[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILED

U .S . COURT OF APPEALS

E L E V E N T H CIRCUIT

March 21, 2007

N o . 06-13393 T H O M A S K. KAHN

N o n - A r g u m e n t Calendar CLERK

D . C. Docket No. 04-00071-CV-OC-1OGRJ

E R IC LAMAR WILLIAMS,

Petitioner-Appellant,

versus

STATE OF FLORIDA,

FL ATTORNEY GENERAL,

Respondents-Appellees.

A p p e al from the United States District Court

fo r the Middle District of Florida

(M a rch 21, 2007)

B efo re BIRCH, MARCUS and WILSON, Circuit Judges.

P E R CURIAM:

E ric Lamar Williams, a Florida state prisoner proceeding pro se, appeals the d is tr ic t court's dismissal of his habeas corpus petition under 28U.S.C. § 2254, as b arred by the one-year statute of limitations of the Antiterrorism and Effective D eath Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 11 Stat. 1214 ( 1 9 9 6 ) . We granted a certificate of appealibility as to the following issue: Whether th e district court erred in finding that Williams was not entitled to equitable tolling o f the AEDPA's statute of limitations until the date he received actual notice of the s ta te appellate court's mandate affirming his resentencing. For the reasons stated h erein , we find no reversible error and affirm.

BA CK GRO UN D W illiam s was convicted in a Florida state court for murder in the first d eg ree, burglary of a structure while armed, and aggravated assault with a deadly w eap o n . He was sentenced to a term of life imprisonment on the murder count and tw o terms of ten years' imprisonment on the other counts to be served concurrent w ith each other and consecutive to the life sentence. Williams filed, through co u n sel, a motion to dismiss his direct appeal in order to pursue post-conviction rem ed ies with the trial court. A Florida appellate court granted the motion and d ism issed Williams's direct appeal on September 8, 2000. On May 17, 2001, W illia m s filed a post-conviction motion, alleging ineffective assistance of trial co u n sel. This motion tolled the statute of limitations until the denial of the motion w as affirmed on July 26, 2002.

O n October 15, 2002, Williams filed, pro se, a motion to correct illegal sen ten ce pursuant to Fla. R. Crim. P. 3.800(a), which again tolled the statute of lim ita tio n s . The motion was granted, his sentence vacated, and he was r es en te n c ed . Williams appealed the resentencing, and the appellate court affirmed th e sentence on October 28, 2003.1 The mandate was issued on November 14, 2 0 0 3 . At this point, Williams had thirty-three days remaining, or until December 1 7 , 2003, to file his § 2254 petition.

On February 16, 2004, ninety-four days after the mandate issued, Williams f ile d a Petition for Writ of Habeas Corpus pursuant to 28U.S.C. § 2254 in federal co u rt. The State of Florida filed a response arguing that the petition should be d is m is se d as time-barred. In his reply to the State's response, Williams argued that h is petition should not be barred by the one-year statute of limitations. He argued th at because he filed the habeas petition only four days after receiving notice of the m an d ate affirming his resentencing, he was diligent in filing his petition. He req u ested to be allowed to proceed with his § 2254 habeas petition. T h e district court construed Williams's request as a claim for equitable to llin g . The district court determined that Williams's underlying criminal case b e c am e final on September 8, 2000, and that, after applying statutory tolling based o n Williams's post-conviction motions, Williams filed his petition over two-and-ah alf months after the deadline for filing his petition had elapsed. Therefore, the d istrict court found that the petition was time-barred absent equitable tolling. The d istrict court found that equitable tolling was not applicable because the u n tim elin ess was not beyond Williams's control and Williams did not exercise due d ilig en ce in attempting to meet the deadline. In particular, the district court found th a t although Williams was aware of the limited time remaining for filing a habeas p etitio n , he took no steps to determine the status of his pending appeal after his co u n sel had filed an Anders brief.

Williams moved for a Certificate of Appealability ("COA"), arguing that the d istrict court should have considered his constitutional claims 2 and that his § 2254 p etitio n was not time-barred because the one-year statute of limitations did not b eg in to run until after his resentencing was affirmed on November 14, 2003. The d istrict court denied the COA. We granted a COA on the issue of whether the d istrict court erred in finding that Williams was not entitled to equitable tolling. S T A N D A R D OF REVIEW W e review de novo the district court's decision to dismiss a petition for a w rit of habeas corpus. Drew v. Dep't of Corr., 297 F.3d 1278, 1283 (11th Cir. 2 0 0 2 ). We also review the district court's decision to deny equitable tolling de n o v o . Id. However, we review a district court's determination of the relevant facts, including those related to a petitioner's diligence, for clear error. Id.

DISCUSSION T h e AEDPA imposes a one-year statute of limitations for filing a § 2254 h ab eas petition. 28U.S.C. § 2244(d)(1). The statute of limitations begins to run fo llo w in g the latest of four possible events, including "the date on which the ju d g m e n t became final. . . ." Id. When a prisoner properly files a state postc o n v ic tio n motion, the time during which the motion is pending is not counted to w ard the statute of limitations. 28U.S.C. § 2244(d)(2). Additionally, the statute o f limitations can be equitably tolled where a petitioner "act[s] with diligence, and th e untimeliness of the filing [is] the result of circumstances beyond his control." Drew, 297 F.3d at 1286-87. However, this remedy is extraordinary and is applied sp arin g ly. Id. at 1286. The petitioner bears the burden of showing that equitable to llin g is warranted. Id.

O n appeal, Williams argues that the statute of limitations did not begin to ru n until the mandate affirming his resentencing was issued on November 14, 2 0 0 3 .3 He contends that the murder conviction was not final until the resentencing w as affirmed. However, Williams's argument that a new statute of limitations b e g a n to run when his resentencing was affirmed is outside the scope of our review as defined in the COA. See Murray v. United States, 145 F.3d 1249, 1251 (11th C ir. 1998) (holding that appellate review is limited to the issues specified in the C O A ). Even if this argument was within the scope of our review, Williams's arg u m en t lacks merit. When a prisoner is resentenced and his § 2254 petition ch allen g es the resentencing, the statute of limitations begins to run from the date th at the resentencing becomes final. Rainey v. Sec'y for the Dep't of Corr., 443 F .3 d 1323, 1327-28 (11th Cir. 2006). However, when, as in Williams's case, the h ab eas petition does not challenge the resentencing and only challenges his o rig in al conviction, the statute of limitations begins to run from the date that the o rig in al judgment of conviction became final. Id. at 1328.

On appeal, Williams does not state any reason why he was entitled to eq u itab le tolling other than that the statute of limitations should not have begun to r u n until after his resentencing was affirmed on November 14, 2003. Williams has n o t argued that he was entitled to equitable tolling based on his failure to receive n o tic e of the mandate affirming his resentencing. Therefore, Williams has ap p aren tly abandoned the issue of equitable tolling. See Irwin v. Hawk, 40 F.3d 3 4 7 , 347 n.1 (11th Cir. 1994) (holding that a pro se litigant abandoned an issue by n o t challenging it on appeal). However, even if Williams had not abandoned the issu e, we find that the district court did not err in finding that Williams was not en titled to equitable tolling.

In Knight v. Schofield, 292 F.3d 709 (11th Cir. 2002), we ruled that a p e titio n e r was entitled to equitable tolling because he was assured by a state court th a t it would contact him as soon as a decision was made concerning the final d isp o sitio n of his appeal, and the court inadvertently sent notice of the decision to th e wrong person. We found that the petitioner demonstrated diligence in in q u irin g about the status of his case when the court failed to contact him, and the co u rt's failure to notify Knight was certainly beyond his control. Id. at 711.

However, we stated that a prisoner is not necessarily entitled to "equitable tolling u n til he receives notice." Id. In Drew, we ruled that a petitioner was not entitled to eq u itab le tolling when he claimed to have contacted the state court by mail, but p r o v id e d no copies of the letters and did not make any attempt to contact the court in another manner, such as by calling or seeking help from a person with the ability to go to the court personally. 297 F.3d at 1289.

Unlike the petitioner in Knight, Williams did not receive a personal assu ran ce that he would be contacted at the conclusion of his case. See Knight, 2 9 2 F.3d at 711. However, Williams claims that he did not know until February 1 2 , 2004 that the Florida Court of Appeals had affirmed his resentencing on N o v em b er 14, 2003; therefore, he argues the he was diligent because he filed his h ab eas petition only four days later. While Williams's filing his habeas petition fo u r days after learning of the state court of appeals' mandate affirming his resen ten cin g is evidence of some degree of diligence, we do not find that the d istrict court clearly erred in finding that Williams failed to act diligently. As the d istrict court noted, Williams did not provide any evidence that he attempted to learn the status of his appeal even though he conceded that he knew that the statute o f limitations for filing a federal habeas petition had almost run. Furthermore, the r ec o r d does not support a conclusion that the untimeliness of his petition was b eyo n d his control. See Drew, 297 F.3d at 1286. Accordingly, we find that W illiam s has failed to meet his burden. He was not entitled to equitable tolling.

Therefore, we affirm the district court's order dismissing Williams's habeas p etitio n as time-barred.

AFFIRMED.

1 His appointed counsel filed Williams's appeal of his resentencing by filing an Anders brief. See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).

2 In his petition, Williams claims that the ineffective assistance of trial and appellate counsel violated his Sixth Amendment right to legal representation.

3 We note that in Williams's brief he requests that the Court consider the issues regarding the alleged constitutional errors in his trial, for which he previously requested a COA, but was denied. We construe this request as a motion to reconsider and expand our granting the COA, and deny the motion.