[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-12231 October 28, 2005
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00955-CV-J-99-MCR
TRASK B. FELTON,
Petitioner-Appellant,
versus
STATE OF FLORIDA,
ATTORNEY GENERAL, STATE OF FLORIDA,
SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 28, 2005)
Before BLACK, WILSON and COX, Circuit Judges.
PER CURIAM:
Trask B. Felton (“Felton”) appeals the district court’s dismissal of his 28
U.S.C. § 2254 petition as time-barred under the Antiterrorism and Effective Death
Penalty Act, 28 U.S.C § 2244 (the “AEDPA”).
This court granted Felton’s motion for a certificate of appealability on the
following issue only:
Whether the district court erred by concluding that the
one-year statute of limitations for filing Appellant’s 28
U.S.C. § 2254 petition was not tolled after the state court
entered its order denying Appellant’s motion for a
rehearing on his state habeas corpus petition, even
though the state court never issued its mandate on
Appellant’s state habeas corpus petition.
At issue in this case is the period during which the statute of limitations was
tolled because of the pendency of Felton’s petition for a writ of habeas corpus in
Florida’s First District Court of Appeal.1 Felton filed the petition on December 2,
2002. It was denied on April 28, 2003, and Felton’s motion for rehearing was
denied on June 12, 2003. No mandate ever issued. Felton filed his 28 U.S.C. §
2254 petition on November 6, 2003. He contends that, because no mandate
1
In their initial appellate briefs, both parties agreed on the relevant dates. At oral
argument and in supplemental briefing, though, the State pointed out that the December 2, 2002
petition was dismissed for failure to serve the state with a copy of the petition. The First District
Court of Appeal reinstated the petition on April 7, 2003. Eliminating the time between
December 2, 2002 and April 7, 2003 would increase the time by which Felton’s ultimate federal
petition for habeas relief was untimely by 126 days, meaning that the petition would have been
filed 227 days too late. This fact would render the 147 days of potential equitable tolling
irrelevant. However, since the result will be the same whether or not we consider the State’s new
argument, we decline to consider it and assume arguendo that the earlier filing date of December
2, 2002 applies.
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issued, the statute was tolled from the date he filed his state habeas petition until
the date he filed his federal habeas petition, or, alternatively, that the court should
have equitably tolled the statute during the 147-day period following the denial of
his motion for rehearing in the state habeas proceeding.
Felton argues that he never had actual notice of the finality of the district
court of appeal’s ruling on his motion for rehearing because a mandate never
issued following the court’s ruling denying the motion. The State contends that
this state habeas petition was an original proceeding in the court of appeal, and
that Florida law does not require a mandate in such a proceeding.
We agree with the State. Felton grounded his state habeas petition on
claims of ineffective assistance of appellate counsel. The Florida Rules of
Appellate Procedure treat such a filing as an original proceeding. Fla. R. App. P.
9.141(c). This treatment is both appropriate and understandable because the
petition effectively asks the appellate court to allow a new appeal, not to mandate
action in a lower court or by any state executive officer. The appellate court could
not issue a mandate in this case because there was no lower court or person to
which the court could direct a mandate.
The Florida Rules of Judicial Administration clearly contemplate court
actions not requiring a mandate, and they provide procedures for alternative notice
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to the parties in cases that end without a mandate. Fla. R. Jud. Admin.
2.040(b)(4). In such cases, a party receives notice of finality of the court’s
decision by receipt of a copy of the order or judgment. In this case, the state
court’s order denying the petition included the statement, “NOT FINAL UNTIL
TIME EXPIRES TO FILE REHEARING MOTION AND DISPOSITION
THEREOF IF FILED.” Felton did file a motion for rehearing of the petition, and
the court sent him notification of its denial of the motion on June 12, 2003. The
tolling of the statute of limitations ceased upon denial of the motion for rehearing
because no mandate was required. Accordingly, Felton’s federal habeas petition
was untimely.
Felton contends that even if his federal petition was untimely, his delay was
excusable and justifies equitable tolling in his favor. To establish a basis for
equitable tolling, a party must establish that (1) some extraordinary circumstance
prevented his timely filing, despite that fact that (2) he has been diligent in
pursuing his rights. Pace v. DiGugliemo, 543 U.S. __, 125 S. Ct. 1807, 1814
(2005); Wade v. Battle, 379 F.3d 1254, 1264 (11th Cir. 2004). Felton argues that
he “diligently waited” for a mandate to issue and that the failure to issue one
constituted an extraordinary circumstance that justifies his delay. We have already
noted, however, that the state court’s order became final upon denial of Felton’s
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motion for rehearing, and that the court sent notice of its decision to Felton on
June 12, 2003. Despite this notice, Felton did not file his federal habeas petition
until some 147 days later. Thus, even if the court’s failure to issue a mandate is
deemed extraordinary (and we do not think it is), Felton’s 147-day delay
forecloses a finding that he exercised the required due diligence.
The judgment of the district court dismissing Felton’s 28 U.S.C. § 2254
petition as time-barred is
AFFIRMED.
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