Oriel Bernadeu vs Secretary, Department of Corrections, Walter A. McNeil ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-12365 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 23, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cv-20337-DLG
ORIEL BERNADEU,
lllllllllllllllllllllPetitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
Walter A. McNeil,
lllllllllllllllllllllRespondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 23, 2011)
Before MARCUS, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Oriel Bernadeu appeals the dismissal of his 28 U.S.C. § 2254 petition for
habeas corpus as time-barred. On appeal, Bernadeu argues that: (1) the district court
erred in not tolling the time between the trial court’s denial of his motion for
rehearing of his Fla.R.Crim.P. 3.850 post-conviction motion and the date on which
he filed a petition for belated appeal in state court; and (2) alternatively, the court
erred in not granting him the benefit of equitable tolling during that time because he
did not receive notice of the order denying his motion for rehearing until more than
seven months after it was issued. After careful review, we affirm.
We review de novo a district court’s determination that a § 2254 petition was
time-barred. Moore v. Crosby, 321 F.3d 1377, 1379 (11th Cir. 2003). We review “a
district court’s legal decision on equitable tolling de novo” and its factual findings for
clear error. Drew v. Dep’t of Corr., 297 F.3d 1278, 1283 (11th Cir. 2002). “[A]
determination regarding a party’s diligence is a finding of fact.” Id.A petition for a writ of habeas corpus filed by a state prisoner is subject to a
one-year statute of limitations. 28 U.S.C. § 2244(d)(1). The statute of limitations is
statutorily tolled while a properly-filed state application for post-conviction or other
collateral review is pending. Id. § 2244(d)(2).
In Florida, one form of collateral relief a prisoner may seek is a Rule 3.850
motion to vacate, set aside, or correct a sentence. Fla.R.Crim.P. 3.850. If this motion
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is denied and the petitioner does not file a notice of appeal within 30 days, the
petitioner may later file a petition for belated appeal. Id. Rule 3.850(g); Fla.R.App.P.
9.141(c)(4)(A). Nonetheless, if a petition for belated appeal is filed after the § 2244
statute of limitations has expired, “it does not reset or restart the statute of
limitations.” Moore, 321 F.3d at 1381.
In addition to statutory tolling, equitable tolling may be applied in
extraordinary cases where a petitioner acted diligently but nonetheless filed his
petition for habeas corpus after the expiration of the statute of limitations due to
“circumstances beyond his control.” Drew, 297 F.3d at 1286-87.
In this case, the district court correctly dismissed Bernadeu’s petition as
time-barred because the statute of limitations expired on January 3, 2008, and
Bernadeu did not file his petition until February 1, 2009. Despite Bernadeu’s
arguments to the contrary, it is irrelevant that the Florida state court deemed his
March 25, 2008 belated appeal timely because, under Moore, a petition for belated
appeal “does not reset or restart the statute of limitations” after it has expired. 321
F.3d at 1381. Contrary to Bernadeu’s suggestion, Moore is still good law in this
Court; the Supreme Court in Carey v. Saffold, 536 U.S. 214 (2002), explicitly limited
its holding to California, and the Court in Evans v. Chavis, 546 U.S. 189 (2006),
merely applied Carey to a new set of facts in a different California case. See Carey,
536 U.S. at 224-25; Evans, 546 U.S. at 192. Furthermore, Bernadeu’s contention that
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the Supreme Court applied these cases to Florida’s post-conviction scheme in
Lawrence v. Florida, 549 U.S. 327 (2007), is without merit because there, the Court
merely held that a post-conviction application is not pending following the final
judgment in the state court even if the petitioner filed a petition for certiorari in the
Supreme Court. Id. at 329. Therefore, Moore remains binding on this Court.
Because Bernadeu’s federal petition for habeas corpus was not filed until after
the expiration of the § 2244 statute of limitations, it was time-barred unless equitable
tolling is applicable. However, Bernadeu took no action to learn the status of his state
court case for more than seven months, during which time the statute of limitations
expired. The district court thus did not err in finding that Bernadeu did not act
diligently during this delay. See Drew, 297 F.3d at 1286-87. Accordingly, we affirm.
AFFIRMED.
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