[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 25, 2007
No. 06-15670 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-01562-CV-T-27-MAP
MARK ALLEN TAYLOR,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 25, 2007)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Mark Allen Taylor, a Florida prisoner proceeding pro se, appeals the
dismissal of his 28 U.S.C. § 2254 federal habeas corpus petition as untimely.
Taylor was convicted of robbery with a deadly weapon in state court in
November 1998. The conviction and sentence were upheld in direct appeals before
the state courts. Following exhaustion of all direct appeals, the applicable
limitations period for federal habeas relief ran from April 17, 2000 until April 17,
2001. On April 18, 2001, one day after the limitations period expired, Taylor filed
a pro se motion for state habeas relief. The state motion, and all appeals arising
from that motion in state court, were subsequently denied. On August 27, 2003
Taylor filed his §2254 petition for federal habeas relief.
Before the district court, the state initially conceded that the §2254 petition
was tolled by the state proceedings and was therefore timely, but argued that it was
procedurally defaulted and without merit. The district court, sua sponte, concluded
that the state erroneously conceded that the suit was not time-barred since the
limitation period lapsed before state habeas proceedings commenced. Further, the
district court determined that Taylor had failed to demonstrate extraordinary
circumstances sufficient to warrant equitable tolling and further failed to establish
a colorable “actual innocence” claim. The district court thus dismissed Taylor’s
petition.
Taylor appealed the district court’s dismissal, and we granted a certificate of
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appealability (“COA”) as to the following issue only: Whether the district court
erred in dismissing appellant’s § 2254 petition as untimely.
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
imposes a one-year period of limitations for writs of habeas corpus. 28 U.S.C.
§ 2244(d)(1)(A). However, “[t]he 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). Further, because § 2244(d) is a statute of limitations
and not a jurisdictional bar, it allows equitable tolling “when a movant untimely
files because of extraordinary circumstances that are both beyond his control and
unavoidable even with diligence.” Sandvik v. United States, 177 F.3d 1269, 1271
(11th Cir. 1999).
Taylor does not dispute that he filed his motion for state habeas relief after
the limitations period had expired. Further, he concedes that there are no
extraordinary circumstances that would justify application of the equitable tolling
doctrine. Thus, the district court did not err in dismissing Taylor’s petition as
untimely. Taylor nevertheless argues that this Court should address the merits of
his § 2254 petition because he is “actually innocent” of the crime of conviction.
However, we have never held that there is an “actual innocence” exception to the
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AEDPA’s one-year statute of limitations, and we decline to do so in the instant
case because Taylor has failed to make a substantial showing of actual innocence.
See Sibley v. Culliver, 377 F.3d 1196, 1205 (11th Cir. 2004). Accordingly, we
affirm.
AFFIRMED.
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