                                                                                 [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS
                                                                              FILED
                            FOR THE ELEVENTH CIRCUIT                U.S. COURT OF APPEALS
                             ________________________                 ELEVENTH CIRCUIT
                                                                          JULY 06, 2001
                                    No. 00-11399                       THOMAS K. KAHN
                              ________________________                      CLERK


                           D.C. Docket No. 99-00405-CV-AJ

GERALD TINKER,

                                                                       Petitioner-Appellant,

       versus

MICHAEL W. MOORE,
                                                                     Respondent-Appellee.

                             __________________________

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

                                       (July 6, 2001)



Before BARKETT and HULL, Circuit Judges, and LIMBAUGH*, District Judge.

BARKETT, Circuit Judge:

       Gerald Tinker, a Florida prisoner, appeals the dismissal of his petition for


       *
          Honorable Stephen N. Limbaugh, U.S. District Judge for the Eastern District of
Missouri, sitting by designation.
writ of habeas corpus pursuant to 28 U.S.C. § 2254 as time barred. On appeal

Tinker argues that his federal petition should not have been dismissed because the

timely filing of his state motion for post-conviction relief tolled the federal filing

period, notwithstanding that his state petition was filed after the one-year statute of

limitations for federal habeas expired under § 2244(d). In the alternative, Tinker

argues that, if his claim is time barred, the one-year filing period of § 2244(d) is

unconstitutional as applied to him. We affirm.

                                  BACKGROUND

      On March 21, 1995, the State of Florida charged Tinker with armed robbery,

grand theft and possession of cocaine. Tinker was convicted on the robbery

charge, and on January 29, 1997, the Third District Court of Appeal affirmed his

conviction. Tinker v. State, 687 So. 2d 248 (Fla. Dist. Ct. App. 1997). The

mandate issued on February 14, 1997.

      On June 11, 1998, Tinker filed a motion for post-conviction relief pursuant

to Fla. R. Crim. P. 3.850. On July 1, 1998, the state court denied Tinker’s motion.

The Third District Court of Appeal affirmed the denial on December 17, 1998.

Tinker v. State, 727 So. 2d 936 (Fla. Dist. Ct. App. 1998). On February 9, 1999,

Tinker filed his federal petition for writ of habeas corpus pursuant to § 2254.

      The district court dismissed Tinker’s petition as time barred, holding that the


                                           2
limitation period to file his federal habeas petition expired on February 13, 1998,

and that the filing of Tinker’s state motion for post-conviction relief after that date

did not toll the filing deadline. The district court then granted a certificate of

appealability on the issues of (1) whether Tinker’s Rule 3.850 motion tolled the

AEDPA limitations period, and (2) if not, whether 28 U.S.C. § 2244(d)(2), as

applied to Tinker’s petition, is unconstitutional.

      On appeal, we review the district court’s findings of fact under the clearly

erroneous standard. Cunningham v. Zant, 928 F.2d 1006, 1011 (11th Cir. 1991).

Mixed questions of law and fact are reviewed de novo, as are questions of law.

Jacobs v. Singletary, 952 F.2d 1282, 1288 (11th Cir. 1992).

                                    DISCUSSION

      Petitions for the writ of habeas corpus filed pursuant to § 2254 are governed

by the one-year filing limitation period established by § 2244(d). The limitations

period runs from the latest of:

      (A) the date on which the judgment became final by the conclusion of
      direct review or the expiration of the time for seeking such review;

      (B) the date on which the impediment to filing an application created
      by State action in violation of the Constitution or laws of the United
      States is removed, if the applicant was prevented from filing by such
      State action;

      (C) the date on which the constitutional right asserted was initially
      recognized by the Supreme Court, if the right has been newly

                                           3
      recognized by the Supreme Court and made retroactively applicable to
      cases on collateral review; or

      (D) the date on which the factual predicate of the claim or claims
      presented could have been discovered through the exercise of due
      diligence.

28 U.S.C. § 2244(d)(1). The statute further provides that “[t]he time during which

a properly filed application for State post-conviction . . . review with respect to the

pertinent judgment or claim is pending shall not be counted toward any period of

limitation.” 28 U.S.C. § 2244(d)(2). Finally, § 2244 “permits equitable tolling

‘when a movant untimely files because of extraordinary circumstances that are

both beyond his control and unavoidable with diligence.’” Steed v. Head, 219 F.3d

1298, 1300 (11th Cir.2000) (quoting Sandvik v. United States, 177 F.3d 1269,

1271 (11th Cir.1999) (per curiam)).

      Under Florida law, a judgment against a criminal defendant becomes final

upon issuance of the mandate on his direct appeal. See Jones v. State, 602 So. 2d

606, 607-8 (Fla. Dist. Ct. App. 1992). Tinker’s mandate issued on February 14,

1997, and thus he had until February 13, 1998, to file his § 2254 petition, absent

tolling of the limitations period. Florida Rule of Criminal Procedure 3.850(b)

further provides “[a] motion to vacate a sentence that exceeds the limits provided

by law may be filed at any time. No other motion shall be filed or considered

pursuant to this rule if filed more than 2 years after the judgment and sentence

                                           4
became final in a non-capital case.”

       On appeal, Tinker first argues that his properly filed application for state

post-conviction relief tolled the limitations period for his federal habeas petition.

The flaw in this argument, however, is that Tinker did not file his state motion until

June 11, 1998, four months after § 2244(d)’s one-year limitation period had

expired. In Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 1999), we held that

the argument Tinker advances is not a “reasonable construction of § 2244(d)(2)”

because “even ‘properly filed’ state-court petitions must be ‘pending’ in order to

toll the limitations period.” Thus, a state court petition like Tinker’s that is filed

following the expiration of the federal limitations period “cannot toll that period

because there is no period remaining to be tolled.” Id. What Tinker is really

arguing for is not the tolling of § 2244(d)’s limitation period, but for its

reinitiation. See id. However, the statute does not provide for reinitiating under

these facts, and Tinker has failed to assert any extraordinary circumstances under

which tolling would be appropriate. Thus, the district court did not err in

concluding that Tinker’s petition is time barred under § 2244(d).1


       1
         Tinker argues that § 2244(d)’s limitation period does not apply to § 2254 petitions
because § 2254 does not contain a reference to any specified filing limitation and does not
expressly reference § 2244. This argument is foreclosed by Supreme Court and Eleventh Circuit
precedent which hold that the provisions of § 2244 apply to § 2254 petitions. See Artuz v.
Bennett, 531 U.S. 4 (2000); Webster, 199 F.3d at 1257 n.3.

                                              5
       Alternatively, Tinker argues that if his claim is time barred, § 2244(d) is

unconstitutional as applied to him because it violates the Suspension Clause, U.S.

Const. art. I, § 9, cl. 2., and forces him to choose between exercising his right to

meaningful access to the state courts which provide a two-year limitation period

and the right to petition for federal habeas relief.

       We find no merit in Tinker’s argument. In Wyzykowski v. Dep’t of

Corrections, 226 F.3d 1213 (11th Cir. 2000), we said that “as a general matter, the

§ 2244(d) limitation period does not render the collateral relief ineffective or

inadequate to test the legality of detention, and therefore is not an unconstitutional

suspension of the writ of habeas corpus.” Id. at 1217.2 Thus, “§ 2244(d) does not

per se constitute an unconstitutional suspension” of the writ.3 Id. See also

       2
          The Suspension Clause provides: “The Privilege of the Writ of Habeas Corpus shall not
be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
U.S. Const. art. I, § 9, cl. 2. Despite this restriction, the Supreme Court has held that “judgments
about the proper scope of the writ are ‘normally for Congress to make.’” Felker v. Turpin, 518
U.S. 651, 664 (1996) (quoting Lonchar v. Thomas, 517 U.S. 314, 323 (1996)). In Swain v.
Pressley, 430 U.S. 372 (1977), the Supreme Court held that “the substitution of a collateral
remedy which is neither inadequate nor ineffective to test the legality of a person’s detention
does not constitute a suspension of the writ of habeas corpus.” Id. at 381.
       3
          Tinker also asserts that the district court erred in not holding an evidentiary hearing on
his actual innocence claim or to determine whether equitable tolling should apply to this case. In
Wyzykowski, this Court stated “that the factual issue of whether the petitioner can make a
showing of actual innocence should be first addressed, before addressing the constitutional issue
of whether the Suspension Clause requires such an exception for actual innocence” and
remanded the case for “the district court do so in the first instance.” Id. at 1218-19. We reject
Tinker’s argument because (1) in the district court Tinker did not present a claim of actual
innocence, nor did he argue that equitable tolling applied, and (2) on appeal to this Court, Tinker
argues a claim of insufficiency of the evidence, not actual innocence.

                                                 6
Lucidore v. New York State Division of Parole, 209 F.3d 107, 113 (2d Cir. 2000);

Molo v. Johnson, 207 F.3d 773, 775 (5th Cir. 2000) (per curiam); Miller v. Marr,

141 F.3d 976, 978 (10th Cir. 1998). Moreover, the availability of equitable tolling

in cases “when a movant untimely files because of extraordinary circumstances

that are both beyond his control and unavoidable even with diligence,” Steed, 219

F.3d at 1300 (quotation and citation omitted), ensures that § 2244’s limitation is

constitutionally applied, as it was here.

       Further, we reject Tinker’s “impermissible choice” argument. By virtue of

statute, Tinker is provided both a state and federal forum in which to seek post-

conviction relief. Despite his argument to the contrary, he need not forego his state

remedy entirely in order to avail himself of the federal remedy. However, he must

exercise it within one year of the date his judgment became final and do so in a

manner that leaves him sufficient time to timely file his federal petition. 4

       4
            We remind petitioners that a properly and timely filed petition in state court only tolls
the time remaining within the federal limitation period. Thus, care must be taken to assure that
sufficient time remains within the federal statutory period to file the federal petition. For
example, if the federal limitation period begins to run on January 1, and the state petition is
properly filed on July 1, six months of the federal limitation period has run and petitioner only
has six months left from the time the state court rules on his state petition to file his federal
petition. However, should a petitioner wait to file his state petition until only a week remains
before the expiration of the one year federal limitation period, he or she will only have a week
left to file a federal petition before the federal limitation period has expired. Cf. Duncan v
Walker, 121 S.Ct. 2120, 2127 (2001) (“Section 2263(b)(2) provides that the limitations period
shall be tolled from the date on which the first petition for post conviction review or other
collateral relief is filed until the final State court disposition of such petition.”) (internal
quotations omitted).

                                                  7
For all of the foregoing reasons, the judgment of the district court is

AFFIRMED.




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