FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPT 19, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-15366

Non-Argument Calendar

________________________

D. C. Docket Nos. 06-21782-CV-AJ

91-00870-CR-AJ

UBALDO MAZOLA, 

Petitioner-Appellant, 

versus 

UNITED STATES OF AMERICA, 

Respondent-Appellee. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(September 19, 2008)

Before HULL, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Ubaldo Mazola, a federal prisoner proceeding with counsel, appeals the
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district court’s dismissal of his 28 U.S.C. § 2255 motion to vacate as time-barred. 

After pleading guilty to conspiracy to possess with intent to distribute a detectable

amount of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846, Mazola was

sentenced to 96 months’ imprisonment. His conviction became final on May 2,

2005. As he acknowledges, Mazola had one year, or until May 2, 2006, to file his

§ 2255 motion to vacate. See 28 U.S.C. § 2255(f)(1)-(4) (establishing a one-year

limitations period for § 2255 motions). On July 17, 2006, 52 days after the

expiration of the one-year deadline, Mazola filed his § 2255 motion. 

The district court found Mazola was entitled to 42 days of equitable tolling

for the time he was hospitalized during the year after his conviction. Even with

these 42 days, however, Mazola’s § 2255 motion was untimely by 10 days. On

appeal, Mazola argues that he was entitled to additional equitable tolling because

of his dire medical condition and his due diligence in filing the § 2255 motion.

In a proceeding on a motion to vacate, set aside, or correct sentence, the

district court’s factual findings are reviewed for clear error while legal issues are

reviewed de novo. Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004). 

Under § 2255, the one-year limitations period runs from the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by

governmental action in violation of the Constitution or laws of the
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United States is removed, if the movant was prevented from making a

motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the

Supreme Court, if that right has been newly recognized by the

Supreme Court and made retroactively applicable to cases on

collateral review; or

(4) the date on which the facts supporting the claim or claims

presented could have been discovered through the exercise of due

diligence.

28 U.S.C. § 2255(f)(1)-(4). 

Once the limitations period begins, it may be tolled by equitable tolling. The

doctrine of equitable tolling applies “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)

(quotation marks omitted). “Equitable tolling is an extraordinary remedy which is

typically applied sparingly.” Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000). 

An inmate bears the difficult burden of showing specific facts to support his claim

of extraordinary circumstances and due diligence. See Akins v. United States, 204

F.3d 1086, 1089-90 (11th Cir. 2000). The equitable tolling analysis is fact-specific

and must be determined on a case-by-case basis. Downs v. McNeil, 520 F.3d

1311, 1322 (11th Cir. 2008).

As noted earlier, Mazola filed his § 2255 motion 52 days after the one-year
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statutory deadline. See 28 U.S.C. § 2255(f)(1); Washington v. United States, 243

F.3d 1299, 1301 (11th Cir. 2001). The district court found that Mazola was

entitled to 42 days of equitable tolling, accounting for the days he was hospitalized

for pneumonia and tuberculosis, in addition to his chronic conditions of seizures

and asthma. The district court also found that Mazola was not entitled to any

additional equitable tolling because he failed to show that his medical conditions

constituted extraordinary circumstances during the time that he was not

hospitalized or that he acted diligently to file his § 2255 motion in a timely

manner. These findings were not clearly erroneous. Thus, with the 42 days of

equitable tolling, Mazola filed his § 2255 motion 10 days late, and the district court

properly dismissed the motion as untimely.

Upon review of the record and the parties’ briefs, we discern no reversible

error.

AFFIRMED.