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

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No. 02-14498

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

ALFRED LEE JONES, JR.,

 Petitioner-Appellant,

versus

JOHN NAGLE,

 Respondent-Appellee.

__________________________

Appeal from the United States District Court for the

Southern District of Alabama

_________________________

(November 6, 2003)

Before DUBINA, WILSON and KRAVITCH, Circuit Judges.

KRAVITCH, Circuit Judge:

Petitioner-appellant Alfred Lee Jones, an Alabama prisoner, appeals the

dismissal of his habeas corpus petition as time-barred under the Antiterrorism and
1

 Jones proceeded pro se until this court appointed counsel to represent him in this appeal.

2

 A petitioner has forty-two days to appeal the dismissal of a Rule 32 petition. Ala. R. App. P. 4(a).

2

Effective Death Penalty Act of 1996 (“AEDPA”). Pub. L. No. 104-32, 110 Stat.

1214 (1996). The issue on appeal is whether the district court properly tolled the

statute of limitations under the AEDPA.

I. BACKGROUND

In 1997, Jones pleaded guilty in Alabama 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 terms, and the certificate

for final judgment was issued on December 8, 1998. On February 2, 1999, Jones

filed a Rule 32 petition in the Circuit Court of Mobile County, Alabama, attacking

his guilty plea.1

 The circuit court denied 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

untimely.2 Jones then filed a second Rule 32 petition on November 14, 2000,

which was denied on March 6, 2001. Jones did not appeal. Jones filed his habeas

corpus petition pursuant to 28 U.S.C. § 2254 in the district court on June 4, 2001. 
3

 The magistrate judge explained that he calculated the 383 days as follows. The clock ran for 56

days from the time Jones’s conviction was final on December 8, 1998, until the time he filed his first

Rule 32 petition on February 2, 1999. After Jones filed the Rule 32 petition, the clock tolled until

March 22, 2000, when the Alabama Court of Criminal Appeals dismissed Jones’s appeal of the trial

court’s dismissal of his first Rule 32 petition. The clock started again on March 23, 2000, and ran

for 237 days until 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 days until Jones filed this habeas corpus action on June 4,

2001. When the magistrate judge added the time periods in which the clock had run - 56 days, 237

days, and 90 days - the court determined that Jones’s habeas petition was filed in 383 days, which

was 18 days past the AEDPA time limit.

3

The magistrate judge issued a report and recommendation, which found that

Jones’s habeas corpus petition was time-barred under the AEDPA. The AEDPA

requires a state prisoner seeking a federal habeas corpus remedy to file his federal

petition within one year of the “conclusion of direct review or the expiration of the

time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). The one-year time

limit, however, is tolled during the time in which a petitioner could properly file

an application for State post-conviction or other collateral 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 magistrate judge found that 383 days elapsed from the

time Jones’s conviction was final on December 8, 1998, until Jones filed his

habeas corpus petition on June 4, 2001.3

 The district court adopted the magistrate

judge’s recommendation and entered judgment against Jones.

II. DISCUSSION
4

We review de novo the district court’s determination that a petition for

federal habeas corpus relief was time-barred under 28 U.S.C. § 2244(d). Steed v.

Head, 219 F.3d 1298, 1300 (11th Cir. 2000). Jones argues, and the state now

concedes on appeal, that the magistrate judge erred in not tolling the time period

for the forty-two days during which Jones could have appealed the denial of his

second Rule 32 petition.

According to the AEDPA, “[t]he time during which a properly filed

application for State post-conviction or other collateral review with respect to the

pertinent judgment or claim is pending shall not be counted 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 time 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 achieved final resolution through the State’s post-conviction

procedures, by definition it remains ‘pending.’” 536 U.S. at 220. Because Jones

could have filed a notice of appeal from the dismissal of his second Rule 32

petition from March 6, 2001, to April 17, 2001, we agree that the AEDPA should

have been tolled for that time.
4

 By tolling the forty-two days, Jones’s habeas petition would have been filed in 341 days, well

within the AEDPA’s one-year time limit.

5

 Both parties now agree that the AEDPA should have been tolled from August 12, 1999, through

September 23, 1999, because Jones could have filed an appeal for forty-two days 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 magistrate judge tolled the statute during these forty-two days,

Jones’s habeas petition would have been timely.4 The state, however, now claims

for the first time on appeal that the magistrate judge incorrectly tolled Jones’s

claim between September 23, 1999, and March 22, 2000.5

 In response, Jones’s

reply brief reiterates his position that because he did not receive notice of the

August 12, 1999, denial of his Rule 32 petition until February 4, 2000, the

magistrate judge properly tolled that time period.

Equitable tolling is “appropriate when a movant untimely files because of

extraordinary circumstances that are both beyond his control and unavoidable

even with diligence.” Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.

1999). The petitioner bears the burden of establishing that equitable tolling is

justified. Drew v. Dep't of Corrections, 297 F.3d 1278, 1286 (11th Cir. 2000). 

Jones repeatedly has claimed that he did not receive timely notice that his first 
6

In his habeas petition, Jones stated that “on 1st Rule 32 - was not notified by Court until time limit

run (sic) out.” In May 2002, Jones filed an affidavit where he again claimed “[p]rior to February

4, 2000, I had no knowledge the Rule 32 Petition was denied August 12, 1999.” After the magistrate

judge issued a report and recommendation, Jones again stated that he first “received notice on

February 4, 2000.”

6

Rule 32 petition had been denied on August 12, 1999.6

 Prior to its brief in this

court, the state never challenged Jones’s position that he first received notice on

February 4, 2000. Because the state did not dispute Jones’s equitable tolling

argument in the district court, the state has waived its opportunity to address this

argument now. Shukwit v. United States, 973 F.2d 903, 904 (11th Cir. 1992)

(holding that when the government does not raise a procedural bar issue in the

district court, it is waived).

For the foregoing reasons, we conclude that Jones filed his habeas corpus

petition in 341 days, well within the one-year time limitation imposed under the

AEDPA.

REVERSED and REMANDED.