[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
July 6, 2005
THOMAS K. KAHN
No. 04-16542 CLERK
________________________
D. C. Docket No. 04-00299-CV-MCR-MD
PAUL A. HOWELL,
Petitioner-Appellant,
versus
JAMES V. CROSBY,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 6, 2005)
Before BIRCH, BARKETT and PRYOR, Circuit Judges.
PRYOR, Circuit Judge:
The only issue in this appeal is whether the district court erred when it
dismissed as untimely the petition for a writ of habeas corpus filed by Paul A.
Howell, a Florida prisoner under a sentence of death. Howell concedes that he did
not file his petition within the one-year statute of limitations imposed by the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C.
section 2244(d)(1), but Howell argues that he is entitled to equitable tolling under
section 2244(d)(2). Howell contends that the statute of limitations should be tolled
because the private attorney appointed to represent Howell during his state
postconviction proceedings failed to file a petition for state postconviction relief
within one year after Howell’s conviction and sentence became final. Because any
negligence of Howell’s attorney fails to satisfy either of the two prerequisites for
equitable tolling, we affirm the dismissal of Howell’s petition.
A Florida jury convicted Howell of making the pipe bomb that killed Florida
State Trooper Jimmy Fulford. Howell’s conviction and capital murder sentence
became final on June 26, 1998, when the Supreme Court of the United States
denied Howell’s petition for a writ of certiorari. Howell v. State, 707 So. 2d 674
(Fla.), cert. denied, 524 U.S. 958, 118 S. Ct. 2381 (1998). Howell had one year
within which he could file a petition for a writ of habeas corpus in a federal district
court, but a “a properly filed application for State post-conviction or other
collateral review” would have tolled the federal statute of limitations. 28 U.S.C. §
2244(d)(1)(A), (d)(2). On December 21, 1998, the Circuit Court of Jefferson
County, Florida, appointed an attorney to represent Howell in his state
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postconviction proceeding. On March 19, 1999, Howell’s attorney filed a motion
for an extension of time within which to file a petition for postconviction relief.
That motion was granted, and Howell’s attorney filed a state petition for
postconviction relief on August 30, 1999, more than two months after the federal
limitations period elapsed. It is undisputed that Howell’s motion for an extension
of time did not meet the criteria of section 2244(d)(2) as a “a properly filed
application” for postconviction relief. Artuz v. Bennett, 531 U.S. 4, 8, 121 S. Ct.
361, 364 (2000) (“an application” for state postconviction relief “is ‘properly filed’
when its delivery and acceptance are in compliance with the applicable laws and
rules governing filings”); State v. Boyd, 846 So. 2d 458, 459-60 (Fla. 2003)
(distinguishing motions for extensions of time, under Fla. R. Crim. P. 3.050, and
those for postconviction relief, under Fla. R. Crim. P. 3.850).
Howell must rely on equitable tolling, “an extraordinary remedy which is
typically applied sparingly,” Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000),
to have his federal habeas petition considered. “Equitable tolling is appropriate
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). “This Court reviews de novo a
district court’s determination that a petition for federal habeas corpus relief is
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time-barred.” Nix v. Sec’y for the Dep’t of Corrs., 393 F.3d 1235, 1236 (11th Cir.
2004). “We also review a district court’s legal decision on equitable tolling de
novo. However, the district court’s determinations of the relevant facts will be
reversed only if clearly erroneous.” Drew v. Dep’t of Corrs., 297 F.3d 1278, 1283
(11th Cir. 2002) (internal citations omitted). Whether a petitioner was diligent is a
finding of fact. Id.
Howell’s argument for equitable tolling fails. Howell was not a victim of
extraordinary circumstances beyond his control, and the district court did not
commit clear error when it determined that Howell was not diligent. As we
concluded in Sandvik, Steed, and Helton v. Secretary for the Department of
Corrections, 259 F.3d 1310, 1313 (11th Cir. 2001), attorney negligence is not a
basis for equitable tolling, especially when the petitioner cannot establish his own
diligence in ascertaining the federal habeas filing deadline. The dismissal of
Howell’s petition as untimely by the district court is, therefore,
AFFIRMED.
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