           Case: 14-14607    Date Filed: 11/12/2015   Page: 1 of 6


                                                         [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-14607
                      ________________________

                  D.C. Docket No. 2:13-cv-14211-JEM



ERIC RODRIGUEZ,

                                                           Petitioner-Appellant,

                                 versus

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                         Respondent-Appellee.

                      ________________________

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

                            (November 12, 2015)



Before MARCUS, JULIE CARNES, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      Eric Rodriguez, a Florida prisoner proceeding pro se, appeals the district

court’s dismissal of his 28 U.S.C. § 2254 petition as untimely. We granted a

certificate of appealability on these two issues: (1) whether Rodriguez’s section

2254 petition was untimely under the Antiterrorism and Effective Death Penalty

Act (“AEDPA”); and (2) whether Rodriguez was entitled to equitable tolling of the

AEDPA limitations period. No reversible error has been shown; we affirm.

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

petition, which begins to run, among other things, on “the date on which the

judgment became final.” 28 U.S.C. § 2244(d)(1). A “properly filed application for

State post-conviction or other collateral review” tolls the AEDPA limitations

period while the state habeas petition is pending. 28 U.S.C. § 2244(d)(2).

      Rodriguez’s conviction became final -- and his one-year limitations period

began to run -- on 27 April 2010. The limitations period was tolled on 28 July

2010 (after 92 days elapsed), when Rodriguez filed his state habeas petition. On 3

August 2010, the state court dismissed Rodriguez’s petition without prejudice.

The limitations period then ran for another 252 days until Rodriguez filed an

amended state habeas petition on 12 April 2011. The limitations period was tolled

again until 7 December 2012, when the mandate issued on the state appellate


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court’s affirmance of the denial of Rodriguez’s amended petition. At that point, 21

days remained in the limitations period. Rodriguez filed his section 2254 petition

on 22 April 2013: 136 days after the mandate issued and 115 days after the 1-year

limitations period expired.

      On appeal, Rodriguez concedes that, absent equitable tolling, his section

2254 petition was untimely. Rodriguez raises no objections to the district court’s

calculation of untolled days or the district court’s determination that his section

2254 petition was filed after the limitations period had already expired. As a

result, Rodriguez has abandoned that argument on appeal. See Timson v.

Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (although we construe liberally pro

se briefs, “issues not briefed on appeal by a pro se litigant are deemed

abandoned.”).

      Rodriguez argues, instead, that he is entitled to equitable tolling of

AEDPA’s one-year limitations period based on an alleged delay in receiving the

state court’s 3 August 2010 order dismissing his initial state habeas petition.

Rodriguez contends that he first learned of the state court’s 3 August dismissal in

March 2011, after he inquired about the status of his petition. As a result,

Rodriguez contends that the limitations period should be equitably tolled between

3 August 2010 and 14 March 2011, when the state trial court mailed him a second

copy of its 3 August dismissal order.


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      “We review de novo the district court’s determination that the petition for

federal habeas corpus relief was time-barred under section 2244(d).” Steed v.

Head, 219 F.3d 1298, 1300 (11th Cir. 2000). We also review de novo the district

court’s determination that equitable tolling is inapplicable. Id. Still, a district

court’s determination of pertinent facts -- including a determination about a party’s

diligence -- is reviewed only for clear error. Drew v. Dep’t of Corr., 297 F.3d

1278, 1283 (11th Cir. 2002).

      “Equitable tolling is an extraordinary remedy which is typically applied

sparingly.” Steed, 219 F.3d at 1300. “[A] petitioner is entitled to equitable tolling

only if he shows (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. Fla., 130 S.Ct. 2549, 2562 (2010) (quotations omitted). The petitioner

bears the burden of establishing that equitable tolling should apply. Drew, 297

F.3d at 1286.

      We have explained that “[a] lengthy delay between the issuance of a

necessary order and an inmate’s receipt of it might provide a basis for equitable

tolling if the petitioner has diligently attempted to ascertain the status of that order

and if the delay prevented the inmate from filing a timely federal habeas corpus

petition.” See id. at 1288 (emphasis added). If a petitioner cannot establish due




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diligence, we do not need to consider whether extraordinary circumstances existed.

Diaz v. Sec’y for Dep’t of Corr., 362 F.3d 698, 702 n.7 (11th Cir. 2004).

       In recommending that Rodriguez’s section 2254 petition be denied as

untimely, the magistrate judge found that Rodriguez failed to demonstrate that he

acted with reasonable diligence. * In particular, the magistrate judge determined

that Rodriguez (1) waited nearly eight months before inquiring about the status of

his state habeas petition, (2) waited a month after actually receiving the state

court’s 3 August dismissal order to file his amended state habeas petition, and (3)

waited over four months after his state habeas proceedings became final to file his

section 2254 petition. The magistrate judge concluded that -- even with the alleged

delay in receiving the state court’s 3 August order -- Rodriguez could have filed a

timely section 2254 petition had he acted with reasonable diligence.

       Rodriguez filed timely some objections to the magistrate judge’s report and

recommendation. But important for this appeal, Rodriguez failed to challenge the

magistrate judge’s factual determination that Rodriguez had not acted diligently.

Thus, we review the district court’s determination on diligence only for plain error.

See LoConte v. Dugger, 847 F.2d 745, 749-50 (11th Cir. 1988) (“Findings of fact

*
 The magistrate judge also concluded that Rodriguez was unentitled to equitable tolling because
(1) Rodriguez failed to demonstrate that the alleged delay in receiving the state court’s 3 August
order prevented him from filing a timely section 2254 petition and because (2) Rodriguez failed
to provide sufficient proof that he never received the first copy of the state court’s 3 August
order. Because Rodriguez has failed to demonstrate that he acted diligently, we need not
consider the magistrate judge’s other independent grounds for denying Rodriguez equitable
tolling. See Diaz, 362 F.3d at 702 n.7.
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made by a United States magistrate under the authority of 28 U.S.C. § 636, and

which are accepted and adopted by the district court without objection by any

party, may be reviewed on direct appeal only for ‘plain error or manifest

injustice.’”).

       To the extent that Rodriguez raises the diligence issue on appeal, he says

only that he “adamantly and consistently pursued his appellate State remedies.”

Rodriguez provides no factual support for his contention that he acted diligently.

He raises no challenge to the district court’s factual findings about the time that

elapsed before Rodriguez inquired about the status of his state court petition and

before he filed his amended state court and federal habeas petitions. In addition,

Rodriguez offers no facts to excuse his delay in pursuing his habeas relief and fails

to counter otherwise the district court’s determination that he was not reasonably

diligent.

       On this record, we cannot say that the district court plainly erred in

determining that Rodriguez was less than diligent. Because Rodriguez failed to

satisfy his burden of demonstrating that he acted diligently, he is entitled to no

equitable tolling of the limitations period; and the district court dismissed correctly

Rodriguez’s section 2254 petition as time-barred.

       AFFIRMED.




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