Selvin Gene Brown v. United States , 318 F. App'x 749 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-11434 ELEVENTH CIRCUIT
November 20, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket Nos. 06-00630-CV-J-20-HTS,
CR-02-00187-J-2
SELVIN GENE BROWN,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 20, 2008)
Before DUBINA, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Appellant Selvin Gene Brown, through counsel, appeals the district court’s
order denying his 28 U.S.C. § 2255 motion to vacate his sentence as time-barred.
On appeal, Brown concedes that he filed his § 2255 motion after the applicable
statute of limitations had expired. Nevertheless, Brown argues that the statute of
limitations should be equitably tolled because, due to his extreme communication
problems, Brown had no way of finding out about his right to file a habeas petition
before the statute-of-limitations period expired. Psychologists who examined
Brown determined that he was illiterate and that he had problems communicating
both verbally and using sign language.
We conduct a de novo review of a district court’s denial of equitable tolling.
Holland v. Florida, 539 F.3d 1334, 1338 (11th Cir. 2008). A federal prisoner must
ordinarily file a § 2255 motion to vacate his sentence within one year of, inter alia,
the date his judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1). A
conviction becomes final once the time for filing a direct appeal has expired. Akins
v. United States, 204 F.3d 1086, 1089 n.1 (11th Cir. 2000).
However, a petition filed outside this one-year window may still be
considered timely if the reviewing court applies equitable tolling. Holland, 539
F.3d at 1338. The petitioner bears the burden of proving that equitable tolling is
applicable, and to do so, he must establish two elements: “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood
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in his way and prevented timely filing.” Id. (quoting Lawrence v. Florida, ___
U.S. ___, 127 S. Ct. 1079, 1085 (2007)). Equitable tolling is only granted in
“extraordinary” circumstances. Id. We have rejected an argument that a limited
ability to communicate in English provides a basis for equitable tolling. United
States v. Montano, 398 F.3d 1276, 1280 n.5 (11th Cir. 2005). In addition, tolling
does not operate to revive an expired limitations period. See Downs v. McNeil, 520
F.3d 1311, 1325 (11th Cir. 2008); Moore v. Crosby, 321 F.3d 1377, 1381 (11th
Cir. 2003).
After reviewing the record, we conclude that equitable tolling does not apply
to extend Brown’s filing period because, for the majority of the period while the
statute of limitations was running, he was imprisoned at a facility where he could
communicate with the staff members, and there is no evidence that Brown was
pursuing his rights diligently during this time. Accordingly, we conclude that the
district court did not err in denying Brown’s petition as time-barred, and we affirm
its order.
AFFIRMED.
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