FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 25, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-15670

Non-Argument Calendar

________________________

D. C. Docket No. 03-01562-CV-T-27-MAP

MARK ALLEN TAYLOR, 

Petitioner-Appellant, 

versus 

SECRETARY, DEPARTMENT OF CORRECTIONS, 

Respondent-Appellee. 

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(July 25, 2007)

Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Mark Allen Taylor, a Florida prisoner proceeding pro se, appeals the
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dismissal of his 28 U.S.C. § 2254 federal habeas corpus petition as untimely. 

Taylor was convicted of robbery with a deadly weapon in state court in

November 1998. The conviction and sentence were upheld in direct appeals before

the state courts. Following exhaustion of all direct appeals, the applicable

limitations period for federal habeas relief ran from April 17, 2000 until April 17,

2001. On April 18, 2001, one day after the limitations period expired, Taylor filed

a pro se motion for state habeas relief. The state motion, and all appeals arising

from that motion in state court, were subsequently denied. On August 27, 2003

Taylor filed his §2254 petition for federal habeas relief. 

Before the district court, the state initially conceded that the §2254 petition

was tolled by the state proceedings and was therefore timely, but argued that it was

procedurally defaulted and without merit. The district court, sua sponte, concluded

that the state erroneously conceded that the suit was not time-barred since the

limitation period lapsed before state habeas proceedings commenced. Further, the

district court determined that Taylor had failed to demonstrate extraordinary

circumstances sufficient to warrant equitable tolling and further failed to establish

a colorable “actual innocence” claim. The district court thus dismissed Taylor’s

petition. 

Taylor appealed the district court’s dismissal, and we granted a certificate of
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appealability (“COA”) as to the following issue only: Whether the district court

erred in dismissing appellant’s § 2254 petition as untimely. 

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

imposes a one-year period of limitations for writs of habeas corpus. 28 U.S.C.

§ 2244(d)(1)(A). However, “[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 .

. . .” 28 U.S.C. § 2244(d)(2). Further, because § 2244(d) is a statute of limitations

and not a jurisdictional bar, it allows equitable tolling “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). 

Taylor does not dispute that he filed his motion for state habeas relief after

the limitations period had expired. Further, he concedes that there are no

extraordinary circumstances that would justify application of the equitable tolling

doctrine. Thus, the district court did not err in dismissing Taylor’s petition as

untimely. Taylor nevertheless argues that this Court should address the merits of

his § 2254 petition because he is “actually innocent” of the crime of conviction. 

However, we have never held that there is an “actual innocence” exception to the
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AEDPA’s one-year statute of limitations, and we decline to do so in the instant

case because Taylor has failed to make a substantial showing of actual innocence. 

See Sibley v. Culliver, 377 F.3d 1196, 1205 (11th Cir. 2004). Accordingly, we

affirm.

AFFIRMED.