[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-10114 March 10, 2004
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 01-03082-CV-FAM
LAZARO DIAZ,
Petitioner-Appellant,
versus
SECRETARY FOR THE
DEPARTMENT OF CORRECTIONS,
James Crosby,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 10, 2004)
Before ANDERSON, COX and MAGILL*, Circuit Judges.
PER CURIAM:
*
Honorable Frank J. Magill, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
Petitioner-Appellant, Lazaro Diaz, appeals the district court's decision
dismissing his petition for habeas relief pursuant to 22 U.S.C. § 2254, as amended
by the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). On appeal,
he contends that the one-year limitations period found in 28 U.S.C. § 2244(d)(1)
should be equitably tolled for two reasons. First, he claims that the district court
granted his motion for voluntary dismissal of his initial petition without affording
him notice that the dismissal might effectively result in any later petition being
time-barred. Second, he argues that the limitations period should be tolled due to
the fact that he is asserting a claim of "actual innocence."
I. FACTUAL AND PROCEDURAL BACKGROUND
Diaz was convicted by a Florida jury of two counts of murder and one count
of armed burglary with assault on July 21, 1995. He was sentenced to a term of life
imprisonment. His convictions were affirmed by Florida's Third District Court of
Appeals in a per curiam opinion filed on March 5, 1997, and the mandate issued
approximately two weeks later, on March 21, 1997. The 90-day period in which
Diaz could have filed a petition in the United States Supreme Court expired on
June 19, 1997, at which time the clock began to run on the one-year limitation for
the filing of habeas petitions.
2
Proceeding pro se, Diaz filed his initial petition for habeas relief under §
2254 on March 4, 1998, approximately 258 days after the one-year limitations
period began. On September 17, 1998, 197 days after he filed his petition and 455
days after the one-year limitations period began to run, Diaz moved for a voluntary
dismissal of his petition without prejudice, asserting that he had newly discovered
evidence and additional grounds for collateral relief that he wanted to first present
in state court, and that his petition was prematurely filed. Twenty-eight days later,
on October 15, 1998, the district court granted Diaz's request and dismissed the
petition without prejudice. At that point, 483 days had elapsed since the beginning
of the one-year limitations period.1
Diaz then filed a Rule 3.850 motion for relief in the Miami-Dade County
Circuit Court on November 6, 1998, a filing that was timely under Florida's two-
year statute of limitations. In that motion, Diaz alleged twenty-two grounds for
relief, including allegations of prosecutorial misconduct and ineffective assistance
of counsel. He also claimed that Jose Maqueria, a co-defendant who had been
convicted and sentenced to death for the same crimes, had recanted his trial
testimony in which he implicated Diaz. Diaz provided the state court with an
1
Later, the Supreme Court held that a timely § 2254 petition that is dismissed
without prejudice will not toll the limitation period. Duncan v. Walker, 533 U.S. 167, 121 S.Ct.
2120 (2001).
3
affidavit from Maqueria, along with affidavits from inmates who claimed that
Maqueria told them that Diaz was not involved with the crime.
On January 15, 1999, Diaz filed an amended motion for post-conviction
relief in which he claimed that the "22 grounds for relief" all resulted from his
counsel's ineffective assistance. On January 4, 2000, the state trial court denied
Diaz's 3.850 motion. That decision was affirmed by the Third District Court of
Appeals on July 5, 2000. Diaz's motion for rehearing was denied on August 30,
2000. He then filed a petition for a writ of mandamus on May 11, 2001. That
petition was denied on July 9, 2001.
On June 7, 2001, 274 days after Diaz's motion for rehearing in state court
was denied, Diaz returned to federal court to file his second habeas petition.
Again, he claimed twenty-two grounds for relief based on his counsel's alleged
ineffective assistance. On December 10, 2001, the district court dismissed his
petition as being time-barred.
II. DISCUSSION
A. Equitable Tolling
In 1996, Congress passed the Anti-Terrorism and Effective Death Penalty
Act (“AEDPA”) which added a one-year statute of limitations for the filing of §
4
2254 motions.2 See 28 U.S.C. § 2244(d)(1). The limitations period is tolled by
properly filing direct appeals and collateral relief petitions.3 § 2244(d)(2). This
Court has also held that, in rare circumstances, this period can be equitably tolled.
Drew v. Dep’t of Corr., 297 F.3d 1278, 1286 (11th Cir. 2003). Equitable tolling is
to be applied when “‘extraordinary circumstances’ have worked to prevent an
otherwise diligent petitioner from timely filing his petition.” Helton v. Sec’y for
2
28 U.S.C. § 2244 (d)(1) reads:
A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of--
(A) the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created
by State action in violation of the Constitution or laws of the United
States is removed, if the applicant was prevented from filing by such
State action;
(C) the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly
recognized by the Supreme Court and made retroactively applicable
to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due
diligence.
3
28 U.S.C. § 2244 (d)(2) reads:
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 under this subsection.
5
Dep’t of Corr., 259 F.3d 1310, 1312 (11th Cir. 2001). Thus, the petitioner must
show both extraordinary circumstances and due diligence in order to be entitled to
equitable tolling. Drew, 297 F.3d at 1286-87. Because of the difficult burden, this
Court has rejected most claims for equitable tolling. See, e.g., Sandvik v. United
States, 177 F.3d 1269 (11th Cir. 1999) (holding that attorney negligence will not
warrant equitable tolling); Steed v. Head, 219 F.3d 1298 (11th Cir. 2000) (holding
that attorney’s miscalculation of the limitations period or mistake could not be the
basis for equitable tolling); Helton, 259 F.3d at 1312 (rejecting petitioner’s reliance
upon counsel’s mistaken calculation of limitations period because petitioner did
not show due diligence in ascertaining the correct period); Johnson v. United
States, 340 F.3d 1219 (11th Cir. 2003) (holding that petitioner’s inaction during the
year after his conviction was affirmed on direct appeal did not justify equitable
tolling).
Diaz asserts4 that he is entitled to equitable tolling because the district court
granted his motion to dismiss his initial § 2254 petition without advising him of the
4
Diaz also mentions that the claims asserted in his initial § 2254 petition had actually
been exhausted, and therefore with respect to those claims there was no need for a dismissal
without prejudice so as to pursue state exhaustion. Thus, Diaz suggests that the district court’s
ruling was “error.” We can assume that the ultimate truth is that the claims had in fact been
exhausted, at least in part. However, any such error was invited; Diaz’s motion to dismiss
without prejudice asserted “that his present petition for Writ of Habeas Corpus was filed
prematurely and without complete exhaustion of his available state remedies.”
6
statute of limitations consequences. In making this argument, Diaz relies upon a
number of decisions by other circuits that held that district courts which
recharacterize pro se prisoners’ motions as habeas petitions must give the prisoner
notice so that he might amend and add all claims. See, e.g., United States v. Miller,
197 F.3d 644 (3d Cir. 1999). Since the time of oral argument in this case, the
Supreme Court has decided Castro v. United States, ___ U.S. ___, 124 S.Ct. 786
(2003), in which the Court held that unless pro se prisoners are warned of the
effects of a recharacterization on their right to file a subsequent habeas petition, the
subsequent petition will not be deemed successive. However, this line of cases is
premised on the district court’s sua sponte recharacterization of the motion, and did
not involve a district court’s mere granting of a petitioner’s own motion for
voluntary dismissal. Also, the Court’s rationale for its decision distinguishes it
from the instant case: the warning will “provide[] the litigant with an opportunity to
withdraw, or to amend, the filing.” Id. at ___, 124 S.Ct. at 789. Diaz’s case is
different from the line of cases upon which he relies: this case did not involve a
recharacterization of Diaz’s pleadings; and, significantly, it did not involve any
action taken by the district court, either sua sponte or at the sole request of Diaz’s
opposing party, that prevented Diaz or hindered him from pursuing his pending
claims within the period of the statute of limitations or adding additional
7
allegations challenging his conviction before the expiration of the statute of
limitations. Rather, the district court here merely granted the precise action
requested by Diaz, a voluntary dismissal of his petition without prejudice. Finally,
the instant case is unlike the cases relied upon by Diaz in a more important way
that is crucial to our disposition – Diaz relies upon equitable tolling and he cannot
satisfy its prerequisites.
The only relief sought in this argument by Diaz is relief based on the
doctrine of equitable tolling. As noted above, equitable tolling is available only if
a petitioner establishes both extraordinary circumstances and due diligence. Drew,
297 F.3d at 1286. In this case, Diaz cannot show due diligence. After waiting 258
days to file his initial federal habeas petition, he waited another 274 days before
filing his second federal petition after his motion for rehearing of his state habeas
petition was denied. Without considering the time that the initial federal habeas
was pending5 or the time that the state collateral proceedings were pending,6 the
two foregoing delays total 532 days, exceeding Diaz’s one-year time limitation by
167 days. Diaz offers no excuse for this delay. Thus, this delay alone constitutes a
5
The Supreme Court decided in 2001 that the pendency of a federal habeas petition
did not toll the one-year statute of limitations under 28 U.S.C. § 2254(d)(2). Duncan v. Walker,
supra, n.1.
6
We assume that this time is not counted toward the one-year statute of limitations
under § 2254(d)(2).
8
lack of due diligence and disentitles Diaz to equitable tolling.7
B. Actual Innocence
Diaz argues that § 2244's statute of limitations should be equitably tolled
because he raises a claim of actual innocence. Appellate review in a § 2254
proceeding is limited to the issues specified in the certificate of appealability
(“COA”). Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998).
Because the COA in this case was limited to the question of whether equitable
tolling enlarged the time period for filing, and not whether an actual innocence
claim could equitably toll the statute of limitations, we do not address this issue.
Moreover, it is apparent that Diaz had all of the evidence to pursue this argument at
least by the time that he filed his first federal habeas petition because he attached
Jose Maqueria’s affidavit recanting his trial testimony to that petition. Therefore,
he would not qualify for equitable tolling.
AFFIRMED.
7
Because we conclude that Diaz cannot establish due diligence, we need not
address his suggestion that extraordinary circumstances are established here because the court
addressing his initial federal habeas petition should have advised him of potential statute of
limitations problems before granting his motion to voluntarily dismiss without prejudice. We
realize that such assistance to pro se litigants might be a good thing, but we also realize the
considerable burden that would be placed on busy district courts if, before granting the very
action requested by a pro se litigant, they were required to assume the role of advocate for the pro
se, parse the often hard-to-decipher pleadings, and advise the pro se of all the potential risks of
the requested action. However, because equitable tolling requires both extraordinary
circumstances and due diligence, and because of our resolution on due diligence grounds, we
need not address this issue.
9