F.3d 1310, 1313 (11th Cir. 2001). Finally, Aureoles
was not entitled to equitable tolling based on the prison’s failure to provide him
with Spanish-language legal materials. He was required to provide details about
the steps he took to file a timely § 2254 petition and the steps he took to find out
about the statute of limitations. Arthur v. Allen, 452 F.3d 1234, 1253 (11th Cir.),
modified in part on other grounds on reh’g, 459 F.3d 1310 (11th Cir. 2006). He
was also required to provide details about when he discovered the prison library’s
deficiency. Id. He did not do so.
Because Aureoles presented no grounds for equitable tolling, the district
court did not err in concluding that his § 2254 petition was time-barred. And, the
court’s dismissal of the petition before providing Aureoles with fair notice and an
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opportunity to respond was harmless error. Therefore, we affirm the dismissal of
Aureoles’s § 2254 petition.
AFFIRMED.
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