PAUL A. HOWELL, PETITIONER-APPELLANT,
v.
JAMES V. CROSBY, RESPONDENT-APPELLEE
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 habe-as 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. § 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 postconvietion proceedings failed to file a petition for state postconvietion 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, 141 L.Ed.2d 747 (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 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 postconvietion proceeding.
On March 19, 1999, Howell’s attorney filed a motion for an extension of time within which to file a petition for postconvietion relief.
That motion was granted, and Howell’s attorney filed a state petition for postconvietion 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 postconvietion relief.
Artuz v. Bennett, 531 U.S. 4, 8, 121 S.Ct. 361, 364, 148 L.Ed.2d 213 (2000) (“an application” for state postconvietion 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 postconvietion 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 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 Corr.., 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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Howell v. State, 109 So. 3d 763 (Fla. 2013)…quitable tolling [*771] under 28 U.S.C. § 2244(d)(2), because the private attorney appointed to represent Howell during his state postconviction proceedings failed to file a petition for federal habeas relief within the time limit. Howell v. Crosby, 415 F. 3d 1250, 1251 (11th Cir. 2005). The Eleventh Circuit affirmed the dismissal, holding that in order to rely on equitable tolling, Howell was required to show “extraordinary circumstances that are both beyond his control and unavoidable even with diligence” —…
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Chavez v. Sec'y Fla. Dep't OF Corr., 647 F.3d 1057 (11th Cir. 2011)…nt and the speed with which the attorney files court motions and pleadings. The habeas petition’s second allegation about Weissenborn is that he sought and received two extensions of time to file a state post-conviction motion. See Howell v. Crosby, 415 F. 3d 1250, 1251 (11th Cir. 2005) (requests for extensions of time to file motions for state post-conviction relief, and even extensions themselves, do not toll AEDPA’s statute of limitations). But that allegation is simply another way of saying that the mot…
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Lawrence v. State, 421 F.3d 1221 (11th Cir. 2005)…Moreover, we have stated on numerous occasions that “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.” Howell v. Crosby, 415 F. 3d 1250, 1250 (11th Cir.2005); accord Helton v. Secretary for the Dep’t of Corr., 259 F. 3d 1310, 1313 (11th Cir.2001); Steed, 219 F. 3d at 1300; Sandvik, 177 F. 3d at 1270. Lawrence also contends that his mental incapacity prevented him from timely filing…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Artuz v. Bennett, 531 U.S. 4 (U.S. 2000)
- Sandvik v. United States, 177 F.3d 1269 (11th Cir. 1999)
- Steed v. Head, 219 F.3d 1298 (11th Cir. 2000)
- Drew v. Dep't OF Corr., 297 F.3d 1278 (11th Cir. 2002)
- State v. Mahlard K. Boyd, 846 So. 2d 458 (Fla. 2003)
- Howell v. State, 707 So. 2d 674 (Fla. 1998)
- NIX v. Sec'y FOR THE Dep't OF Corr., 393 F.3d 1235 (11th Cir. 2004)
- Kris Edward Helton v. Sec'y FOR THE Dep't OF Corr., 259 F.3d 1310 (11th Cir. 2001)
- Bernie Harry v. Wayne Marchant, M.D., 259 F.3d 1310 (11th Cir. 2001)
- Kendrick v. Gilluhugh, 524 U.S. 958 (U.S. 1998)