Ubaldo Mazola v. United States , 294 F. App'x 480 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 19, 2008
No. 07-15366 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos. 06-21782-CV-AJ
91-00870-CR-AJ
UBALDO MAZOLA,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 19, 2008)
Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Ubaldo Mazola, a federal prisoner proceeding with counsel, appeals the
district court’s dismissal of his 28 U.S.C. § 2255 motion to vacate as time-barred.
After pleading guilty to conspiracy to possess with intent to distribute a detectable
amount of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846, Mazola was
sentenced to 96 months’ imprisonment. His conviction became final on May 2,
2005. As he acknowledges, Mazola had one year, or until May 2, 2006, to file his
§ 2255 motion to vacate. See 28 U.S.C. § 2255(f)(1)-(4) (establishing a one-year
limitations period for § 2255 motions). On July 17, 2006, 52 days after the
expiration of the one-year deadline, Mazola filed his § 2255 motion.
The district court found Mazola was entitled to 42 days of equitable tolling
for the time he was hospitalized during the year after his conviction. Even with
these 42 days, however, Mazola’s § 2255 motion was untimely by 10 days. On
appeal, Mazola argues that he was entitled to additional equitable tolling because
of his dire medical condition and his due diligence in filing the § 2255 motion.
In a proceeding on a motion to vacate, set aside, or correct sentence, the
district court’s factual findings are reviewed for clear error while legal issues are
reviewed de novo. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004).
Under § 2255, the one-year limitations period runs from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the
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United States is removed, if the movant was prevented from making a
motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.
28 U.S.C. § 2255(f)(1)-(4).
Once the limitations period begins, it may be tolled by equitable tolling. The
doctrine of equitable tolling applies “when a movant untimely files because of
extraordinary circumstances that are both beyond his control and unavoidable even
with diligence.” Knight v. Schofield, 292 F.3d 709, 711 (11th Cir. 2002)
(quotation marks omitted). “Equitable tolling is an extraordinary remedy which is
typically applied sparingly.” Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000).
An inmate bears the difficult burden of showing specific facts to support his claim
of extraordinary circumstances and due diligence. See Akins v. United States, 204
F.3d 1086, 1089-90 (11th Cir. 2000). The equitable tolling analysis is fact-specific
and must be determined on a case-by-case basis. Downs v. McNeil, 520 F.3d
1311, 1322 (11th Cir. 2008).
As noted earlier, Mazola filed his § 2255 motion 52 days after the one-year
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statutory deadline. See 28 U.S.C. § 2255(f)(1); Washington v. United States, 243
F.3d 1299, 1301 (11th Cir. 2001). The district court found that Mazola was
entitled to 42 days of equitable tolling, accounting for the days he was hospitalized
for pneumonia and tuberculosis, in addition to his chronic conditions of seizures
and asthma. The district court also found that Mazola was not entitled to any
additional equitable tolling because he failed to show that his medical conditions
constituted extraordinary circumstances during the time that he was not
hospitalized or that he acted diligently to file his § 2255 motion in a timely
manner. These findings were not clearly erroneous. Thus, with the 42 days of
equitable tolling, Mazola filed his § 2255 motion 10 days late, and the district court
properly dismissed the motion as untimely.
Upon review of the record and the parties’ briefs, we discern no reversible
error.
AFFIRMED.
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