### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT November 6, 2003 THOMAS K. KAHN CLERK [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-14498

________________________ D. C. Docket No. 01-00401-CV-CB-M

ALFRED LEE JONES, JR., Petitioner-App ellant, versus JOHN NAGLE, Respondent-Appellee.

__________________________ Appeal from t

he United States D

istrict Court for t

he Sout hern D istri ct of A labama

_________________________ (November 6,

2003) Before DUBIN

A, WILSON

and KRAVITCH, Circuit Judges. KRAVITCH, Circuit Judge: Petitioner-appell

ant Alfred Lee Jones, an Alabam a prisoner, appea

ls the dismissal of his h

abeas corpus petitio

n as time-barr

ed under the Antiter

rorism and1 Jones proceeded p ro se until this cour

t appointed counse

l to represent him i

n this appeal.

2 A petitioner has forty-two days to appe al the dismissal of a Rule 32 petition. Ala. R. App. P. 4(a). 2 Effective Dea

th Penalty Act

of 1996 (“AED

PA”). Pub. L . No. 104-32, 110 S tat. 1214 (1996). The iss

ue on appeal is wheth

er the district cour

t properly tolle

d the statute of limitation s under the AEDPA. I. BACKGROUND In 1997, Jones pleade

d guilty in Alaba

ma state court

to two counts of distribution of a controlled substance and one count of unlawful possession of a controlled substance . Jones was sentenced to three life te rms, and the c ertificate for final judgment was issued on December 8, 1998. On February 2, 1999, Jones filed a Rule 32 petit

ion in the Circuit Cour

t of Mobile County

, Alabama,

attacking his guilty plea. 1 The circuit court deni ed the petition on August 12, 1999. According to Jones, however, he did not receive notice that this petition had been denied until February 4, 2000. Jones appealed on March 13, 2000, but on March 22, 2000, the Alabama Court of Criminal Appeals dismissed the appeal as untimel y. 2 Jones then filed a se cond Rule 32 petition on N ovember 14, 2000 , which was denied on March 6, 2001. Jones did not appeal. Jones filed his habeas corpus petition p ursuant to 28 U.S.C. § 22 54 in the district court on June 4, 200 1.3 The magistrate judge explained that he calculated the 383 day s as follows. The clock ran for 56 days from the time Jones’s convictionwas final on Dece mber 8, 1998, until th

e time he filed his f

irst Rule 32 petition on February 2, 1999. After Jones filed the Rule 32 petition, the clock tolled un til March 22, 2000, when the Alabama Court of Criminal Appeals dismissed Jones’s appeal of the trial court’s dismissal of his firs t Rule 32 petition. Th

e clock started a

gain on March 23, 2000, and ran for 237 days unti

l November 14, 2000, when Jones filed his second Rule 32 petition. Jones’s second Rule 32 petition tolled the clock until the state court denied it on March 6, 2001, at which time the clock began again. The clock ran for 90 day s until Jones filed this habeas corpus action on June 4, 2001. When the magistra te judge added the time periods in which the clock had run - 56 days, 237 days, and 90 days - the court de termined that Jones’s habeas petition was filed in 383 days, which was 18 days p

ast the AEDPA time li

mit. 3 The magistrate judge issued a report and recomm endation, which found that Jones’s habeas corpus petition was time-barred under the AEDPA. The A EDPA requires a state prisoner seeking a federal habeas corpus remedy to file his federal petition within one y

ear of the “conclusion of direct r eview or the expir

ation of the time fo r seek ing s uch re view. ” 28 U. S.C. § 2244 (d)(1 )(A). T he on e-year time limit, howeve

r, is tolled during th

e time in whic

h a petitioner could pr

operly file an application for St ate post-convicti on or other collatera l review. See 28 U.S.C. § 2244(d)(2); Carey v. Saffold , 536 U.S. 214, 217, 122 S.Ct. 2134, 2136, 153 L.Ed.2d 260 (2002) . The magist rate judge found tha

t 383 days elapsed

from the time Jones’s conviction was fina l on December

8, 1998, until Jones f

iled his habeas corpus petiti

on on June 4, 2001. 3 The district court adopted the magi strate judge’s recom

mendation and ent

ered judgmen

t against Jones. II. DISCUSSION4

We review de no

vo the district court’ s determinatio n that a petition for federal habeas corpus relief was time-barred under 2 8 U.S.C. § 2244(d). Steed v. Head, 219 F.3d 1298, 1300 ( 11th Cir. 2000). Jon es argues, and the s

tate now concedes on appeal,

that the magistr

ate judge erred in not tolling the tim e period for the forty-

two days during w

hich Jones could have a

ppealed the denial of

his second Rule 32 petition

. According to the AEDPA, “[t]he tim e during which a properly filed application for Sta

te post-conviction or other collateral r eview with respe

ct to the pertinent judgm

ent or claim is

pending shall not be coun ted toward any

period of limitation under

this subsection.” 28 U .S.C. § 2244(d)( 2). In Carey v. Saffold

, the Supreme Court interpreted the word “pending” to “cover the tim e between a lower state court’s decision and the filing of a notice of appeal to a higher state court.” 536 U.S. 214, 217,

122 S.Ct. 2134, 2136 , 153 L.Ed.2d 260 (2002). “[U

]ntil the application has achi

eved final resolutio

n through the State’ s post-conviction procedures, by definition it remains ‘pending.’” 536 U.S. a t 220. Because Jones could have filed a not

ice of appeal from

the dismissal of

his second Rule 32 petition from Ma

rch 6, 2001, to Apr

il 17, 2001, we agr

ee that the AED

PA should have been tolled for that time.4 By

tolling the forty-two d

ays, Jones’s h

abeas petition wo

uld have been file

d in 341 days,

well within the AEDPA’s o

ne-year t ime limit.

5 Both parties now agree

that the AEDPA should have been tolled fro m August 12, 1999, thro ugh September

23, 1999, because Jones could have filed an appeal for forty-two d

ays after his Rule 32 petition had been denied. Therefore, the critical issue becomes whether

the time between September 23, 1999, and March 22, 2000, is tolled. 5 Had the magist

rate judge tolled t

he statute during thes e forty-two da ys, Jones’ s habea s petit ion wou ld have been ti mely. 4 The st ate, h oweve r, now claims for the firs t time on app eal that th e magistrate ju dge incorr ectly tolled Jones’s claim betwee

n September 23,

1999, and March 22,

2000. 5 In respons e, Jones’s reply brief r

eiterates his positi

on that because he did

not receive notice of the August 12, 1999, denia

l of his Rule 32 petitio

n until February

4, 2000, the magistrate j udge properly tol led that time pe

riod. Equitable tolling is “

appropriate when a

movant untim

ely files beca

use of extraordinary

circumstance s that are both bey ond his control and unavoi dable even with diligence.” Sandvik v. United States , 177 F.3d 1269, 1271 (11th Cir. 1999). The petition

er bears the burde

n of establishing that e

quitable tolling is justified. Drew v. Dep't

of Corrections , 297 F.3d 1278, 128 6 (11th Cir. 2000). Jones repeatedly

has claimed tha

t he did not receive t

imely notic e that his first6 Inhis habeas petition, Jones stated that “on 1st Rule 32 - was not notified by Court until time limit run(sic) out.” In May 2

002, Jones filed an a

ffidavit where he again claimed “[p]rior to February 4, 2000, Ihad no knowledge the Rule 32 Petition was denied August 12, 1999.”

After the magis

trate judge issued a report and recommenda ti on, Jones again stated that he first “received notice on February 4, 2000.” 6 Rule 32 petition had bee

n denied on August 12, 1 999. 6 Prior to its brief in this court, the state ne

ver challenged Jones ’s position that he f irst received notice on February 4, 2 000. Because the st ate did not dispute Jones ’s equitable tollin g argument in the district court, the state has waived it

s opportunity to addr

ess this argument now. Shukwit v. United States , 973 F.2d 903, 904 (1 1th Cir. 1992) (holding that when the

government does not raise a procedur al bar issue in the district court, it is waived). For the foregoing re

asons, we conclude

that Jones filed his ha

beas corpus petition in 341 days,

well within the one -year tim e limitation im

posed under the AEDPA. REVERSED and REMANDED

.