[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 11, 2006
No. 05-13778
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20580-CV-ASG
FABIAN LOGREIRA,
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
_________________________
(January 11, 2006)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Fabian Logreira, 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 of the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). On appeal,
Logreira argues that the time for filing his petition was equitably tolled for 224
days -- between July 11, 2001, and February 19, 2002 -- because the Florida Third
District Court of Appeal (“Third DCA”) failed to serve him with a copy of its order
denying state habeas corpus relief during that time. He claims that he met the
requirements for equitable tolling set forth in Knight v. Schofield, 292 F.3d 709,
711 (11th Cir. 2002), because he had no control over the Third DCA’s failure to
notify him, and he acted with due diligence by repeatedly inquiring about the
outcome of the state petition beginning in December 2001. After careful review,
we affirm.
We review de novo the district court’s decision to deny equitable tolling.
See Drew v. Dep’t of Corr., 297 F.3d 1278, 1283 (11th Cir. 2002). However, our
review of the district court’s determination of the relevant facts, including those
related to a petitioner’s due diligence, is for only clear error. Id. “This standard
requires us to affirm a district court’s findings of fact unless the record lacks
substantial evidence to support that determination.” Id. (quotation omitted). We
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have noted that clear error is “a very high standard, and one we would rarely be
likely to find.” Id. at 1290 (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, inter
alia, “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, denies certiorari, or after the
expiration of the 90 days in which the petitioner could file such a petition. See
Bond v. Moore, 309 F.3d 770, 773 (11th Cir. 2002). “The time during which a
properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall not be counted toward
any period of limitation . . . .” 28 U.S.C. § 2244(d)(2).
While the AEDPA’s 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
1298, 1300 (11th Cir. 2000) (quotation omitted), this remedy is extraordinary and
is applied sparingly, Drew, 297 F.3d at 1286. “Equitable tolling is limited to rare
and exceptional circumstances, such as when the State’s conduct prevents the
petitioner from timely filing.” Lawrence v. Florida, 421 F.3d 1221, 1226 (11th
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Cir. 2005). The petitioner bears the burden of showing that equitable tolling is
warranted. See Drew, 297 F.3d at 1286.
We have ruled that a petitioner was entitled to equitable tolling where the
state court had assured the petitioner that it would contact him as soon as a
decision was made, the court subsequently sent notice of the decision to the wrong
person, and the petitioner demonstrated diligence in inquiring about the status of
his case when the court failed to contact him after 15 months. Knight, 292 F.3d at
710-711. In Knight, however, we observed that a habeas petitioner is not
necessarily entitled to “equitable tolling until he receives notice.” Id. at 711;
see also Drew, 297 F.3d at 1289 (holding that habeas petitioner was not entitled to
equitable tolling where he claimed to have contacted the state court by mail, but
provided no copies of the letters and did not make attempts to contact the court in
another manner, such as calling or seeking help from a person with the ability to go
to the court personally).
Here, Logreira began contacting the Florida appellate court to inquire about
the status of his state habeas petition nine months sooner than the petitioner in
Knight initiated his inquiries to the Georgia Supreme Court. Knight, 292 F.3d at
710-11. However, unlike in Knight, here there was no personal assurance
indicating that Logreira would be contacted at the conclusion of his case. Cf.
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Knight, 292 F.3d 711. Moreover, while Logreira provided evidence of his repeated
attempts to contact the Florida appellate court through mail, he did not show that
he took any steps, other than mailing letters, to gain information concerning his
petition. Drew, 297 F.3d at 1289. Finally, after he learned that his state habeas
application had been denied, Logreira waited six months to file the instant § 2254
petition and he provides no explanation, let alone a causal connection, between his
delayed receipt of the Third DCA’s decision and his untimely filing of his § 2254
petition. Cf. Lawrence, 421 F.3d at 1226-27 (refusing to invoke equitable tolling
where habeas petitioner did not establish “a causal connection between his alleged
mental incapacity and his ability to file a timely petition”).
On this record, we cannot find clear error in the district court’s finding that
Logreira failed to meet his burden of showing that he exercised sufficient due
diligence in inquiring with the Florida appellate court concerning the disposition of
his state habeas petition. Accordingly, we will not reverse the district court’s
decision on this basis and affirm the denial of habeas relief. See Drew, 297 F.3d at
1289-90.
AFFIRMED.
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