FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

April 28, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-12463

Non-Argument Calendar

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D. C. Docket No. 04-01010-CV-J-32-MMH

JUAN SMALLWOOD, 

Petitioner-Appellant, 

versus 

SECRETARY, DEPARTMENT OF CORRECTIONS, 

ATTORNEY GENERAL, STATE OF FLORIDA, 

Respondents-Appellees. 

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(April 28, 2006)

Before DUBINA, CARNES and HULL, Circuit Judges.

PER CURIAM:
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Juan Smallwood, a Florida state prisoner serving a life sentence for felony

murder, appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254

petition as time-barred. Smallwood filed this petition after his previous § 2254

petition was dismissed without prejudice because he failed to pay the appropriate

filing fee, submit an affidavit of indigency, or file an in forma pauperis application,

as required by the Rules of Civil Procedure. The issue for which Smallwood

received a certificate of appealability is:

[w]hether the district court erred by dismissing Smallwood’s 28

U.S.C. § 2254 petition as time-barred when the district court sua

sponte dismissed, without warning, his previous § 2254 petition for

failure to pay the filing fee or move to proceed in forma pauperis? 

See e.g., Wilson v. Sargent, 313 F.3d 1315, 1321 (11th Cir. 2002). 

When reviewing a district court’s denial of a habeas petition, we review

questions of law de novo. Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir. 2000). 

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

habeas corpus is time-barred. Bond v. Moore, 309 F.3d 770, 772 (11th Cir. 2002). 

A one year period of limitation applies to “an application for a writ of

habeas corpus by a person in custody pursuant to the judgment of a State court.” 

28 U.S.C. § 2244(d)(1). The limitation period begins on the date on which a

judgment of conviction and sentence become final. 28 U.S.C. § 2244(d)(1)(A). 

Section 2244(d)(2) states that “[t]he time during which a properly filed application
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for State post-conviction or other collateral review with respect to the pertinent

judgement or claim is pending shall not be counted toward any period of limitation

under this subsection.” The Supreme Court has held that federal habeas petitions

do not constitute “other collateral review” within the meaning of the statute. 

Duncan v. Walker, 533 U.S. 167, 181, 121 S. Ct. 2120, 2129 (2001). 

Consequently, § 2244(d)(2) “does not toll the limitation period during the

pendency of [Smallwood’s first] federal habeas petition.” Id. The district court

thus did not err in dismissing Smallwood’s petition as time-barred unless

Smallwood is entitled to equitable tolling.

We have held that “the AEDPA’s statute of limitations may be equitably

tolled when a movant untimely files because of extraordinary circumstances that

are both beyond his control and unavoidable even with diligence.” Knight v.

Schofield, 292 F.3d 709, 711 (11th Cir. 2002) (internal quotation marks omitted). 

“Equitable tolling is an extraordinary remedy which is typically applied sparingly.” 

Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir. 2005). “Equitable tolling is

limited to rare and exceptional circumstances, such as when the State’s conduct

prevents the petitioner from timely filing.” Id. 

Smallwood contends that the statute of limitations should be equitably tolled

in his case. He argues that he moved to proceed in forma pauperis before the
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district court dismissed his original petition, and promptly refiled his petition after

receiving notice of dismissal. He relies on Wilson v. Sargent, 313 F.3d 1315 (11th

Cir. 2002), to assert that the district court had an obligation to warn him that his

original petition was on the verge of dismissal if the filing fee was not paid. 

Smallwood contends that, based on the lack of notice, the district court abused its

discretion when it dismissed his second petition as time-barred, as he did

everything required of him. 

After reviewing the record and both parties’ briefs, we conclude that it is

unnecessary to decide whether the district court erred in sua sponte dismissing

Smallwood’s first federal habeas petition without notice because Smallwood is not

entitled to equitable tolling. Smallwood was not the victim of “extraordinary

circumstances that are both beyond his control and unavoidable even with

diligence,” and, thus, does not qualify for equitable relief. Knight, 292 F.3d at

711. Smallwood does not argue that he never received notice that the district court

dismissed his initial § 2254 petition. Instead, Smallwood stated that he received

notice and chose to file a new petition. Smallwood did not appeal the district

court’s dismissal of his initial § 2254 petition. Since he did not exhaust the options

available to him when his first federal habeas petition was dismissed, he did not

exercise the level of diligence required to show the “rare and exceptional
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circumstances” that qualify a petitioner for equitable tolling. See Lawrence, 421

F.3d at 1226.

The judgment of the district court is

AFFIRMED.