            Case: 12-13084   Date Filed: 05/28/2013   Page: 1 of 6


                                                         [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-13084
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 1:11-cv-22860-MGC



LUIS A. PEREZ,

                                                           Petitioner-Appellant,

                                   versus

STATE OF FLORIDA,

                                                          Respondent-Appellee.

                        ________________________

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

                               (May 28, 2013)

Before DUBINA, Chief Judge, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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          Appellant Luis Perez, a Florida state prisoner proceeding pro se, appeals the

district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition as untimely

under the one-year statute of limitations of the Antiterrorism and Effective Death

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

district court adopted the magistrate judge’s finding that Perez was not entitled to

equitable tolling of the statutory period because he had not demonstrated diligence

in pursuing his rights. The district court then granted a certificate of appealability

(“COA”) as to whether Perez’s claim was time-barred and whether equitable

tolling should have applied. On appeal, Perez does not dispute that the one-year

limitation period had expired, but argues that the limitation period should be

equitably tolled because he exercised due diligence and extraordinary

circumstances prevented him from timely filing his federal petition. The

extraordinary circumstances that Perez asserts include his illiteracy, ignorance of

the law, pro se status, lack of English-language proficiency, and dependence on the

assistance of inmate law clerks. Additionally, he asserts that the prison employees’

harassment of other inmates who were assisting him with his habeas petition

presented him from timely filing. He also asserts, for the first time on appeal, that

the prison’s lack of Spanish-language legal materials prevented him from timely

filing.




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      We review de novo the district court’s denial of a 28 U.S.C. § 2254 petition

as untimely. See Hepburn v. Moore, 215 F.3d 1208, 1209 (11th Cir. 2000). We

also review de novo the district court’s denial of equitable tolling of the statutory

period. Chavez v. Sec’y, Fla. Dep’t of Corrs., 647 F.3d 1057, 1060 (11th Cir.

2011), cert. denied, 132 S. Ct. 1018 (2012). However, we do not consider

arguments raised for the first time on appeal. Nyland v. Moore, 216 F.3d 1264,

1265 (11th Cir. 2000) (involving a pro se § 2254 petitioner). We review a district

court’s factual findings for clear error, and will affirm the findings of fact unless

“the record lacks substantial evidence” to support the determinations. Drew v.

Dep’t of Corrs., 297 F.3d 1278, 1283 (11th Cir. 2002) (citation omitted). A

determination regarding whether a party exercised diligence is a factual finding

that we review for clear error. Id.

      Pursuant to 28 U.S.C. § 2244(d)(1), as amended by the AEDPA, a § 2254

petition is governed by a one-year statute of limitations that begins to run on the

latest of four triggering events, one of which being the date on which a judgment

of conviction becomes final. 28 U.S.C. § 2244(d)(1)(A). The one-year limitation

period for filing a § 2254 petition is tolled while a properly filed application for

state post-conviction review is pending. 28 U.S.C. § 2244(d)(2). Here, the parties

do not dispute that the one-year limitations period had expired, and Perez concedes




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that his federal habeas petition was untimely. Thus, the only issue on appeal is the

applicability of equitable tolling.

      The statute of limitations may be equitably tolled only when a petitioner

shows (1) that he pursued his rights diligently, and (2) “that some extraordinary

circumstance” prevented a timely filing. Holland v. Florida, 560 U.S.         ,   , 130

S. Ct. 2549, 2562 (2010) (quoting Pace v. DiGulielmo, 544 U.S. 408, 418, 125 S.

Ct. 1807, 1814 (2005)). Equitable tolling is an extraordinary remedy that is limited

to rare and exceptional circumstances. Hunter v. Ferrell, 587 F.3d 1304, 1308

(11th Cir. 2009) (internal quotation marks omitted). However, its application

requires flexibility and review on a case-by-case basis. Holland, 560 U.S. at       ,

130 S. Ct. at 2563. The petitioner seeking equitable tolling bears the burden of

showing that it is warranted. Hunter, 587 F.3d at 1308.

      Although we have characterized the equitable tolling standard as a two-part

test, requiring a defendant to establish both extraordinary circumstances and due

diligence, courts need not consider whether extraordinary circumstances exist if a

petitioner’s delay in filing the federal habeas petition exhibits a lack of due

diligence. Diaz v. Sec’y for Dep’t of Corrs., 362 F.3d 698, 702 & n.7 (11th Cir.

2004) (expressly refusing to consider Diaz’s extraordinary circumstances argument

in light of his unexplained 532-day delay in filing his § 2254 petition). We have

held that a prisoner was not entitled to equitable tolling where he claimed to have


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contacted the state court by mail to determine the status of his case, but did not

provide any evidence or information about his alleged contact attempts. Drew, 297

F.3d at 1288-89. We have also held that a prisoner’s failure to set forth grounds to

excuse his delay in seeking state habeas relief “precludes a finding that he

exercised due diligence.” See Rivers v. United States, 416 F.3d 1319, 1323 (11th

Cir. 2005) (discussing the due diligence requirement of then 28 U.S.C. § 2255

¶ 6(4), now located at § 2255(f)(4)).

      An inability to understand English does not constitute extraordinary

circumstances justifying equitable tolling. United States v. Montano, 398 F.3d

1276, 1280 n.5 (11th Cir. 2005). Furthermore, we have not accepted a lack of a

legal education and related confusion or ignorance about the law as excuses for a

failure to file in a timely fashion. See Rivers, 416 F.3d at 1323 (stating in the

context of a § 2255 proceeding that lack of an education was no excuse for delayed

efforts to vacate a state conviction). As with any litigant, pro se litigants “are

deemed to know of the one-year statute of limitations.” Outler v. United States,

485 F.3d 1273, 1282 n.4 (11th Cir. 2007).

      We conclude from the record here that the district court did not clearly err in

adopting the magistrate judge’s finding that Perez had not demonstrated diligence

in pursuing his rights, as Perez did not set forth grounds to explain or excuse his

delay. Even assuming that Perez satisfied the due-diligence requirement, none of


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the circumstances he alleged before the district court constituted extraordinary

circumstances to justify equitable tolling, and we will not consider his

newly-raised argument that the prison lacked sufficient Spanish-language legal

resources. Accordingly, Perez has not met his burden of showing that equitable

tolling is warranted. Thus, we affirm the district court’s judgment denying Perez’s

habeas petition.

      AFFIRMED.




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