                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                    FILED
                                                         U.S. COURT OF APPEALS
                             No. 10-12365                  ELEVENTH CIRCUIT
                         Non-Argument Calendar                 JUNE 23, 2011
                       ________________________                 JOHN LEY
                                                                 CLERK
                   D.C. Docket No. 1:09-cv-20337-DLG

ORIEL BERNADEU,

                                           lllllllllllllllllllllPetitioner-Appellant,

                                 versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
Walter A. McNeil,

                                          lllllllllllllllllllllRespondent-Appellee.

                      ________________________

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

                              (June 23, 2011)

Before MARCUS, WILSON and BLACK, Circuit Judges.

PER CURIAM:
      Oriel Bernadeu appeals the dismissal of his 28 U.S.C. § 2254 petition for

habeas corpus as time-barred. On appeal, Bernadeu argues that: (1) the district court

erred in not tolling the time between the trial court’s denial of his motion for

rehearing of his Fla.R.Crim.P. 3.850 post-conviction motion and the date on which

he filed a petition for belated appeal in state court; and (2) alternatively, the court

erred in not granting him the benefit of equitable tolling during that time because he

did not receive notice of the order denying his motion for rehearing until more than

seven months after it was issued. After careful review, we affirm.

      We review de novo a district court’s determination that a § 2254 petition was

time-barred. Moore v. Crosby, 321 F.3d 1377, 1379 (11th Cir. 2003). We review “a

district court’s legal decision on equitable tolling de novo” and its factual findings for

clear error. Drew v. Dep’t of Corr., 297 F.3d 1278, 1283 (11th Cir. 2002). “[A]

determination regarding a party’s diligence is a finding of fact.” Id.

      A petition for a writ of habeas corpus filed by a state prisoner is subject to a

one-year statute of limitations. 28 U.S.C. § 2244(d)(1). The statute of limitations is

statutorily tolled while a properly-filed state application for post-conviction or other

collateral review is pending. Id. § 2244(d)(2).

      In Florida, one form of collateral relief a prisoner may seek is a Rule 3.850

motion to vacate, set aside, or correct a sentence. Fla.R.Crim.P. 3.850. If this motion

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is denied and the petitioner does not file a notice of appeal within 30 days, the

petitioner may later file a petition for belated appeal. Id. Rule 3.850(g); Fla.R.App.P.

9.141(c)(4)(A). Nonetheless, if a petition for belated appeal is filed after the § 2244

statute of limitations has expired, “it does not reset or restart the statute of

limitations.” Moore, 321 F.3d at 1381.

      In addition to statutory tolling, equitable tolling may be applied in

extraordinary cases where a petitioner acted diligently but nonetheless filed his

petition for habeas corpus after the expiration of the statute of limitations due to

“circumstances beyond his control.” Drew, 297 F.3d at 1286-87.

      In this case, the district court correctly dismissed Bernadeu’s petition as

time-barred because the statute of limitations expired on January 3, 2008, and

Bernadeu did not file his petition until February 1, 2009. Despite Bernadeu’s

arguments to the contrary, it is irrelevant that the Florida state court deemed his

March 25, 2008 belated appeal timely because, under Moore, a petition for belated

appeal “does not reset or restart the statute of limitations” after it has expired. 321

F.3d at 1381. Contrary to Bernadeu’s suggestion, Moore is still good law in this

Court; the Supreme Court in Carey v. Saffold, 536 U.S. 214 (2002), explicitly limited

its holding to California, and the Court in Evans v. Chavis, 546 U.S. 189 (2006),

merely applied Carey to a new set of facts in a different California case. See Carey,

536 U.S. at 224-25; Evans, 546 U.S. at 192. Furthermore, Bernadeu’s contention that

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the Supreme Court applied these cases to Florida’s post-conviction scheme in

Lawrence v. Florida, 549 U.S. 327 (2007), is without merit because there, the Court

merely held that a post-conviction application is not pending following the final

judgment in the state court even if the petitioner filed a petition for certiorari in the

Supreme Court. Id. at 329. Therefore, Moore remains binding on this Court.

      Because Bernadeu’s federal petition for habeas corpus was not filed until after

the expiration of the § 2244 statute of limitations, it was time-barred unless equitable

tolling is applicable. However, Bernadeu took no action to learn the status of his state

court case for more than seven months, during which time the statute of limitations

expired. The district court thus did not err in finding that Bernadeu did not act

diligently during this delay. See Drew, 297 F.3d at 1286-87. Accordingly, we affirm.

      AFFIRMED.




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