[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 28, 2006
No. 05-12463 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-01010-CV-J-32-MMH
JUAN SMALLWOOD,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(April 28, 2006)
Before DUBINA, CARNES and HULL, Circuit Judges.
PER CURIAM:
Juan Smallwood, a Florida state prisoner serving a life sentence for felony
murder, appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254
petition as time-barred. Smallwood filed this petition after his previous § 2254
petition was dismissed without prejudice because he failed to pay the appropriate
filing fee, submit an affidavit of indigency, or file an in forma pauperis application,
as required by the Rules of Civil Procedure. The issue for which Smallwood
received a certificate of appealability is:
[w]hether the district court erred by dismissing Smallwood’s 28
U.S.C. § 2254 petition as time-barred when the district court sua
sponte dismissed, without warning, his previous § 2254 petition for
failure to pay the filing fee or move to proceed in forma pauperis?
See e.g., Wilson v. Sargent, 313 F.3d 1315, 1321 (11th Cir. 2002).
When reviewing a district court’s denial of a habeas petition, we review
questions of law de novo. Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000).
We review de novo a district court’s determination that a petition for a writ of
habeas corpus is time-barred. Bond v. Moore, 309 F.3d 770, 772 (11th Cir. 2002).
A one year period of limitation applies to “an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court.”
28 U.S.C. § 2244(d)(1). The limitation period begins on the date on which a
judgment of conviction and sentence become final. 28 U.S.C. § 2244(d)(1)(A).
Section 2244(d)(2) states that “[t]he time during which a properly filed application
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for State post-conviction or other collateral review with respect to the pertinent
judgement or claim is pending shall not be counted toward any period of limitation
under this subsection.” The Supreme Court has held that federal habeas petitions
do not constitute “other collateral review” within the meaning of the statute.
Duncan v. Walker, 533 U.S. 167, 181, 121 S. Ct. 2120, 2129 (2001).
Consequently, § 2244(d)(2) “does not toll the limitation period during the
pendency of [Smallwood’s first] federal habeas petition.” Id. The district court
thus did not err in dismissing Smallwood’s petition as time-barred unless
Smallwood is entitled to equitable tolling.
We have held that “the AEDPA’s statute of limitations may be equitably
tolled 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) (internal quotation marks omitted).
“Equitable tolling is an extraordinary remedy which is typically applied sparingly.”
Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir. 2005). “Equitable tolling is
limited to rare and exceptional circumstances, such as when the State’s conduct
prevents the petitioner from timely filing.” Id.
Smallwood contends that the statute of limitations should be equitably tolled
in his case. He argues that he moved to proceed in forma pauperis before the
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district court dismissed his original petition, and promptly refiled his petition after
receiving notice of dismissal. He relies on Wilson v. Sargent, 313 F.3d 1315 (11th
Cir. 2002), to assert that the district court had an obligation to warn him that his
original petition was on the verge of dismissal if the filing fee was not paid.
Smallwood contends that, based on the lack of notice, the district court abused its
discretion when it dismissed his second petition as time-barred, as he did
everything required of him.
After reviewing the record and both parties’ briefs, we conclude that it is
unnecessary to decide whether the district court erred in sua sponte dismissing
Smallwood’s first federal habeas petition without notice because Smallwood is not
entitled to equitable tolling. Smallwood was not the victim of “extraordinary
circumstances that are both beyond his control and unavoidable even with
diligence,” and, thus, does not qualify for equitable relief. Knight, 292 F.3d at
711. Smallwood does not argue that he never received notice that the district court
dismissed his initial § 2254 petition. Instead, Smallwood stated that he received
notice and chose to file a new petition. Smallwood did not appeal the district
court’s dismissal of his initial § 2254 petition. Since he did not exhaust the options
available to him when his first federal habeas petition was dismissed, he did not
exercise the level of diligence required to show the “rare and exceptional
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circumstances” that qualify a petitioner for equitable tolling. See Lawrence, 421
F.3d at 1226.
The judgment of the district court is
AFFIRMED.
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