[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 13, 2007
No. 07-11028 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-80484-CV-DMM
PROPHET PAULCIN,
Petitioner-Appellant,
versus
JAMES R. MCDONOUGH,
BILL MCCOLLUM,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 13, 2007)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Prophet Paulcin, a Florida prisoner proceeding pro se, appeals the dismissal
of his habeas corpus petition, 28 U.S.C. § 2254, as time-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). We granted a certificate of
appealability on whether the district court properly determined that Paulcin was not
entitled to equitable tolling. Paulcin asserts he should have been granted equitable
tolling for the time he spent in Santa Rosa County Jail, because he was totally
deprived of access to his legal papers and the law library. He claims he met the
requirements for equitable tolling because he could not file his petition without
access to these legal materials, and he exercised diligence in attempting to gain
access and file his petition.
We review de novo the district court’s decision to deny equitable tolling and
dismiss a § 2254 habeas petition as time-barred. Drew v. Dep’t of Corr., 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. Under the clear error standard, we will “affirm a district court’s findings of
fact unless the record lacks substantial evidence to support that determination.” Id.
(internal quotations omitted).
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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). Further,
the judgment becomes “final” after the expiration of the 90 days in which the
petitioner could file a petition of certiorari. Bond v. Moore, 309 F.3d 770, 774
(11th Cir. 2002). The one-year statute of limitations is tolled by statute while “a
properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).
Additionally, the statute of limitations can be equitably tolled when
extraordinary circumstances beyond a petitioner’s control cause him to file the
petition late, and the untimely filing was unavoidable even with diligence. Drew,
297 F.3d at 1286. If the petitioner fails to establish both extraordinary
circumstances and diligence, then equitable tolling is not available. Diaz v. Sec’y
for Dep’t of Corr., 362 F.3d 698, 702 (11th Cir. 2004). Further, “[e]ach 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. Conclusory allegations may be insufficient to support a claim
that equitable tolling is appropriate. See id. at 1292-93 (holding the district court
did not abuse its discretion in denying an evidentiary hearing on equitable tolling
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when the petitioner only presented conclusory allegations, without supporting
evidence, to support his claim).
In Akins v. United States, 204 F.3d 1086, 1089-90 (11th Cir. 2000), the
movant argued for equitable tolling because (1) he was subjected to lockdowns in
jail for several months, during which he could not access the law library, and
(2) prison officials misplaced his legal papers for a period of time. After noting the
movant had ample time to file his motion when these impediments did not exist,
we declined to apply equitable tolling. Id. at 1090 (evaluating a § 2255 habeas
motion). In Dodd v. United States, 365 F.3d 1273, 1282-83 (11th Cir. 2004), the
movant argued for equitable tolling because he was transferred to a different
facility and detained there for over ten months without access to his legal papers.
We stated “Akins suggests that lockdowns and periods in which a prisoner is
separated from his legal papers are not ‘extraordinary circumstances’ in which
equitable tolling is appropriate.” Id. at 1283. In Dodd, the movant never claimed
his detention was unconstitutional, inappropriate, or outside of routine practice,
and we found that the circumstances were not extraordinary. Id. (evaluating a
§ 2255 habeas motion).
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According to our prior decisions and statements in Akins and Dodd,
Paulcin’s transfer to county jail and denial of access to his legal papers and the law
library did not constitute extraordinary circumstances. Paulcin failed to allege
specifically or present evidence that his detention in county jail, due to pending
criminal charges, was extraordinary or anything other than routine. Additionally,
in the district court, Paulcin asserted only the conclusory allegation that he was
denied access to the library and his records, but failed to allege how his inability to
obtain legal materials thwarted his efforts to file a timely federal proceeding. In
fact, Paulcin filed an appeal of a denial of a Fla. R. 3.850 motion in state court
during the time he had no access to his records or the law library. This fact belies
the allegation that he was prevented from pursing legal redress during his time at
the Santa Rosa County Jail. Because Paulcin failed to establish extraordinary
circumstances, the district court did not err in not applying equitable tolling and
dismissing his petition as time-barred. Accordingly, we affirm.
AFFIRMED.
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