FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 5, 2006

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-11206

Non-Argument Calendar

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D.C. Docket No. 03-00561-CV-IPJ-JEO

MICHAEL LEE LANG,

 

Petitioner-Appellant, 

versus

STATE OF ALABAMA,

STEPHEN BULLARD,

Warden,

ATTORNEY GENERAL OF ALABAMA,

 Respondents-Appellees. 

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Appeal from the United States District Court

for the Northern District of Alabama 

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(May 5, 2006)

Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges.
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PER CURIAM:

 

Alabama prisoner Michael Lee Lang appeals pro se the district court’s

denial of his federal habeas corpus petition, brought under 28 U.S.C. § 2254. This

appeal is governed by the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). A judge of this Court granted a certificate of appealability (COA) on

whether the district court erred by dismissing Best’s § 2254 petition as timebarred. No reversible error has been shown; we affirm.

No one disputes that Lang’s conviction became final on 11 April 2000,

when the Alabama Court of Criminal Appeals entered a certificate of judgment,

and that he had until 12 April 2001 to file his § 2254 petition. Lang did not file

his first state post-conviction Ala.R.Crim.P. 32 petition until 22 March 2002,

which was timely under the state’s two-year limitation period, but was after the

AEDPA’s limitation period had expired. Thus, the time during which his Rule 32

petition was pending did not toll the AEDPA limitation period. See Tinker v.

Moore, 255 F.3d 1331, 1333 (11th Cir. 2001). The state appellate court affirmed

the denial of his Rule 32 petition and entered a certificate of judgment on 24

January 2003. Lang filed his § 2254 petition on 8 March 2003.
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This case is about whether Lang is entitled to equitable tolling of the

AEDPA’s one-year limitation period, 28 U.S.C. § 2244(d)(1), due to his medical

conditions. Before and during 2000, Lang suffered from painful hemorrhoids that

required medication. From June to December 2000, Lang received orders not to

sit or to stand for prolonged periods. On 23 February 2001, Lang was diagnosed

with cancer of the anus. In early March 2001, Lang was prescribed a ten-week

course of intravenous chemotherapy and began to suffer from nausea, dizziness,

and fatigue. Also, beginning in December 2000, Lang intermittently began

experiencing significant chest pain. On 24 July 2001, Lang underwent triple

coronary bypass surgery and was hospitalized for six days. In January 2002,

medical records showed that Lang was healthy enough to walk and jog.

Lang argues that his medical problems were beyond his control and

unavoidable such that they constitute extraordinary circumstances justifying the

equitable tolling of the AEDPA’s limitation period. He contends that rectal pain

and the do-not-sit orders prevented him from attending the law library, which

requires inmates to sit. He also maintains that his chest pain and the effects of the

chemotherapy prevented him from preparing his § 2254 petition. Lang asserts that

the timely filing of his Alabama Rule 32 petition, shortly after he was healthy
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enough to walk and to jog, shows that he was diligent in pursuing his § 2254

petition.

We review de novo a district court’s dismissal of a petition for writ of

habeas corpus and its legal decision on equitable tolling. Drew v. Dep’t of Corr.,

297 F.3d 1278, 1283 (11th Cir. 2002). But we review for clear error the district

court’s determinations of relevant facts. Id. In rare cases, the AEDPA’s

limitations period can be tolled equitably “when ‘extraordinary circumstances’

have worked to prevent an otherwise diligent petitioner from timely filing his

petition.” Helton v. Sec’y for Dep’t of Corr., 259 F.3d 1310, 1312 (11th Cir.

2001). We have stressed that “the petitioner must show both extraordinary

circumstances and due diligence in order to be entitled to equitable tolling.” Diaz

v. Sec’y for Dep’t of Corr., 362 F.3d 698, 701 (11th Cir. 2004).

We do not doubt that Lang suffered from significant health problems during

the AEDPA limitation period. Lang, though, has not shown (1) that his medical

conditions were sufficiently debilitating to constitute “extraordinary

circumstances” justifying equitable tolling and (2) that he exercised enough

diligence in pursuing his § 2254 petition during the limitation period. Lang

suffered from rectal pain before the limitation period began to run and from chest

pain beginning in December 2000. But no evidence shows that Lang experienced
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incapacity until mid-June 2000, when he received the first order not to sit for

longer than 30 minutes at a time. And Lang offers no explanation why he could

not sometimes sit in the law library for less than 30 minutes to prepare his § 2254

petition. Lang, also, has not shown that, before his July 2001 hospitalization, his

chest pain was such that it prevented him from taking some action to pursue the

timely filing of his § 2254 petition. Further, even were we to toll the limitation

period during the ten weeks of Lang’s chemotherapy and during his six-day

hospitalization for heart surgery, Lang’s § 2254 petition still would have been

untimely.

The district court committed no error in determining that Lang was not

entitled to the equitable tolling of the AEDPA limitation period. Thus, the district

court correctly dismissed Lang’s § 2254 petition as time-barred.

AFFIRMED.