Melendez v. Secretary, Department of Corrections ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 6, 2007
No. 06-16504 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00104-CV-FTM-29-SPC
IVAN MELENDEZ,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 6, 2007)
Before ANDERSON, BIRCH and MARCUS, Circuit Judges.
PER CURIAM:
Ivan Melendez, an unrepresented Florida prisoner, appeals the district
court’s judgment dismissing his habeas corpus petition, filed pursuant to 28 U.S.C.
§ 2254, as barred by the one-year statute of limitations applicable to such petitions
under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See
28 U.S.C. § 2244(d)(1). We granted Melendez a certificate of appealability to
consider whether equitable tolling rendered the filing of his petition timely. It does
not and we affirm.
Melendez argues that he is entitled to have his limitations period equitably
tolled because the lawyer who represented him in his state postconviction
proceedings mistakenly filed a second petition for state postconviction relief
(a petition that was held untimely under state law) rather than complying with
Melendez’s request to file a § 2254 petition within the period of limitations.
Melendez alleges that he diligently pursued this matter with his lawyer, but that his
lawyer ignored his requests and did not return his legal papers to him until after
AEDPA’s one-year limitations period had expired.
I.
“This Court reviews de novo a district court’s dismissal of a [§ 2254
petition] as time-barred, as well as a district court’s finding that equitable tolling
does not apply.” Outler v. United States, 485 F.3d 1273, 1278 (11th Cir. 2007).
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II.
AEDPA imposes a one-year statute of limitations for filing a § 2254 habeas
petition and identifies four discrete events that trigger the running of the one-year
period. See 28 U.S.C. § 2244(d)(1)(A)-(D). The district court found that
Melendez’s § 2254 petition was untimely under § 2244(d)(1)(A), the only
potentially relevant triggering event. Melendez does not challenge that ruling on
appeal. Thus, Melendez’s § 2254 petition can be considered timely only if
equitable tolling applies.
Equitable tolling operates to save an otherwise untimely filed § 2254 petition
if the petition was untimely filed “because of extraordinary circumstances that are
both beyond [the petitioner’s] control and unavoidable even with due diligence.”
Rainey, 443 F.3d at 1330 (quotation omitted). Equitable tolling, however, is an
extreme remedy and is applied sparingly. See Drew v. Dep’t of Corr., 297 F.3d
1278, 1286 (11th Cir. 2002). Melendez bears the burden of showing that equitable
tolling is warranted and must demonstrate both (1) diligent efforts to timely file
and (2) extraordinary and unavoidable circumstances. See Arthur v. Allen, 452
F.3d 1234, 1253 (11th Cir. 2006). We have held that “an attorney’s miscalculation
of the limitations period or mistake is not a basis for equitable tolling.” Steed v.
Head, 219 F.3d 1298, 1300 (11th Cir. 2000); Helton v. Sec’y for Dep’t of Corr.,
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259 F.3d 1310, 1313 (11th Cir. 2001). We have also said that “periods in which a
prisoner is separated from his legal papers are not ‘extraordinary circumstances’ in
which equitable tolling is appropriate.” Dodd v. United States, 365 F.3d 1273,
1283 (11th Cir. 2006).
We conclude that equitable tolling is not warranted in this case because
Melendez cannot show extraordinary circumstances. The untimely filing of his
§ 2254 petition ultimately resulted from his lawyer’s mistaken belief that the filing
of a second state postconviction petition would toll the limitations period under
28 U.S.C. § 2244(d)(2). That belief turned out to be mistaken because Melendez’s
second application for state postconviction relief was dismissed as untimely, and
such an untimely application in state court is not “properly filed” under AEDPA
and thus does not toll the limitations period under § 2244(d)(2). See Webster v.
Moore, 199 F.3d 1256, 1257 (11th Cir. 2000). Our case law establishes that such a
“miscalculation or misinterpretation by [petitioner’s] attorney in interpreting the
plain language of the statute does not constitute an extraordinary circumstance
sufficient to warrant equitable tolling.” Steed, 219 F.3d at 1300; Helton, 259 F.3d
at 1313.
Equally unavailing is Melendez’s argument that he lacked access to his legal
papers until after the federal limitations period had expired. Melendez was
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separated from his legal papers while his lawyer prepared his case for state
postconviction relief, a period of separation that is routine for prisoners with access
to legal representation. Even assuming that Melendez’s lawyer failed to return
Melendez’s legal papers promptly upon request, it is clear that any such failure was
the result of the lawyer’s mistaken belief that filing a second state postconviction
petition was the appropriate course of action and would toll AEDPA’s one-year
period of limitations. Because a lawyer’s error does not constitute extraordinary
circumstances, equitable tolling is not warranted under the circumstances of this
case. See Steed, 219 F.3d at 1300.
III.
For these reasons, we affirm the judgment of the district court dismissing
Melendez’s § 2254 petition as barred by the statute of limitations.
AFFIRMED.
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