                                                           [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________
                                                                    FILED
                                                            U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                 No. 05-10347
                                                                  March 14, 2006
                             Non-Argument Calendar
                                                               THOMAS K. KAHN
                           ________________________                CLERK

                   D. C. Docket Nos. 04-02124-CV-T-17-TGW
                             and 02-00238-CR-T-1

SANTANA SANCHEZ,

                                                                Petitioner-Appellant,

                                       versus

UNITED STATES OF AMERICA,

                                                              Respondent-Appellee.

                           ________________________

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

                                 (March 14, 2006)

Before TJOFLAT, ANDERSON and BIRCH, Circuit Judges.

PER CURIAM:

      Santana Sanchez, a pro se federal prisoner, appeals the district court’s denial

of his motion to vacate, set aside or correct his sentence, which was filed pursuant
to 28 U.S.C. § 2255. We AFFIRM.

                                  I. BACKGROUND

      Sanchez, who is serving a 135-month sentence for drug offenses, filed his

§ 2255 motion on 17 September 2004, and alleged that (1) the district court failed

to consider Amendment 591 to the Sentencing Guidelines, (2) the district court

enhanced his sentence based on facts neither charged in the indictment nor proven

to a jury, and (3) his counsel was ineffective because he failed to present either of

these arguments at sentencing or on direct appeal. The Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214

(1996), governs this appeal because Sanchez filed his motion in September 2004,

after AEDPA’s enactment. The district court, sua sponte, denied the motion

because Sanchez had failed to file within one year of the date when his conviction

became final, as required by AEDPA. Specifically, the court determined that

(1) Sanchez’s conviction became final on 16 September 2003, when the time to file

a petition for a writ of certiorari expired; (2) the one-year statute of limitations ran

until 16 September 2004; and (3) he filed his § 2255 motion on 17 September

2004, which fell outside of the statute of limitations. Regarding Sanchez’s

conviction becoming final on 16 September 2003, the district court found that,

because Sanchez had not filed a petition for a writ of certiorari, his judgment



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became final when the possibility of direct appellate review was exhausted, ninety

days from the entry of judgment, which was 18 June 2003. R1-2 at 2-3.

      Sanchez then filed a motion for reconsideration and argued that the one-year

deadline should have been subject to equitable tolling because exceptional

circumstances existed. Specifically, in the weeks leading up to 16 September

2004, the prison in which he was housed was in lockdown because of an incident

in the prison and impending hurricanes, and, consequently, he was denied access to

the law library and legal supplies. Sanchez filed a second motion for

reconsideration in which he reiterated his arguments and further noted that the

prison was on lockdown from 8 August to 7 September 2004, and that, because he

does not speak or read English, he was required to wait until others were available

to help him file this motion. The district court denied both motions for

reconsideration.

      Sanchez filed a notice of appeal, requested a certificate of appealability

(“COA”), and argued that AEDPA provides an exception to the one-year deadline

when there is a governmental impediment to filing within that time period. He

alleged that the prison’s lockdown status constituted such an impediment and that,

accordingly, the court should issue a COA.

      Sanchez also apparently mailed a letter directly to the district court,



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requesting permission to file an untimely § 2255 motion and moving for equitable

tolling, which the court denied as improper.1 The court noted that, even if it

construed the letter as a proper motion for equitable tolling, a remedy would not be

appropriate because Sanchez failed to (1) show extraordinary circumstances that

were both beyond his control and unavoidable even with due diligence, and (2)

demonstrate that the circumstances surrounding his late filing were anything but

excusable neglect. The district court denied the request for a COA, and found that

Sanchez had not shown that a reasonable jurist would find either the merits of the

underlying claim or the procedural issues debatable. Our court also denied the

request for a COA on the same grounds and determined that Sanchez’s failure to

file within the one-year statute of limitations indicated that there was no debatable

procedural issue. Sanchez then filed a motion to reconsider,2 which we granted

and stated “appellant’s motion for a certificate of appealability is GRANTED on

the following issue only: whether the district court erred in dismissing appellant’s

28 U.S.C. § 2255 motion as time-barred. See Washington v. United States, 243

F.3d 1299, 1301 (11th Cir. 2001).” R1-24.

      On appeal, Sanchez concedes that his § 2255 motion was filed on 17



      1
          A copy of that letter is not included in the record on appeal.
      2
          A copy of that motion is not included in the record on appeal.

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September 2004, one day after the one-year statute of limitations expired, but he

argues that the statute provides for equitable tolling if there was a government

impediment preventing timely filing. He contends that, because a government

actor, the warden of the prison, imposed sanctions in the form of a prison

lockdown, which precluded access to the law library during the time in which he

was preparing his motion, extraordinary circumstances beyond his control and

unavoidable, even with due diligence, existed. Furthermore, he argues, because his

motion was filed only one day late, and the lockdown status lasted for eleven days,

the statute of limitations should have been tolled by at least one day.

                                  II. DISCUSSION

      “Appellate review in a [habeas] proceeding is limited to the issues specified

in the certificate of appealability . . . .” See Diaz v. Secretary for Dep’t of Corrs.,

362 F.3d 698, 702 (11th Cir. 2004) (per curiam) (addressing the COA for a § 2254

habeas petition). We review de novo a district court’s dismissal of a § 2255

motion as time-barred as well as a district court’s finding that equitable tolling

does not apply. Jones v. United States, 304 F.3d 1035, 1037 (11th Cir. 2002) (per

curiam).

      The AEDPA imposes a one-year statute of limitations for filing a § 2255

motion, which begins to run following one of four events, including, “the date on



                                            5
which the judgment of conviction becomes final” and “the date on which the

impediment to making a motion created by governmental action in violation of

the Constitution or laws of the United States is removed, if the movant was

prevented from making a motion by such governmental action.” 28 U.S.C.

§ 2255(1), (2). We have applied AEDPA's statute of limitations in light of Federal

Rule of Civil Procedure 6(a) and held that the statute of limitations begins to run

on the day following the date when the conviction became final. Washington v.

United States, 243 F.3d 1299, 1301 (11th Cir. 2001). In that case, where the

conviction became final on 6 October 1997, we concluded that the defendant had

until 7 October 1998 to file his § 2255 motion. Id. Additionally, the one-year

statute of limitations period may be equitably tolled “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) (per curiam). This remedy, however, is extraordinary, and the

federal courts typically apply it sparingly. Steed v. Head, 219 F.3d 1298, 1300

(11th Cir. 2000) (discussing 28 U.S.C. § 2244).

      In this case, we explicitly granted a COA on the sole issue of “whether the

district court erred in dismissing appellant’s 28 U.S.C. § 2255 motion as time-

barred. See Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001).”



                                          6
R1-24. Sanchez’s conviction became final on 16 September 2003, and, under

Washington, he had until 17 September 2004 to file his § 2255 motion. Although

Sanchez filed his motion on 17 September 2004, he does not raise any arguments

based upon Washington and concedes that his motion was filed one day late.

While pro se pleadings are to be construed liberally, Mederos v. United States, 218

F.3d 1252, 1254 (11th Cir. 2000), Sanchez failed to brief and argue this issue in

any way, and, consequently, has abandoned it, Baker v. Montgomery, 811 F.2d

557, 558 n.1 (11th Cir. 1987).

      Sanchez’s sole argument on appeal is based on a conflation of equitable

tolling and the existence of some government impediment to the filing of his

motion, pursuant to § 2255(2). As we have explained, the COA only addressed the

issue of whether Sanchez’s motion was time-barred in light of Washington;

therefore, any arguments relating to equitable tolling or government impediments

are not properly before us and should be dismissed. See Diaz, 362 F.3d at 702.

Sanchez’s argument that the issues of equitable tolling and the time-bar cannot be

divorced, since his motion for reconsideration was based exclusively on equitable

tolling, is misguided because we sua sponte raised the issue of whether, in view of

Washington, Sanchez’s motion was time-barred.

      Even if we had the authority to address Sanchez’s government-impediment



                                          7
argument under § 2255(2), it fails. As we have held in a similar case involving a

lockdown, to prevail under this statute, an alleged governmental impediment must

be unconstitutional, such as one that is “not reasonably related to legitimate

penological interests.” Akins v. United States, 204 F.3d 1086, 1090 (11th Cir.

2000) (internal quotations and citations omitted). Sanchez does not argue that the

lockdown status of the prison, because of some unspecified incident and the

impending hurricanes, was unconstitutional, or even inappropriate. Furthermore,

we have held that “[t]he mere inability of a prisoner to access the law library is not,

in itself, an unconstitutional impediment.” Id. Therefore, the lockdown status

cannot be considered a § 2255(2) impediment.

      Regarding Sanchez’s equitable tolling argument, we held in Akins that

equitable tolling was not appropriate during periods of various lockdowns, when

the movant had over four years prior to the enactment of AEDPA, at least seven

months after he obtained a transcript that he deemed necessary to his case, and at

least six months after the enactment of AEDPA in which to file his motion. Akins,

204 F.3d at 1089. Prior to the lockdown, Sanchez had nearly eleven months, from

16 September 2003 until 8 August 2004, to file his motion and was in lockdown

for only eleven days. Furthermore, he offers no explanation for why he was unable

to file within that time, other than a general statement that he does not read or



                                           8
speak English and, thus, had to wait for others to assist him.

      Finally, even if Sanchez’s § 2255 motion were not time-barred, it appears

unlikely that he would succeed on the merits. In his motion, he advanced three

arguments: (1) the district court failed to consider Amendment 591 to the

Sentencing Guidelines; (2) the district court enhanced his sentence based on facts

neither charged in the indictment nor proved to a jury; and (3) his counsel was

ineffective because he failed to present either of these arguments at sentencing or

on direct appeal. First, Amendment 591 addresses issues under U.S.S.G. § 2D1.2,

see U.S.S.G. Supp. App. C, amend. 591, but Sanchez was sentenced pursuant to

§ 2D1.1. Second, we have held that United States v. Booker, 543 U.S. 220, 125

S.Ct. 738 (2005), on which Sanchez presumably bases his second argument, does

not apply retroactively to § 2255 cases on collateral review. See Varela v. United

States, 400 F.3d 864, 867-68 (11th Cir.) (per curiam), cert. denied, __ U.S. __, 126

S.Ct. 312 (2005). Finally, at the time when Sanchez was sentenced, the Sentencing

Guidelines allowed the judge to engage in judicial factfinding. See, e.g., Booker,

543 U.S. at __, 125 S.Ct. at 751. Consequently, it is unlikely that Sanchez’s

attorney was ineffective for failing to argue either issue.




                                           9
                                III. CONCLUSION

      In this appeal, Sanchez argues that the district court erred in denying his §

2255 motion. Because Sanchez fails to argue, as directed in our COA, whether,

under Washington, his motion was timely, and actually concedes that his motion

was untimely, we AFFIRM.




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