                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                              March 21, 2007
                             No. 06-13393                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                D. C. Docket No. 04-00071-CV-OC-1OGRJ

ERIC LAMAR WILLIAMS,



                                                          Petitioner-Appellant,

                                  versus

STATE OF FLORIDA,
FL ATTORNEY GENERAL,


                                                      Respondents-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                             (March 21, 2007)

Before BIRCH, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      Eric Lamar Williams, a Florida state prisoner proceeding pro se, appeals the

district court’s dismissal of his habeas corpus petition under 28 U.S.C. § 2254, as

barred by the one-year statute of limitations of the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 11 Stat. 1214

(1996). We granted a certificate of appealibility as to the following issue: Whether

the district court erred in finding that Williams was not entitled to equitable tolling

of the AEDPA’s statute of limitations until the date he received actual notice of the

state appellate court’s mandate affirming his resentencing. For the reasons stated

herein, we find no reversible error and affirm.

                                   BACKGROUND

      Williams was convicted in a Florida state court for murder in the first

degree, burglary of a structure while armed, and aggravated assault with a deadly

weapon. He was sentenced to a term of life imprisonment on the murder count and

two terms of ten years’ imprisonment on the other counts to be served concurrent

with each other and consecutive to the life sentence. Williams filed, through

counsel, a motion to dismiss his direct appeal in order to pursue post-conviction

remedies with the trial court. A Florida appellate court granted the motion and

dismissed Williams’s direct appeal on September 8, 2000. On May 17, 2001,

Williams filed a post-conviction motion, alleging ineffective assistance of trial



                                           2
counsel. This motion tolled the statute of limitations until the denial of the motion

was affirmed on July 26, 2002.

       On October 15, 2002, Williams filed, pro se, a motion to correct illegal

sentence pursuant to Fla. R. Crim. P. 3.800(a), which again tolled the statute of

limitations. The motion was granted, his sentence vacated, and he was

resentenced. Williams appealed the resentencing, and the appellate court affirmed

the sentence on October 28, 2003.1 The mandate was issued on November 14,

2003. At this point, Williams had thirty-three days remaining, or until December

17, 2003, to file his § 2254 petition.

       On February 16, 2004, ninety-four days after the mandate issued, Williams

filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in federal

court. The State of Florida filed a response arguing that the petition should be

dismissed as time-barred. In his reply to the State’s response, Williams argued that

his petition should not be barred by the one-year statute of limitations. He argued

that because he filed the habeas petition only four days after receiving notice of the

mandate affirming his resentencing, he was diligent in filing his petition. He

requested to be allowed to proceed with his § 2254 habeas petition.




       1
         His appointed counsel filed Williams’s appeal of his resentencing by filing an Anders
brief. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

                                                3
       The district court construed Williams’s request as a claim for equitable

tolling. The district court determined that Williams’s underlying criminal case

became final on September 8, 2000, and that, after applying statutory tolling based

on Williams’s post-conviction motions, Williams filed his petition over two-and-a-

half months after the deadline for filing his petition had elapsed. Therefore, the

district court found that the petition was time-barred absent equitable tolling. The

district court found that equitable tolling was not applicable because the

untimeliness was not beyond Williams’s control and Williams did not exercise due

diligence in attempting to meet the deadline. In particular, the district court found

that although Williams was aware of the limited time remaining for filing a habeas

petition, he took no steps to determine the status of his pending appeal after his

counsel had filed an Anders brief.

       Williams moved for a Certificate of Appealability (“COA”), arguing that the

district court should have considered his constitutional claims 2 and that his § 2254

petition was not time-barred because the one-year statute of limitations did not

begin to run until after his resentencing was affirmed on November 14, 2003. The

district court denied the COA. We granted a COA on the issue of whether the

district court erred in finding that Williams was not entitled to equitable tolling.


       2
         In his petition, Williams claims that the ineffective assistance of trial and appellate
counsel violated his Sixth Amendment right to legal representation.

                                                  4
                              STANDARD OF REVIEW

      We review de novo the district court’s decision to dismiss a petition for a

writ of habeas corpus. Drew v. Dep’t of Corr., 297 F.3d 1278, 1283 (11th Cir.

2002). We also review the district court’s decision to deny equitable tolling de

novo. Id. However, we review a district court’s determination of the relevant

facts, including those related to a petitioner’s diligence, for clear error. Id.

                                     DISCUSSION

      The AEDPA imposes a one-year statute of limitations for filing a § 2254

habeas petition. 28 U.S.C. § 2244(d)(1). The statute of limitations begins to run

following the latest of four possible events, including “the date on which the

judgment became final. . . .” Id. When a prisoner properly files a state post-

conviction motion, the time during which the motion is pending is not counted

toward the statute of limitations. 28 U.S.C. § 2244(d)(2). Additionally, the statute

of limitations can be equitably tolled where a petitioner “act[s] with diligence, and

the untimeliness of the filing [is] the result of circumstances beyond his control.”

Drew, 297 F.3d at 1286-87. However, this remedy is extraordinary and is applied

sparingly. Id. at 1286. The petitioner bears the burden of showing that equitable

tolling is warranted. Id.

      On appeal, Williams argues that the statute of limitations did not begin to



                                            5
run until the mandate affirming his resentencing was issued on November 14,

2003.3 He contends that the murder conviction was not final until the resentencing

was affirmed. However, Williams’s argument that a new statute of limitations

began to run when his resentencing was affirmed is outside the scope of our review

as defined in the COA. See Murray v. United States, 145 F.3d 1249, 1251 (11th

Cir. 1998) (holding that appellate review is limited to the issues specified in the

COA). Even if this argument was within the scope of our review, Williams’s

argument lacks merit. When a prisoner is resentenced and his § 2254 petition

challenges the resentencing, the statute of limitations begins to run from the date

that the resentencing becomes final. Rainey v. Sec’y for the Dep’t of Corr., 443

F.3d 1323, 1327-28 (11th Cir. 2006). However, when, as in Williams’s case, the

habeas petition does not challenge the resentencing and only challenges his

original conviction, the statute of limitations begins to run from the date that the

original judgment of conviction became final. Id. at 1328.

       On appeal, Williams does not state any reason why he was entitled to

equitable tolling other than that the statute of limitations should not have begun to

run until after his resentencing was affirmed on November 14, 2003. Williams has


       3
         We note that in Williams’s brief he requests that the Court consider the issues
regarding the alleged constitutional errors in his trial, for which he previously requested a COA,
but was denied. We construe this request as a motion to reconsider and expand our granting the
COA, and deny the motion.

                                                 6
not argued that he was entitled to equitable tolling based on his failure to receive

notice of the mandate affirming his resentencing. Therefore, Williams has

apparently abandoned the issue of equitable tolling. See Irwin v. Hawk, 40 F.3d

347, 347 n.1 (11th Cir. 1994) (holding that a pro se litigant abandoned an issue by

not challenging it on appeal). However, even if Williams had not abandoned the

issue, we find that the district court did not err in finding that Williams was not

entitled to equitable tolling.

        In Knight v. Schofield, 292 F.3d 709 (11th Cir. 2002), we ruled that a

petitioner was entitled to equitable tolling because he was assured by a state court

that it would contact him as soon as a decision was made concerning the final

disposition of his appeal, and the court inadvertently sent notice of the decision to

the wrong person. We found that the petitioner demonstrated diligence in

inquiring about the status of his case when the court failed to contact him, and the

court’s failure to notify Knight was certainly beyond his control. Id. at 711.

However, we stated that a prisoner is not necessarily entitled to “equitable tolling

until he receives notice.” Id. In Drew, we ruled that a petitioner was not entitled to

equitable tolling when he claimed to have contacted the state court by mail, but

provided no copies of the letters and did not make any attempt to contact the court

in another manner, such as by calling or seeking help from a person with the ability



                                           7
to go to the court personally. 297 F.3d at 1289.

      Unlike the petitioner in Knight, Williams did not receive a personal

assurance that he would be contacted at the conclusion of his case. See Knight,

292 F.3d at 711. However, Williams claims that he did not know until February

12, 2004 that the Florida Court of Appeals had affirmed his resentencing on

November 14, 2003; therefore, he argues the he was diligent because he filed his

habeas petition only four days later. While Williams’s filing his habeas petition

four days after learning of the state court of appeals’ mandate affirming his

resentencing is evidence of some degree of diligence, we do not find that the

district court clearly erred in finding that Williams failed to act diligently. As the

district court noted, Williams did not provide any evidence that he attempted to

learn the status of his appeal even though he conceded that he knew that the statute

of limitations for filing a federal habeas petition had almost run. Furthermore, the

record does not support a conclusion that the untimeliness of his petition was

beyond his control. See Drew, 297 F.3d at 1286. Accordingly, we find that

Williams has failed to meet his burden. He was not entitled to equitable tolling.

Therefore, we affirm the district court’s order dismissing Williams’s habeas

petition as time-barred.

      AFFIRMED.



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