Ilarion v. Secretary for Department of Corrections

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 5, 2006
No. 05-15358 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20130-CV-SH
DAQUILARD ILARION,
Petitioner-Appellant,
versus
SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
James V. Crosby,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 5, 2006)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Petitioner/Appellant Daquilard Ilarion, a Florida state prisoner proceeding
pro se, appeals the dismissal of his habeas corpus petition, 28 U.S.C. § 2254, as
barred by the one-year statute of limitations set by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214(1996). On appeal, Ilarion argues that the district should have granted him
equitable tolling for the time period between July 17, 2002, when the Florida Third
District Court of Appeal dismissed his appeal from the denial of his motion for
state post-conviction relief for failure to comply with its prior order to file a brief
within 20 days, and March 27, 2003, when Ilarion filed his state habeas corpus
petition, seeking reinstatement of his state post-conviction appeal. According to
Ilarion, he did not receive notice of either the order to file his brief within 20 days
or the dismissal of the appeal of the motion for state post-conviction relief, because
state correctional officials failed to forward his mail when he was transferred
between correctional facilities.
We review de novo the district court’s decision to deny equitable tolling.
Drew v. Dep’t of Corrs., 297 F.3d 1278, 1283 (11th Cir. 2002). However, we
review a district court’s determination of the relevant facts, including those related
to a petitioner’s diligence, for clear error. Id. “This standard requires us to affirm
a district court’s findings of fact unless the record lacks substantial evidence to
2
support that determination.” Id. (quotation and citation omitted).
The AEDPA imposes a one-year statute of limitations for filing a § 2254
habeas petition, which begins to run following one of four events, including “the
date on which the judgment became final . . . .” 28 U.S.C. § 2244(d)(1). A
judgment becomes “final” on the date on which the U.S. Supreme Court issues a
decision on the merits of the petitioner’s direct appeal or denies certiorari, or after
the expiration of the 90 days in which the petitioner could file such a petition.
Bond v. Moore, 309 F.3d 770, 773-74 (11th Cir. 2002). A “properly filed
application for State post-conviction or other collateral review” tolls the AEDPA
statute of limitations period while the state application is pending. 28 U.S.C. §
2244(d)(2). Where a petitioner seeks a belated appeal of an order denying post-
conviction relief, the limitations period is tolled while the appeal is pending.
Moore v. Crosby, 321 F.3d 1377, 1381 (11th Cir. 2003). The period during which
no application, however, is pending is not tolled because the statutory tolling
period only encompasses periods during which there is a properly filed application.
Id.Additionally, the statute of limitations can be equitably tolled where a
petitioner “untimely files because of extraordinary circumstances that are both
beyond his control and unavoidable even with diligence.” Steed v. Head, 219 F.3d
3
1298, 1300 (11th Cir. 2000) (quotation omitted). Equitable tolling is extraordinary
and applied sparingly. Drew, 297 F.3d at 1286. “Each case turns on its own
facts.” Knight v. Schofield, 292 F.3d 709, 711 (11th Cir. 2002). The petitioner
bears the burden of showing that equitable tolling is warranted. Drew, 297 F.3d at
1286. Although we have characterized the equitable tolling standard as a two-part
test, requiring a defendant to establish both extraordinary circumstances and due
diligence, courts need not consider whether extraordinary circumstances exist if a
petitioner’s delay in filing the federal habeas petition exhibits a lack of due
diligence. Diaz v. Sec’y for Dep’t of Corr., 362 F.3d 698, 702 & n.7 (11th Cir.
2004) (expressly refusing to consider Diaz’s extraordinary circumstances argument
in light of his unexplained 532-day delay in filing his § 2254 petition).
To date, we have held only once in a published opinion that equitable tolling
applied to the AEDPA’s one year statute of limitation. Knight, 292 F.3d at 711. In
Knight, the state court had assured the petitioner that it would contact him as soon
as a decision had been made and then inadvertently sent notice of the decision to
the wrong person. 292 F.3d at 710. Meanwhile, the AEDPA’s one-year statute of
limitation period lapsed. Id. Importantly, the petitioner demonstrated diligence in
inquiring about the status of his case when the court failed to contact him after 15
months. Id. at 711. By contrast, we have held that a prisoner was not entitled to
4
equitable tolling where he claimed to have contacted the state court by mail, but
did not provide any copies of the letters, did not make attempts to contact the court
in any other manner, and was not given assurance of notification by the state court.
Drew, 297 F.3d at 1289.
After reviewing the record, we conclude that the district court’s decision not
to apply equitable tolling is supported by substantial evidence. The due diligence
analysis is dispositive in this case. See Diaz, 362 F.3d at 702 & n.7 Therefore, the
case turns on whether the court clearly erred when it found that Ilarion lacked the
due diligence required to warrant equitable tolling. Drew, 297 F.3d at 1283. The
record includes no evidence that Ilarion was diligent about requesting his mail
from prison authorities during the times that he was at his original correctional
institution. Likewise, nothing in the record indicates that Ilarion made any attempt
to keep the court apprised of his address when he was transferred. The only
contact he alleges to have had with the court was via two letters: the first dated
November 13, 2002 and the second dated February 10, 2003, neither of which are
included in the record. Even assuming Ilarion made these written inquiries, this
Court has previously required more of incarcerated petitioners in order to
demonstrate diligence. See Drew, 297 F.3d at 1289 (holding that petitioner was
not entitled to equitable tolling where he did not make any attempts to contact the
5
court other than by letters, copies of which he did not provide).
Because Ilarion has failed to show that the record lacks substantial evidence
to support the district court’s finding that he was not diligent and, therefore, not
entitled to equitable tolling, we conclude that the district court did not clearly err.
Accordingly, we affirm the district court’s order dismissing Ilarion’s habeas
petition as time-barred.
AFFIRMED.
6