                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                      FILED
                                                           U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                               No. 04-12231                      October 28, 2005
                         ________________________             THOMAS K. KAHN
                                                                     CLERK
                  D. C. Docket No. 03-00955-CV-J-99-MCR


TRASK B. FELTON,

                                                              Petitioner-Appellant,
                                     versus

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

                                                           Respondents-Appellees.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________
                              (October 28, 2005)


Before BLACK, WILSON and COX, Circuit Judges.

PER CURIAM:

     Trask B. Felton (“Felton”) appeals the district court’s dismissal of his 28
U.S.C. § 2254 petition as time-barred under the Antiterrorism and Effective Death

Penalty Act, 28 U.S.C § 2244 (the “AEDPA”).

       This court granted Felton’s motion for a certificate of appealability on the

following issue only:

               Whether the district court erred by concluding that the
               one-year statute of limitations for filing Appellant’s 28
               U.S.C. § 2254 petition was not tolled after the state court
               entered its order denying Appellant’s motion for a
               rehearing on his state habeas corpus petition, even
               though the state court never issued its mandate on
               Appellant’s state habeas corpus petition.

       At issue in this case is the period during which the statute of limitations was

tolled because of the pendency of Felton’s petition for a writ of habeas corpus in

Florida’s First District Court of Appeal.1 Felton filed the petition on December 2,

2002. It was denied on April 28, 2003, and Felton’s motion for rehearing was

denied on June 12, 2003. No mandate ever issued. Felton filed his 28 U.S.C. §

2254 petition on November 6, 2003. He contends that, because no mandate


       1
         In their initial appellate briefs, both parties agreed on the relevant dates. At oral
argument and in supplemental briefing, though, the State pointed out that the December 2, 2002
petition was dismissed for failure to serve the state with a copy of the petition. The First District
Court of Appeal reinstated the petition on April 7, 2003. Eliminating the time between
December 2, 2002 and April 7, 2003 would increase the time by which Felton’s ultimate federal
petition for habeas relief was untimely by 126 days, meaning that the petition would have been
filed 227 days too late. This fact would render the 147 days of potential equitable tolling
irrelevant. However, since the result will be the same whether or not we consider the State’s new
argument, we decline to consider it and assume arguendo that the earlier filing date of December
2, 2002 applies.

                                                 2
issued, the statute was tolled from the date he filed his state habeas petition until

the date he filed his federal habeas petition, or, alternatively, that the court should

have equitably tolled the statute during the 147-day period following the denial of

his motion for rehearing in the state habeas proceeding.

      Felton argues that he never had actual notice of the finality of the district

court of appeal’s ruling on his motion for rehearing because a mandate never

issued following the court’s ruling denying the motion. The State contends that

this state habeas petition was an original proceeding in the court of appeal, and

that Florida law does not require a mandate in such a proceeding.

      We agree with the State. Felton grounded his state habeas petition on

claims of ineffective assistance of appellate counsel. The Florida Rules of

Appellate Procedure treat such a filing as an original proceeding. Fla. R. App. P.

9.141(c). This treatment is both appropriate and understandable because the

petition effectively asks the appellate court to allow a new appeal, not to mandate

action in a lower court or by any state executive officer. The appellate court could

not issue a mandate in this case because there was no lower court or person to

which the court could direct a mandate.

      The Florida Rules of Judicial Administration clearly contemplate court

actions not requiring a mandate, and they provide procedures for alternative notice

                                           3
to the parties in cases that end without a mandate. Fla. R. Jud. Admin.

2.040(b)(4). In such cases, a party receives notice of finality of the court’s

decision by receipt of a copy of the order or judgment. In this case, the state

court’s order denying the petition included the statement, “NOT FINAL UNTIL

TIME EXPIRES TO FILE REHEARING MOTION AND DISPOSITION

THEREOF IF FILED.” Felton did file a motion for rehearing of the petition, and

the court sent him notification of its denial of the motion on June 12, 2003. The

tolling of the statute of limitations ceased upon denial of the motion for rehearing

because no mandate was required. Accordingly, Felton’s federal habeas petition

was untimely.

      Felton contends that even if his federal petition was untimely, his delay was

excusable and justifies equitable tolling in his favor. To establish a basis for

equitable tolling, a party must establish that (1) some extraordinary circumstance

prevented his timely filing, despite that fact that (2) he has been diligent in

pursuing his rights. Pace v. DiGugliemo, 543 U.S. __, 125 S. Ct. 1807, 1814

(2005); Wade v. Battle, 379 F.3d 1254, 1264 (11th Cir. 2004). Felton argues that

he “diligently waited” for a mandate to issue and that the failure to issue one

constituted an extraordinary circumstance that justifies his delay. We have already

noted, however, that the state court’s order became final upon denial of Felton’s

                                           4
motion for rehearing, and that the court sent notice of its decision to Felton on

June 12, 2003. Despite this notice, Felton did not file his federal habeas petition

until some 147 days later. Thus, even if the court’s failure to issue a mandate is

deemed extraordinary (and we do not think it is), Felton’s 147-day delay

forecloses a finding that he exercised the required due diligence.

      The judgment of the district court dismissing Felton’s 28 U.S.C. § 2254

petition as time-barred is

      AFFIRMED.




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