                                                                                     [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                                FILED
                             FOR THE ELEVENTH CIRCUIT
                                                       U.S. COURT OF APPEALS
                              ________________________   ELEVENTH CIRCUIT
                                                                             06/15/99
                                      No. 97-5891                         THOMAS K. KAHN
                               ________________________                       CLERK


                         D. C. Docket Nos. 91-172-CR-FAM and
                                           97-1256-CV-FAM

EDWARD STEVE SANDVIK,

                                                                          Petitioner-Appellant,

                                              versus

UNITED STATES OF AMERICA,

                                                                         Respondent-Appellee.
                               ________________________

                       Appeal from the United States District Court
                           for the Southern District of Florida
                             _________________________
                                     (June 15, 1999)



Before COX and HULL, Circuit Judges, and COHILL*, Senior District Judge.

PER CURIAM:



       *
              Honorable Maurice B. Cohill, Jr., Senior U. S. District Judge for the Western District
of Pennsylvania, sitting by designation.
       This appeal presents the issue whether the period of limitations in 28 U.S.C. §

2255 may be equitably tolled. We hold that it may, but that mere attorney negligence

like that here is not a basis for equitable tolling.

                                         1. Background

          In 1991, Edward Sandvik was convicted, on a plea of guilty, of conspiracy to

possess cocaine with intent to distribute. After skipping bail for his first scheduled

sentencing hearing, Sandvik was ultimately sentenced in 1992 to 188 months’

imprisonment. His sentence was affirmed on appeal in August 1993. Nearly four

years later, represented by counsel, Sandvik filed a motion to vacate, set aside, or

correct his sentence under 28 U.S.C. § 2255 on the ground that he was denied

effective assistance of counsel at sentencing. Sandvik’s counsel sent the motion by

ordinary mail from her office in Atlanta, Georgia. We can infer from the certificate

of service attached to the motion that it left her office on April 18, 1997. The court

clerk in Miami file-stamped the motion on April 25, 1997.

           The Government moved to dismiss the petition on the ground that it was

untimely under § 2255’s period of limitations.1 A magistrate judge concluded, as this

circuit later did, that § 2255’s period of limitations should be construed to provide



       1
                “A 1-year period of limitation shall apply to a motion under this section.” 28 U.S.C.
§ 2255.

                                                  2
those convicted before April 24, 1996 (the effective date of the amendment

introducing the period of limitations) a full year after that date to file motions under

§ 2255. See Goodman v. United States, 151 F.3d 1335, 1337 (11th Cir. 1998). The

district court agreed and dismissed the motion.

       Sandvik contends in this appeal that § 2255’s statute of limitations may be

equitably tolled. He argues, moreover, that equitable tolling is justified in his case

because the only reason the motion was late was his lawyer’s decision, only five days

before the statute ran out, to send the motion from Atlanta to Miami by ordinary mail.

We review the district court’s dismissal of Sandvik’s motion de novo because this

issue is solely one of law. See United States v. Hooshmand, 931 F.2d 725, 737 (11th

Cir. 1991).2

                                         2. Discussion

       To our knowledge, no court of appeals has held whether § 2255 permits

equitable tolling on grounds apart from those specified in the statute.3 This field is not

completely unploughed, however: A consensus is forming that the similar period of



       2
              Sandvik raises other arguments, as well, but we reject them without further
discussion. See 11th Cir. R. 36-1.
       3
               The Third Circuit has decided the question, but in dicta. See Miller v. New Jersey
State Dep’t of Corrections, 145 F.3d 616, 619 n.1 (3d Cir. 1998). The Eighth Circuit got close, but
held simply that even if equitable tolling were available, it would not be appropriate in that case.
See Paige v. United States, 171 F.3d 559, 561 (8th Cir. 1999).

                                                 3
limitations found in 28 U.S.C. § 2244, which governs 28 U.S.C. § 2254 petitions, does

permit equitable tolling. See Calderon v. United States Dist. Ct., 163 F.3d 530, 541

(9th Cir. 1998) (en banc); Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998), cert.

denied, 119 S. Ct. 1474 (1999); Miller v. New Jersey State Dep’t of Corrections, 145

F.3d 616, 618 (3d Cir. 1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir.), cert.

denied, 119 S. Ct. 210 (1998). These opinions all properly examine the language and

intent of the statute itself to determine whether equitable tolling is available, as the

Supreme Court has instructed us to do. See United States v. Beggerly, 118 S. Ct.

1862, 1868 (1998). Their reasons, moreover, are sound.

      There is no obvious cause, and the parties offer none, why this interpretation

of § 2244’s statute of limitations should not be equally valid for § 2255’s. A

presumption that a statute of limitations may be equitably tolled applies with equal

force to both statutes. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-

96, 111 S. Ct. 453, 457 (1990). And like § 2244(d), there is every indication that §

2255’s deadline is a garden-variety statute of limitations, and not a jurisdictional bar

that would escape equitable tolling. First, like § 2244’s, § 2255’s time limit is called

a “period of limitations,” and thus does not imply a jurisdictional boundary. Cf.

Davis, 158 F.3d at 811; Calderon v. United States Dist. Ct., 128 F.3d 1283, 1288 (9th




                                           4
Cir. 1997). Section 2255’s limit shares a legislative history with § 2244,4 moreover,

that makes clear that both statutes were intended to be ordinary statutes of limitation

and not jurisdictional bars. Cf. id. Furthermore, § 2255’s period of limitations, like

§ 2244’s, is divorced from the portion of the statute granting the district court

authority to conduct post-conviction review. See 28 U.S.C. § 2255 (authorizing the

district court to hear such motions in its first paragraph, while imposing the time limit

in its sixth paragraph); cf. Miller, 145 F.3d at 618.

       We therefore conclude that in the proper case § 2255’s period of limitations

may be equitably tolled. This is not, however, a proper case. Equitable tolling is

appropriate when a movant untimely files because of extraordinary circumstances that

are both beyond his control and unavoidable even with diligence. See, e.g., Irwin, 498

U.S. at 96, 111 S. Ct. at 458 (“[Federal courts] have generally been much less

forgiving in receiving late filings where the claimant failed to exercise due diligence

in preserving his legal rights.”); Calderon, 163 F.3d at 541 (“[T]he time bar . . . can

be tolled ‘if “extraordinary circumstances” beyond a prisoner’s control make it

impossible to file a petition on time.’”) (quoting Calderon, 128 F.3d at 1288-89);


       4
               Both statutes of limitation were added by the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. 104-132, §§ 101, 105, 110 Stat. 1214, 1217, 1220 (1996). The House
Conference Report relating to the Act discusses the statutes of limitations together as a “limitation
on an application for a habeas writ.” H. Conf. Rep. No. 104-518, at 111 (1996), reprinted in 1996
U.S.C.C.A.N. 924, 944.

                                                 5
Miller, 145 F.3d at 619 (“Mere excusable neglect is not sufficient [to toll the bar].”);

Marr, 141 F.3d at 978 (not knowing about the period of limitation until too late is not

a ground for equitable tolling). Sandvik’s motion was late because his lawyer sent it

by ordinary mail from Atlanta less than a week before it was due in Miami. While the

inefficiencies of the United States Postal Service may be a circumstance beyond

Sandvik’s control, the problem was one that Sandvik’s counsel could have avoided

by mailing the motion earlier or by using a private delivery service or even a private

courier. There is not, therefore, ground for equitable tolling here.

                                    3. Conclusion

      For the foregoing reasons, we affirm the dismissal of Sandvik’s § 2255 motion.

      AFFIRMED.




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