                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT           FILED
                       ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             APRIL 11, 2012
                              No. 11-10897
                                                              JOHN LEY
                          Non-Argument Calendar
                                                               CLERK
                        ________________________

                  Docket No. 113C-0 : 0:10-cv-62175-WPD


ALLEN T. LUDA,

                                                           Petitioner-Appellant,

                                  versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL OF THE STATE OF FLORIDA,

                                                       Respondents-Appellees.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________
                               (April 11, 2012)


Before EDMONDSON, BARKETT and MARCUS, Circuit Judges.


PER CURIAM:
      Allen T. Luda, a Florida prisoner, appeals the district court’s dismissal of

his pro se 28 U.S.C. § 2254 habeas corpus petition as time-barred. In his section

2254 petition, Luda challenged his convictions for sexual battery on a child and

indecent assault and his resulting life sentence. No reversible error has been

shown; we affirm.

      That Luda’s section 2254 petition was untimely is undisputed. In response

to the magistrate judge’s request for a supplemental memorandum on the

timeliness issue, however, Luda argued that his untimely filing should be excused

(1) because the state trial court delayed his direct appeal proceedings when it

failed to file a complete record with the appellate court, and (2) because his lawyer

failed to file a timely post-conviction motion under Fla.R.Crim.P. 3.850.

      Noting that Luda’s section 2254 petition was untimely and that Luda failed

to allege grounds for equitable tolling, the district court ordered both parties to

brief the issue of whether Luda was entitled to equitable tolling. Luda failed to

respond. The district court dismissed Luda’s petition as time-barred. In the

alternative, the court also addressed and rejected Luda’s claims on the merits.

      The district court then granted a certificate of appealability (“COA”) for

“the issue of whether trial counsel was ineffective in not making a more specific

objection to closing the courtroom to the public and, if so, is this issue time-

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barred.” We read this COA to include whether Luda’s petition was timely filed

and whether he was entitled to equitable tolling. See McCoy v. United States, 266

F.3d 1245, 1248 n.2 (11th Cir. 2001) (explaining that we will read the COA to

encompass procedural issues that must be resolved before we can reach the

underlying claim).

      We review de novo the district court’s dismissal of a federal habeas petition

as time-barred under 28 U.S.C. § 2244(d). Steed v. Head, 219 F.3d 1298, 1300

(11th Cir. 2000). We also review de novo the district court’s determination that

equitable tolling is inapplicable. Id.

      Section 2244(d) imposes a one-year limitation period for filing a section

2254 habeas petition that begins to run on the latest of four triggering events,

including “the date on which the judgment became final.” 28 U.S.C. §

2244(d)(1)(A). A federal habeas petitioner may be entitled to equitable tolling of

the one-year limitation period, however, if he “untimely files because of

extraordinary circumstances that are both beyond his control and unavoidable

even with diligence.” Steed, 219 F.3d at 1300. “Equitable tolling is an

extraordinary remedy which is typically applied sparingly.” Id. The petitioner

bears the burden of establishing that equitable tolling should apply. Drew v. Dep’t

of Corr., 297 F.3d 1278, 1286 (11th Cir. 2002).

                                          3
      Luda’s arguments fail to address adequately his untimely filing. The delays

in his direct appeal proceedings occurred before his judgment became final and,

thus, did not affect the timeliness of his section 2254 petition. In addition, his

lawyer’s alleged delay in filing his state post-conviction motion does not excuse

Luda’s untimely filing because -- even absent a delay in filing his state post-

conviction motion -- over 365 days of untolled time ran before Luda filed his

section 2254 petition. Because Luda has failed to demonstrate either that his

untimely filing was the result of extraordinary circumstances or that he acted with

diligence in pursuing his habeas rights, he is unentitled to equitable tolling. Thus,

Luda’s petition was properly dismissed as time-barred and we need not reach the

merits of the underlying claim identified in the COA.

      AFFIRMED.




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