                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                             Nov. 4, 2009
                              No. 09-12399                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                     D. C. Docket No. 08-61911-CV-JIC

DEAN JAMES DELGUIDICE,

                                                           Petitioner-Appellant,

                                   versus

FLORIDA DEPARTMENT OF CORRECTIONS,
Walter A. McNeil, Secretary,

                                                         Respondent-Appellee.


                        ________________________

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

                             (November 4, 2009)

Before DUBINA, Chief Judge, BARKETT and FAY, Circuit Judges.

PER CURIAM:
       Appellant Dean James Delguidice appeals the district court’s dismissal of

his counseled petition for writ of habeas corpus, under 28 U.S.C. § 2254. The

district court found that Delguidice’s § 2254 petition was not properly filed under

Florida state rules, and thus, was 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). There is no dispute that Delguidice filed his

first, and unsworn, Rule 3.850 motion before the one-year AEDPA statute of

limitations was set to expire, and that he filed an amended, and sworn, Rule 3.850

motion after the one-year period.

       On appeal, Delguidice argues that his unsworn Rule 3.850 motion was

properly filed, because it was accepted by the state court and not dismissed as

improperly filed for lacking verification.1 He contends that, under Florida rules,

the oath requirement need not be fulfilled at the time a motion is filed, and that

other state rules allow for post-conviction motions to be amended at any time. He

also argues that the oath requirement is not a rule that is “firmly established and

regularly followed,” so his Rule 3.850 motion was still “properly filed.” He




       1
         Delguidice also argues that his attorney’s signature on his Rule 3.850 motion satisfied
Florida’s oath requirement. He did not raise this argument below, and, therefore, it is waived.
See Hurley v. Moore, 233 F.3d 1295, 1298 (11th Cir. 2000).

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alternatively asserts equitable tolling and “actual innocence”2 claims to overcome

any time-bar.

       We review de novo a district court’s dismissal of a federal habeas petition,

including the determination that a petition is time-barred under 28 U.S.C. §

2244(d) and is not subject to equitable tolling. See Arthur v. Allen, 452 F.3d 1234,

1243 (11th Cir. 2006) (time-barred); Drew v. Dep’t of Corr., 297 F.3d 1278, 1283

(11th Cir. 2002) (equitable tolling). A district court’s findings of fact, including

whether a party acted diligently, are reviewed under the clear error standard.

Drew, 297 F.3d at 1283. Arguments raised for the first time on appeal are not

properly before this court. Hurley v. Moore, 233 F.3d 1295, 1298 (11th Cir. 2000).

       The AEDPA establishes a one-year statute of limitations for filing § 2254

petitions, which begins to run following the latest of four events, one of which is

the day that the judgment becomes “final.” 28 U.S.C. § 2244(d)(1). The judgment

becomes final on the day which the United States Supreme Court issues a decision


       2
         We decline to address the actual innocence claim, because the district court’s Certificate
of Appealability (“COA”) did not include this issue, see, e.g., Kuenzel v. Allen, 488 F.3d 1341,
1343 (11th Cir. 2007) (declining to address a petitioner’s actual innocence claim because the
COA did not include this issue), and because we have never held that an actual innocence
exception exists to the one-year AEDPA statute of limitations, see, e.g., Sibley v. Culliver, 377
F.3d 1196, 1205 (11th Cir. 2004). Nevertheless, because the evidence that Delguidice relies on
was previously presented at his trial in state court, it is not “newly discovered,” and, therefore,
does not support an actual innocence claim. See Sibley, 377 F.3d at 1205 (holding that, before
addressing whether such an exception exists, an inmate must first raise “new facts” and
demonstrate that, in light of the new evidence, it is more likely than not that no reasonable juror
would have convicted him).

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on the merits of the petitioner’s direct appeal, denies certiorari, or after the

expiration of the 90 days in which the petitioner could file a petition for certiorari.

Bond v. Moore, 309 F.3d 770, 773-74 (11th Cir. 2002).

      Under either trigger date, the limitations period is tolled during the time “a

properly filed application for State post-conviction or other collateral review . . . is

pending.” 28 U.S.C. § 2244(d)(2) (emphasis added). Although the federal statute

does not define “properly filed,” the Supreme Court has construed those words.

See Artuz v. Bennett, 531 U.S. 4, 121 S. Ct. 361, 148 L. Ed. 2d 213 (2000); Pace v.

DiGuglielmo, 544 U.S. 408, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005).

Specifically, “an application is ‘properly filed’ when its delivery and acceptance

are in compliance with the applicable laws and rules governing filings.” Artuz, 531

U.S. at 8, 121 S. Ct. at 364. The Artuz Court explained that the laws and rules

about filings “usually prescribe, for example, the form of the document, the time

limits upon its delivery [and] the court and office in which it must be lodged . . . .”

Id. at 8, 121 S. Ct. at 364. Moreover, an application that was erroneously accepted

without complying with procedural requirements will be pending, but it will not be

“properly filed.” Id. at 9, 121 S. Ct. at 364. “Quite simply, the Supreme Court said

that ‘when a post-conviction petition is untimely under state law, that is the end of

the matter for purposes of § 2244(d)(2),’ because, ‘time limits, no matter their



                                            4
form, are ‘filing’ conditions.’” Sweet v. Sec’y, Dep’t of Corr., 467 F.3d 1311, 1316

(11th Cir. 2006) (citing Pace, 544 U.S. at 414, 417, 125 S. Ct. at 1812, 1814)

(alterations omitted). Under Artuz, we give “due deference” to state procedural

rules governing filings to determine whether an application for state post-

conviction relief is “properly filed” under § 2244(d)(2), see Wade v. Battle, 379

F.3d 1254, 1260 (11th Cir. 2004), but those rules must be “firmly established and

regularly followed,” see Siebert v. Campbell, 334 F.3d 1018, 1025 (11th Cir.

2003).

         In Florida, a state prisoner may file a post-conviction motion challenging his

conviction within two years from entry of a final judgment in a noncapital case.

Fla. R. Crim. P. 3.850(b). The Florida Rules of Criminal Procedure require that a

motion to vacate, set aside, or correct sentence be under oath. See Fla. R. Crim. P.

3.850. The Rules also require that motions for post-conviction relief be “legibly

handwritten or typewritten,” signed by the defendant and contain a notarized oath.

See Fla. R. Crim. P. 3.987. Alternatively, Rule 3.987 allows the defendant to

include an unnotarized oath, which states that “[u]nder penalties of perjury, I

declare that I have read the foregoing motion and that the facts stated in it are

true.” Id. The two-year period allowed for filing a Florida post-conviction motion

does not expand the AEDPA’s one-year statute of limitations period. Tinker v.



                                            5
Moore, 255 F.3d 1331, 1334-35 (11th Cir. 2001). Importantly, a state post-

conviction motion is not “properly filed” under § 2244(d)(2) if it fails to comply

with Florida’s written oath requirement. Hurley, 233 F.3d at 1297.

      In Melson v. Allen, 548 F.3d 993 (11th Cir. 2008), cert. denied, 2009 WL

2160589 (U.S. Oct. 5, 2009) (No. 09-5373), we held that an inmate’s state post-

conviction motion, which was dismissed by the state court for failure to comply

with the rule requiring verification, was not “properly filed” within the meaning of

the tolling provision of the one-year limitations period for federal habeas corpus

petitions, regardless of the fact that the verification requirement was

non-jurisdictional, subject to waiver, and curable by amendment. Melson, 548

F.3d at 997 (“‘[N]o matter their form’ and regardless of whether they are

‘jurisdictional, an affirmative defense, or something in between,’ state rules which

establish filing conditions fall within the meaning of ‘properly filed’ under

§ 2244(d)(2).”) (quoting Allen v. Siebert, 552 U.S. 3, __, 128 S. Ct. 2, 4, 169 L. Ed.

2d 329 (2007)) (alterations omitted). We also held that the inmate’s amended

state post-conviction motion, which corrected the verification deficiencies of the

previously filed motion, but was filed after expiration of the one-year AEDPA

limitations period, did not toll the limitations period, as the limitations period had

already expired. Id. at 998. Moreover, we held that the inmate could not “attempt



                                            6
to resurrect a terminated statute of limitations by subsequently filing documents

that purport to ‘relate back’ to previously submitted documents that were, in

themselves, insufficient to toll the statute.” Id. (quoting Sibley, 377 F.3d at 1204).

       “Equitable tolling can be applied to prevent the application of the AEDPA’s

statutory deadline when ‘extraordinary circumstances’ have worked to prevent an

otherwise diligent petitioner from timely filing his petition.” Drew, 297 F.3d at

1286 (internal quotation marks and alteration omitted). Equitable tolling is an

extraordinary remedy that is typically applied sparingly, and only when a petitioner

establishes that he did not timely file a petition because of “extraordinary

circumstances that are both beyond his control and unavoidable even with

diligence.” Id. (internal quotation marks omitted). In the absence of a showing of

diligence, a petitioner is not entitled to equitable relief. Id. at 1289.

       Although the record demonstrates that the state court accepted Delguidice’s

first post-conviction motion and the state court did not dismiss it as improperly

filed, we conclude that, it was not “properly filed,” because it failed to comply with

Florida’s written oath requirement. Delguidice has not demonstrated that the oath

requirement is a rule that is not “firmly established and regularly followed.” To

the extent that Florida requirements were “non-jurisdictional, subject to waiver,

and curable by amendment,” the oath requirement is a filing condition that falls



                                             7
within the meaning of “properly filed” under § 2244(d)(2). Consequently, while

his amended motion, which corrected the verification deficiencies of his previously

filed motion, was submitted within the two-year limitations period under Florida

rules, the Florida Rules do not expand the AEDPA’s one-year statute of limitations

period, and do not resurrect an expired limitations period.

      Additionally, we conclude that the district court did not clearly err in finding

that Delguidice was not diligent in filing his post-conviction motion within the

one-year AEDPA deadline, as he waited until two days before the expiration of

that deadline to file his first Rule 3.850 motion. There was no evidence that he was

prevented from filing his federal habeas petition on time, and the other reasons

provided by Delguidice do not constitute extraordinary circumstances. As such,

because Delguidice was not diligent in pursuing his post-conviction claims, the

district court properly denied him the extraordinary remedy of equitable tolling.

Accordingly, we affirm the district court’s judgment of dismissal.

      AFFIRMED.




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