           Case: 17-12989   Date Filed: 06/21/2018   Page: 1 of 10


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-12989
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:14-cv-01127-MHT-TFM



ALVIN JAMES JOHNSON,

                                                           Petitioner-Appellant,

                                 versus

WARDEN,
ATTORNEY GENERAL, STATE OF ALABAMA,

                                                       Respondents-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      ________________________

                              (June 21, 2018)

Before NEWSOM, BRANCH, and FAY, Circuit Judges.

PER CURIAM:
              Case: 17-12989     Date Filed: 06/21/2018   Page: 2 of 10


      Alvin Johnson, a formerly pro se Alabama prisoner now proceeding with

counsel, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus

petition as time-barred. We granted a certificate of appealability (“COA”) on

whether the district court erred in concluding that Johnson was not entitled to

equitable tolling.

      We review de novo the district court’s dismissal of a § 2254 petition as

untimely. Pugh v. Smith, 465 F.3d 1295, 1298 (11th Cir. 2006). The district

court’s application of equitable tolling to the facts in a § 2254 proceeding is

reviewed de novo. Cadet v. Fla. Dep’t of Corr., 853 F.3d 1216, 1221 (11th Cir.

2017), cert. denied, 138 S. Ct. 1042 (2018). We review the district court’s

determination of the facts relevant to equitable tolling for clear error. San Martin

v. McNeil, 633 F.3d 1257, 1265 (11th Cir. 2011). We must affirm the factual

findings of the district court unless “the record lacks substantial evidence to

support them.” Id. (quotation marks omitted). We may affirm the judgment of the

district court in a § 2254 case on any ground supported by the record. Trotter v.

Sec’y, Dep’t of Corr., 535 F.3d 1286, 1291 (11th Cir. 2008).

      Pursuant to the Anti-Terrorism and Effective Death Penalty Act

(“AEDPA”), a § 2254 petition is governed by a one-year statute of limitations that

begins to run on the latest of four triggering events, including the date on which the

challenged judgment became final “by the conclusion of direct review or the


                                           2
              Case: 17-12989     Date Filed: 06/21/2018    Page: 3 of 10


expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A).

Generally, if a state prisoner appeals to the state’s highest court, his conviction

becomes final when the Supreme Court denies certiorari or issues a decision on the

merits, or when the 90-day period in which to file a certiorari petition expires. See

Nix v. Sec’y for Dep’t of Corr., 393 F.3d 1235, 1236-37 (11th Cir. 2004). Pro se

litigants “are deemed to know of the one-year statute of limitations” governing §

2254 petitions. Outler v. United States, 485 F.3d 1273, 1282 n.4 (11th Cir. 2007).

      Statutory tolling allows state prisoners to toll the limitations period while

properly filed state post-conviction actions are pending. 28 U.S.C. § 2244(d)(2).

We have recognized that a petition for post-conviction relief filed pursuant to Ala.

R. Crim. P. 32, as well as appeals filed in state court from the denial of a Rule 32

petition, toll § 2244’s statute of limitations. See Guenther v. Holt, 173 F.3d 1328,

1331 (11th Cir. 1999). “The time that an application for state postconviction

review is pending includes the period between (1) a lower court’s adverse

determination, and (2) the prisoner’s filing of a notice of appeal, provided that the

filing of the notice of appeal is timely under state law.” Evans v. Chavis, 546 U.S.

189, 191 (2006) (quotation marks omitted). Thus, when an order denying a state

post-conviction petition is not timely appealed, AEDPA’s statute of limitations

begins to run on the date that the state petition was initially denied. See id. at 192.




                                           3
              Case: 17-12989      Date Filed: 06/21/2018    Page: 4 of 10


      Under Alabama law, a prisoner has 42 days to file a notice of appeal of the

denial of his Rule 32 petition. See Ala. R. App. P. 4(b)(1). The 42-day period

begins to run on the date of the trial court’s denial of the prisoner’s petition.

Barfield v. State, 703 So. 2d 1011, 1012 (Ala. Crim. App. 1997). A motion to alter

or vacate a judgment does not toll the time for filing a notice of appeal from the

denial of a Rule 32 petition. Loggins v. State, 910 So. 2d 146, 149 (Ala. Crim.

App. 2005). Alabama has adopted the prison mailbox rule, which presumes that a

pro se prisoner files his Rule 32 petition when he delivers the petition to prison

authorities for mailing. Holland v. State, 621 So. 2d 373, 375 (Ala. Crim. App.

1993).

      Equitable tolling allows a state prisoner to toll AEDPA’s statute of

limitations based on “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). The prisoner must show both “(1) that he has been pursuing

his rights diligently, and (2) that some extraordinary circumstance stood in his way

and prevented timely filing.” Holland v. Florida, 560 U.S. 631, 649 (2010)

(quotation marks omitted). Equitable tolling is “an extraordinary remedy” that “is

typically applied sparingly.” Arthur v. Allen, 452 F.3d 1234, 1252 (11th Cir. 2006)

(quotation marks omitted). The focus of the “extraordinary circumstances” inquiry

“is on the circumstances surrounding the late filing of the habeas petition . . . and


                                            4
              Case: 17-12989      Date Filed: 06/21/2018   Page: 5 of 10


whether the conduct of others prevented the petitioner from timely filing.” Id. at

1253 (quotation marks omitted). There must also be a causal connection between

the extraordinary circumstances and the late filing of the petition. San Martin, 633

F.3d at 1267-68. A prisoner bears the burden of proving that he is entitled to

equitable tolling. Id. at 1268.

      Equitable tolling may be warranted when a government official affirmatively

misleads a prisoner. Spottsville v. Terry, 476 F.3d 1241, 1245 (11th Cir. 2007). In

Spottsville, we held that a state prisoner was entitled to equitable tolling when a

state appellate court told him to file his certificate of probable cause with the

wrong court and the state prisoner followed the state court’s instructions “to the

letter.” Id. at 1243-46. And in Knight v. Schofield, we held that a state prisoner

was entitled to equitable tolling when he had received assurance from a clerk at a

state court that he would be notified when the court ruled on his post-conviction

motion, the court failed to inform him when it denied his motion, and the

limitations period lapsed while he was waiting. 292 F.3d 709, 710-11 (11th Cir.

2002).

      The Supreme Court has held that, even assuming that the prisoner has

satisfied the extraordinary-circumstances prong, his failure to advance “his claims

within a reasonable time of their availability” will defeat the diligence prong where

advancing the claims in state post-conviction proceedings within a reasonable


                                           5
              Case: 17-12989     Date Filed: 06/21/2018    Page: 6 of 10


period would have eliminated the timeliness problem in federal court. See Pace v.

DiGuglielmo, 544 U.S. 408, 418-19 (2005). Specifically in Pace, the prisoner

failed to assert his claims more than a year after they became available to him and

waited five months after his state proceedings had ended before seeking relief in

federal court. See id.

      The Supreme Court held in Martinez v. Ryan that the ineffective assistance

of counsel in state post-conviction proceedings could serve as cause to excuse the

procedural default of an ineffective-assistance-of-trial-counsel claim that was not

properly exhausted in state court. See 566 U.S. 1, 18 (2012). We have

consistently rejected the argument, however, that Martinez provides a basis for

equitable tolling of the statute of limitations. See Chavez v. Sec’y Dep’t of Corr.,

742 F.3d 940, 946 (11th Cir. 2014). We have also rejected the argument that we

should broaden the equitable reasoning behind Martinez because it would ignore

the Supreme Court’s statement that Martinez created only a narrow exception to

the procedural default doctrine. Arthur v. Thomas, 739 F.3d 611, 631 (11th Cir.

2014).

      Here, the district court did not err in determining that Johnson was not

entitled to equitable tolling. Johnson did present evidence that he attempted to

diligently pursue his rights by filing a timely notice of appeal, as he attached a

certificate of service and a purported prison mailbox log that showed that he


                                           6
              Case: 17-12989      Date Filed: 06/21/2018    Page: 7 of 10


attempted to properly and timely serve the clerk of the trial court with his notice of

appeal of the denial of his Rule 32 petition, and an unspecified “clerk’s record”

that purported to show that Johnson filed two notices of appeal. See San Martin,

633 F.3d at 1268. And, if Johnson is correct and his state appeal had been properly

filed, he would have been entitled to the additional statutory tolling while his

appeal was pending and his § 2254 petition would have been timely, which would

demonstrate the causal connection between the state’s error and his untimeliness.

See Chavis, 546 U.S. at 191-92; Holt, 173 F.3d at 1331; San Martin, 633 F.3d at

1267-68.

      However, this evidence does not demonstrate the extraordinary

circumstances required for equitable tolling due to a government official’s

purported error. See Spottsville, 476 F.3d at 1245; Holland, 560 U.S. at 649. The

evidence was not irrefutable proof that Johnson timely filed his notice of appeal

and thus does not render clearly erroneous the district court’s determination that he

did not show extraordinary circumstances. See San Martin, 633 F.3d at 1265.

Notably, Johnson failed to raise this alleged error before the state appellate court

during his Rule 32 proceedings, casting doubt on his version of events. The clerk

of the trial court also stated that it did not have his notice of appeal and the

appellate court stated that it did, further indicating that Johnson’s own mistake

caused his appeal to be untimely. Unlike the prisoners in Knight and Spottsville,


                                            7
               Case: 17-12989    Date Filed: 06/21/2018   Page: 8 of 10


who clearly demonstrated that the courts’ mistakes had caused them to file their §

2254 petitions out of time, Johnson did not clearly show that the state court

misplaced his notice of appeal and caused him to lose statutory tolling, as there

was evidence indicating that the mistake was his own fault. See Spottsville, 476

F.3d at 1243-46; Knight, 292 F.3d at 710-11; see also San Martin, 633 F.3d at

1268.

        Furthermore, Johnson did not demonstrate that he exercised reasonable

diligence in pursing his rights once the state’s alleged error was pointed out to him.

See San Martin, 633 F.3d at 1267. Johnson waited until June 11, 2014, to remedy

the issue with his notice of appeal, despite being informed of it on May 30.

Johnson also failed to pursue available avenues to correct this problem during the

state proceedings, as he did not request an out-of-time appeal once he was

informed that the trial court did not have his notice of appeal after the 42 days had

expired, and he did not file a protective § 2254 petition with the district court when

it became clear that the time for filing a notice of appeal had expired and his

federal rights could be prejudiced. See San Martin, 633 F.3d at 1267; see also

Outler, 485 F.3d at 1282 n.4.

        Moreover, even if Johnson had diligently pursued his rights during his Rule

32 proceedings, he provides no explanation as to why he waited 264 days after his

conviction was final to file his Rule 32 petition in the first place. See Nix, 393 F.3d


                                          8
              Case: 17-12989     Date Filed: 06/21/2018    Page: 9 of 10


at 1236-37; see also Trotter, 535 F.3d at 1291. Further, and separately, Johnson

still had four days to file a timely § 2254 petition even following the final

resolution of his Rule 32 proceedings. See Chavis, 546 U.S. at 191-92; Holland,

621 So. 2d at 375. Yet he waited 46 days to file it. Though, unlike the situation in

Pace, Johnson did not wait an entire year after his claims originally became

available or five months to file his § 2254 petition after his state proceedings had

ended, Johnson did not make any showing that he diligently pursued his rights

outside of his actual Rule 32 proceedings. See Pace, 544 U.S. at 418-19.

      Finally, Johnson is not entitled to relief under Martinez. This Court has held

that Martinez does not apply to equitable tolling and has expressly declined to

broaden Martinez’s reasoning to pro se litigants outside of the narrow exception it

provides in the procedural-default context. See Chavez, 742 F.3d at 946; Thomas,

739 F.3d at 631. Further, Johnson’s former pro se status does not entitle him to

equitable tolling, as pro se litigants are responsible for knowing and complying

with the statute of limitations. See Outler, 485 F.3d at 1282 n.4. Accordingly,

Johnson has not demonstrated that he is entitled to the “extraordinary remedy” of

equitable tolling. See Arthur, 452 F.3d at 1252.

                                       * * *

      The district court did not err when it determined that Johnson was not

entitled to equitable tolling because its finding that Johnson did not timely file a


                                           9
             Case: 17-12989     Date Filed: 06/21/2018   Page: 10 of 10


notice of appeal of the denial of his state post-conviction motion was not clearly

erroneous based on the evidence that Johnson presented. Additionally, Johnson

did not demonstrate reasonable diligence because he did not attempt to protect his

rights when it became clear that his state post-conviction appeal would likely be

dismissed as untimely and he waited 264 days after his conviction became final to

begin his state post-conviction proceedings.


      AFFIRMED.




                                         10
