FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 19, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-17150

Non-Argument Calendar

________________________

D. C. Docket No. 04-00491-CV-BH-M

MICHAEL LEON POWE, 

Petitioner-Appellant, 

versus 

GRANT CULLIVER, 

Respondent-Appellee. 

________________________

Appeal from the United States District Court

for the Southern District of Alabama

_________________________

(September 19, 2006)

Before DUBINA, HULL and WILSON, Circuit Judges.

PER CURIAM:
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Michael Powe, an Alabama state prisoner proceeding pro se, appeals the

dismissal of his habeas corpus petition, 28 U.S.C. § 2254, as barred by the oneyear statute of limitations of the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). The issue before

this Court is whether the district court erred in dismissing Powe’s § 2254 petition

by concluding that equitable tolling did not apply under the specific facts of this

case. Because the district court’s factual finding that Powe did not exercise due

diligence is not clearly erroneous, we affirm the district court’s dismissal of

Powe’s § 2254 petition.

BACKGROUND

Powe was convicted in Alabama state court for first-degree rape and

sentenced to life imprisonment without possibility of parole. The Alabama Court

of Criminal Appeals affirmed the sentence on April 20, 2001, and issued a

certificate of judgment on May 8, 2001.

Between June 21, 2001, and March 18, 2002, Powe attempted to obtain his

trial transcript and records from his appellate attorney and subsequently-appointed

post-conviction attorney in order to prepare a petition under Ala. R. Crim P. 32. 

Powe sent two letters to his appellate attorney, Glenn L. Davidson, and one letter

to his appointed counsel for the Rule 32 proceedings, Lila Cleveland. Powe also
 Powe did not produce a copy of this letter. Consequently, this is an unsupported 1

assertion included in Powe’s objection to the magistrate’s report and recommendation.

3

asserted that sometime between August 21, 2001, and January 20, 2002, he sent a

letter to the trial court judge requesting that the judge direct Powe’s appellate

attorney to forward his record so that he could pursue post-conviction remedies.1

Powe asserted that he did not receive his trial transcript until March 28, 2003, after

Powe’s family members contacted his appointed counsel for the Rule 32

proceedings. 

On May 1, 2003, Powe filed a Rule 32 petition in Alabama state court. The

Alabama Court of Criminal Appeals ultimately affirmed the trial court’s decision

to deny Powe’s petition. The Supreme Court of Alabama denied Powe’s petition

for a writ of certiorari, and the Alabama Court of Criminal Appeals issued a

certificate of final judgment on June 14, 2004.

On July 20, 2004, Powe executed the pro se § 2254 habeas petition

currently at issue. The magistrate judge issued a report recommending that

Powe’s petition be dismissed as time-barred. Powe filed a timely objection to the

report, acknowledging that without equitable tolling, the magistrate was correct

that his § 2254 petition was time-barred, however he argued that the district court

should apply equitable tolling in his case. Specifically, Powe requested that the

district court equitably toll the period between June 21, 2001, and March 28, 2003,
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because during that time his appellate attorneys failed to provide him with his trial

transcript, despite his repeated requests. He argued that this precluded him from

filing a Rule 32 petition with the state in time to toll the AEDPA limitations

period. 

The district court ultimately dismissed Powe’s § 2254 petition as timebarred. Powe appealed the district court’s order and petitioned the district court

for a certificate of appealability (“COA”). In his petition for a COA, Powe

reiterated his argument that equitable tolling should apply for the time during

which he diligently sought his trial transcripts but could not obtain them from his

attorneys. The district court denied Powe’s petition for a COA, concluding that

Powe had not satisfied the “substantial showing” requirement. 

Powe then petitioned this Court for a COA. We granted a COA on the issue

of whether the district court properly determined that appellant was not entitled to

equitable tolling of 28 U.S.C. § 2244(d)(1)’s one-year statute of limitations

applicable to 28 U.S.C. § 2254 petitions.

STANDARD OF REVIEW

We review the district court’s decision to deny equitable tolling de novo. 

Lawrence v. Florida, 421 F.3d 1221, 1224 (11th Cir. 2005), cert. granted, 126 S.

Ct. 1625, 164 L. Ed. 2d 332 (2006). The district court’s factual determinations,
5

however, we review for clear error. Id. The clear error “standard requires us to

affirm a district court’s findings of fact unless the record lacks substantial

evidence to support that determination.” Drew v. Dep’t of Corr., 297 F.3d 1278,

1283 (11th Cir. 2002) (internal quotation marks omitted). “[A] determination

regarding a party’s diligence is a finding of fact that will not be disturbed unless

clearly erroneous.” Id. (internal quotation marks omitted).

DISCUSSION

The AEDPA imposes a one-year statute of limitations for filing a § 2254

habeas petition. 28 U.S.C. § 2244(d)(1). The period begins to run following one

of four events, including “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such review.”

Id. The judgment becomes “final” on the date on which the U.S. Supreme Court

issues a decision on the merits of the petitioner’s direct appeal, denies certiorari, or

after the expiration of the 90 days in which the petitioner could have filed such a

petition. Bond v. Moore, 309 F.3d 770, 773 (11th Cir. 2002) (quoting Kaufman v.

United States, 232 F.3d 1336, 1339 (11th Cir. 2002)). “The 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). 
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Additionally, the statute of limitations may be equitably tolled where a

petitioner “untimely files because of extraordinary circumstances that are both

beyond his control and unavoidable even with diligence.” Lawrence, 421 F.3d at

1226 (quotation omitted). Equitable tolling is applied sparingly and is an

extraordinary remedy that is “limited to rare and exceptional circumstances, such

as when the State’s conduct prevents the petitioner from timely filing.” Id. When

evaluating whether a prisoner is entitled to equitable tolling, “[e]ach case turns on

its own facts.” Knight v. Schofield, 292 F.3d 709, 711 (11th Cir. 2002). The

petitioner bears the burden of showing that the circumstances warrant equitable

tolling. Drew, 297 F.3d at 1286. 

We have repeatedly held that mere attorney negligence is not a basis for

equitable tolling. Helton v. Sec’y for Dep’t of Corr., 259 F.3d 1310, 1313 (11th

Cir. 2001); Steed v. Head, 219 F.3d 1298, 1300 (11th Cir. 2000); Sandvick v.

United States, 177 F.3d 1269, 1271-72 (11th Cir. 1999). Moreover, even if a

prisoner shows that “extraordinary circumstances” occurred, the prisoner must still

establish that he acted with due diligence in order to be entitled to equitable

tolling. See Helton, 259 F.3d at 1313. 

As an initial matter, the equitable tolling requested by Powe would render

his § 2254 petition timely. Without equitable tolling, the AEDPA limitations
 This date is 90 days from May 8, 2001, the date on which the Alabama Court of Criminal 2

Appeals entered Powe’s certificate of judgment. We give Powe the benefit of the 90-day period in

which he could have filed his petition for certiorari to the U.S. Supreme Court, see Sup. Ct. R. 13.1

(allowing 90 days to seek certiorari after the “court of last resort” denies discretionary review), even

though it does not appear he first sought review from Alabama’s highest court. Without equitable

tolling, however, Powe’s § 2254 petition remains time-barred regardless of the application of the 90-

day period. 

Powe requests equitable tolling from June 21, 2001, through March 28, 2003. If the 3

appropriate triggering date was August 6, 2001, see supra note 2, then he is not entitled to have the

period from June 21, 2001, through August 6, 2001, tolled because that period of time was not

counted against him. Thus, the period of time at issue is from the triggering date of August 6, 2001,

until March 28, 2003, the date on which Powe received his trial transcripts.

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period would have been triggered on August 6, 2001, and would have run until

2

Powe filed his Rule 32 petition on May 1, 2003. Thus, the one-year AEDPA

limitations period would have expired before Powe filed his state court collateral

petition, and his state court petition would not have statutorily tolled the federal

limitations period under 28 U.S.C. § 2244(d)(2). See Webster v. Moore, 199 F.3d

1256, 1259 (11th Cir. 2000). 

If the district court had tolled the period while Powe was awaiting his trial

transcript, the AEDPA clock would have started on March 28, 2003, the date he 3

received the transcript, and run for 34 days until May 1, 2003, the date he filed his

Rule 32 collateral state petition. The time during which his Rule 32 petition was

pending in state court would have tolled the federal limitations period in

accordance with 28 U.S.C. § 2244(d)(2). Thus, the clock would have started again

on June 14, 2004, the date on which the Alabama Supreme Court issued a final

judgment on Powe’s Rule 32 petition, and run for 36 days until July 20, 2004, the
8

date on which Powe initiated his § 2254 petition with the district court. Thus,

with the requested period of equitable tolling, Powe’s petition would have been

timely filed by approximately 295 days. 

Powe argues that the district court erred in denying equitable tolling

because he had no control over his attorneys’ failure to provide him with the trial

transcripts which he needed to file his Rule 32 petition in the Alabama state court

and because he acted diligently in attempting to obtain his trial transcripts. 

Although the circumstances of this case present some reasonable debate as to

Powe’s diligence in attempting to file his Rule 32 petition, the district court made

a factual finding that equitable tolling did not apply because Powe failed to

exercise due diligence. The standard of review for this factual finding by the

district court (clear error) is dispositive of the instant application of equitable

tolling. See Drew, 297 F.3d at 1289-90.

It is noteworthy that Powe apparently contacted both of his appellate

attorneys numerous times and solicited the help of the trial court judge in an

attempt to obtain his trial transcripts. He knew of the impending deadline and was

actively attempting to ensure that his attorneys either filed his Rule 32 petition or

sent him his trial transcript so he could file it himself. As discussed previously,

this Court has stated on numerous occasions that mere attorney negligence is not
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sufficient to warrant equitable tolling. Helton, 259 F.3d at 1313; Steed, 219 F.3d

at 1300; Sandvick, 177 F.3d at 1271-72. Those cases, however, are

distinguishable from the present case on factual grounds. The circumstances in

the three cases referenced were not “extraordinary” because they involved simple

human errors—in other words, mistakes or oversights, such as misunderstanding a

statute or relying on the efficiency of the postal service, which occur on a regular

basis. See Helton, 259 F.3d at 1313; Steed, 219 F.3d at 1300; Sandvick, 177 F.3d

at 1272. In the instant case, however, the circumstances are arguably

“extraordinary” because Powe’s attorneys’ failures went beyond simple mistakes

into the realm of attorney misconduct. 

It appears that Powe’s attorneys violated at least two fundamental tenets of

professional responsibility. First, “[a] lawyer shall keep a client reasonably

informed about the status of a matter and promptly comply with reasonable

requests for information.” Ala. Rules of Prof’l Conduct R. 1.4 (1990). Powe sent

two letters requesting his trial transcript to his first appellate attorney and did not

receive a response until over eight months after he sent the first letter, when the

attorney wrote Powe to inform him that his new attorney had the trial transcript. 

Powe then wrote his second attorney, but never received a response from her. 
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A second tenet of professional responsibility states that “[a] lawyer shall

abide by a client’s decisions concerning the objectives of representation . . . .”

Ala. Rules of Prof’l Conduct R. 1.2. Powe made it clear to both attorneys that he

wished to pursue a Rule 32 petition in a timely manner. Even if the attorneys

believed such a petition was not warranted, Powe alleges that their failure to

provide him with his transcripts prevented him from filing the petition himself. 

Thus, the behavior of Powe’s attorneys may have been so far outside the range of

acceptable professional conduct to be considered “extraordinary.”

Nonetheless, even if Powe’s attorneys acted with such malfeasance as to

amount to “extraordinary circumstances,” Powe must still show he acted with due

diligence in order to be entitled to equitable tolling. See Helton, 259 F.3d at 1313. 

The district court found that Powe did not act with due diligence for the following

reasons: (1) Powe’s attempt to obtain his transcript consisted of writing only four

letters—three to his attorneys and one to the trial judge; (2) Powe did not seek

further help from the trial court, despite his knowledge of the impending deadline;

and (3) Powe could have filed his Rule 32 petition without his transcript,

explaining to the court that he was unable to obtain the transcript from his

attorneys. Powe has not shown that “the record lacks substantial evidence” to
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support these findings under clear error review. Drew, 297 F.3d at 1283 (internal

quotation marks omitted). 

The first finding simply summarizes the facts as alleged by Powe. 

Similarly, the second district court finding is consistent with Powe’s version of the

facts. Powe does not claim to have made additional attempts to contact the trial

court, either on his own or through his family members. Though Powe alleges that

he had family members who were trying to contact both attorneys, he does not

contend that these family members attempted to contact the trial court. Further, in

the letter Powe provided from his first attorney dated March 1, 2002, the attorney

suggested that Powe contact the clerk of the trial court to request his records and

provided Powe with her address, yet Powe provides no evidence that he acted on

this suggestion. Thus, there is substantial evidence to support the district court’s

finding that Powe did not seek further help from the trial court. 

Finally, Powe has not shown that the record lacks substantial evidence to

support the district court’s third determination—that Powe could have filed a Rule

32 petition without his trial transcripts. Powe’s argument on this point consists of

the conclusory statement that “there was no way” he could file the Rule 32 petition

without his trial transcript. The form used to file a Rule 32 petition in Alabama

state court contains instructions requiring the petitioner to “be as specific as
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possible as to the facts” that support each ground for relief. Ala. R. Crim. P. 32

app. The detailed instructions, however, say nothing about attaching trial

transcripts. Powe fails to articulate specific reasons for which the transcript was

necessary in his case, nor does he point out information in the transcript that was

outside the knowledge he already had of the trial proceedings. Powe’s

unsupported, general allegation is not sufficient to satisfy his burden to show that

the district court’s determination lacked substantial supporting evidence in the

record. Thus, as there was substantial evidence in the record to support the district

court’s finding that he did not act with due diligence, Powe has not overcome the

“‘very high standard’” of demonstrating clear error. See Drew, 297 F.3d at 1289-

90 (quoting In re Hillsborough Holdings Corp., 127 F.3d 1398, 1401 (11th Cir.

1997)).

CONCLUSION

Although the circumstances of this case present a reasonable debate as to

whether Powe’s attorneys’ actions constituted “extraordinary circumstances” and

as to Powe’s diligence in attempting to file his Rule 32 petition, we will not

disturb the district court’s factual finding that Powe failed to exercise due

diligence unless it is clearly erroneous. See Lawrence, 421 F.3d at 1224-25. Powe

has not shown that the record lacks “substantial evidence” to support the district
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court’s finding that he failed to exercise due diligence. Accordingly, we AFFIRM

the district court’s dismissal of Powe’s § 2254 petition.

AFFIRMED.