           Case: 16-12242   Date Filed: 03/28/2017    Page: 1 of 5


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-12242
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 1:15-cv-00137-JRH-BKE



MICHAEL BERNARD JONES,

                                                           Petitioner-Appellant,

                                versus

WARDEN,

                                                         Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Georgia
                     ________________________

                            (March 28, 2017)

Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Michael Jones, a Georgia prisoner, appeals pro se the dismissal of his

petition for a writ of habeas corpus as untimely. The district court ruled that

Jones’s application on collateral review for a certificate of probable cause to the

Georgia Supreme Court was not “properly filed,” 28 U.S.C. § 2244(d)(2), and did

not toll the statute of limitations because he failed to file a notice of appeal in the

Superior Court of Ware County. Jones argues that he is entitled to equitable tolling

because he was not informed of the federal one-year limitations period and because

he challenges the subject matter jurisdiction of the state trial court. We affirm.

        We review de novo the dismissal of a petition for a writ of habeas corpus as

untimely. Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000).

      The Antiterrorism and Effective Death Penalty Act imposes a one-year

period of limitation for a petition for a writ of habeas corpus filed by a state

prisoner. 28 U.S.C. § 2244(d)(1). The limitations period runs from, among other

things, the date a state prisoner’s conviction becomes final, which is “at the

conclusion of direct review or the expiration of the time for seeking such review.”

Id. § 2244(d)(1)(A); Nix v. Sec’y for Dep’t of Corr., 393 F.3d 1235, 1236–37 (11th

Cir. 2004). When a prisoner appeals to the highest court of a state, the conviction

becomes final when the Supreme Court of the United States denies his petition for

a writ of certiorari or when the period for filing that petition expires. Bond v.

Moore, 309 F.3d 770, 774 (11th Cir. 2002). “The time during which a properly


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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.” 28 U.S.C § 2244(d)(2). To determine whether

a state petition for collateral review has been “properly filed,” we look to the state

law governing that filing. Artuz v. Bennett, 531 U.S. 4, 8 (2000). The Supreme

Court has explained that state rules “usually prescribe, for example, the form of the

document, the time limits upon its delivery, the court and office in which it must be

lodged, and the requisite filing fee.” Id.

         Under Georgia law, a prisoner who seeks appellate review of the denial of a

petition for collateral review must file both an application for a certificate of

probable cause in the Georgia Supreme Court and a notice of appeal in the superior

court:

               If an unsuccessful petitioner desires to appeal, he must
               file a written application for a certificate of probable
               cause to appeal with the clerk of the Supreme Court
               within 30 days from the entry of the order denying him
               relief. The petitioner shall also file within the same
               period a notice of appeal with the clerk of the concerned
               superior court.

O.C.G.A. § 9-14-52(b). Both the application and the notice of appeal must be filed

to invoke the jurisdiction of the Georgia Supreme Court. Fullwood v. Sivley, 517

S.E.2d 511, 514 (Ga. 1999).




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      A state rule governing filings must be “firmly established and regularly

followed” before noncompliance will render a petition improperly filed under

section 2244(d)(2). Siebert v. Campbell, 334 F.3d 1018, 1025 (11th Cir. 2003)

(citation omitted). We have held that the Georgia rule provided by section 9-14-

52(b) is a firmly established and regularly followed jurisdictional rule. Wade v.

Battle, 379 F.3d 1254, 1260–61 (11th Cir. 2004) (no tolling of the federal

limitation period where the Georgia prisoner’s application for a certificate of

probable cause was dismissed as untimely). And we defer to the decision of the

Georgia Supreme Court that a prisoner’s application failed to comply with

section 9-14-52(b). Id. at 1262.

      An otherwise untimely federal petition for habeas relief may be considered if

a prisoner can establish that he is entitled to equitable tolling. See Holland v.

Florida, 560 U.S. 631, 649 (2010). A prisoner is entitled to equitable tolling only if

he has pursued his rights diligently and some extraordinary circumstance beyond

his control prevented a timely filing. Id. The prisoner has the burden of

establishing his entitlement to equitable tolling. Hutchinson v. Florida, 677 F.3d

1097, 1099 (11th Cir. 2012). A lack of a legal education or related confusion does

not constitute an extraordinary circumstance for a failure to file a federal petition in

a timely fashion. See Rivers v. United States, 416 F.3d 1319, 1322–23 (11th Cir.

2005). In McQuiggin v. Perkins, the Supreme Court held that an equitable


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exception to the statute of limitations exists where the prisoner presents new

evidence that establishes that “it is more likely than not that no reasonable juror

would have convicted the petitioner.” 133 S. Ct. 1924, 1933 (2013) (alteration and

citation omitted). But this exception applies “only when a petition presents

evidence of innocence so strong that a court cannot have confidence in the

outcome of the trial unless the court is also satisfied that the trial was free of

nonharmless constitutional error.” Id. at 1936 (citation omitted).

      The district court did not err. Jones filed his federal petition more than one

year after his state conviction became final. Jones’s application, on state collateral

review, for a certificate of probable cause was not “properly filed,” 28 U.S.C.

§ 2244(d)(2), and did not toll the running of the federal limitations period. The

Georgia Supreme Court dismissed Jones’s application because he failed to file a

timely notice of appeal in the state superior court. And Jones failed to establish the

existence of any extraordinary circumstances that prevented him from filing a

timely petition in the district court. Jones’s argument that the state trial court

lacked jurisdiction presents, at most, a claim of legal innocence, not factual

innocence, and does not excuse his failure to file his federal petition sooner. His

petition was untimely.

      AFFIRMED.




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