[DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                         SEPTEMBER 6, 2007
                            No. 06-16504                 THOMAS K. KAHN
                        Non-Argument Calendar                 CLERK
                      ________________________

               D. C. Docket No. 04-00104-CV-FTM-29-SPC

IVAN MELENDEZ,



                                                  Petitioner-Appellant,

                                 versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,


                                                  Respondents-Appellees.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________

                          (September 6, 2007)

Before ANDERSON, BIRCH and MARCUS, Circuit Judges.

PER CURIAM:
      Ivan Melendez, an unrepresented Florida prisoner, appeals the district

court’s judgment dismissing his habeas corpus petition, filed pursuant to 28 U.S.C.

§ 2254, as barred by the one-year statute of limitations applicable to such petitions

under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See

28 U.S.C. § 2244(d)(1). We granted Melendez a certificate of appealability to

consider whether equitable tolling rendered the filing of his petition timely. It does

not and we affirm.

      Melendez argues that he is entitled to have his limitations period equitably

tolled because the lawyer who represented him in his state postconviction

proceedings mistakenly filed a second petition for state postconviction relief

(a petition that was held untimely under state law) rather than complying with

Melendez’s request to file a § 2254 petition within the period of limitations.

Melendez alleges that he diligently pursued this matter with his lawyer, but that his

lawyer ignored his requests and did not return his legal papers to him until after

AEDPA’s one-year limitations period had expired.

                                            I.

      “This Court reviews de novo a district court’s dismissal of a [§ 2254

petition] as time-barred, as well as a district court’s finding that equitable tolling

does not apply.” Outler v. United States, 

, 1278 (11th Cir. 2007).



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                                          II.

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

petition and identifies four discrete events that trigger the running of the one-year

period. See 28 U.S.C. § 2244(d)(1)(A)-(D). The district court found that

Melendez’s § 2254 petition was untimely under § 2244(d)(1)(A), the only

potentially relevant triggering event. Melendez does not challenge that ruling on

appeal. Thus, Melendez’s § 2254 petition can be considered timely only if

equitable tolling applies.

      Equitable tolling operates to save an otherwise untimely filed § 2254 petition

if the petition was untimely filed “because of extraordinary circumstances that are

both beyond [the petitioner’s] control and unavoidable even with due diligence.”

(quotation omitted). Equitable tolling, however, is an

extreme remedy and is applied sparingly. See Drew v. Dep’t of Corr., 

, 1286 (11th Cir. 2002). Melendez bears the burden of showing that equitable

tolling is warranted and must demonstrate both (1) diligent efforts to timely file

and (2) extraordinary and unavoidable circumstances. See Arthur v. Allen, 

, 1253 (11th Cir. 2006). We have held that “an attorney’s miscalculation

of the limitations period or mistake is not a basis for equitable tolling.” Steed v.

Head, 

, 1300 (11th Cir. 2000); Helton v. Sec’y for Dep’t of Corr.,



                                           3


, 1313 (11th Cir. 2001). We have also said that “periods in which a

prisoner is separated from his legal papers are not ‘extraordinary circumstances’ in

which equitable tolling is appropriate.” Dodd v. United States, 

,

1283 (11th Cir. 2006).

      We conclude that equitable tolling is not warranted in this case because

Melendez cannot show extraordinary circumstances. The untimely filing of his

§ 2254 petition ultimately resulted from his lawyer’s mistaken belief that the filing

of a second state postconviction petition would toll the limitations period under

28 U.S.C. § 2244(d)(2). That belief turned out to be mistaken because Melendez’s

second application for state postconviction relief was dismissed as untimely, and

such an untimely application in state court is not “properly filed” under AEDPA

and thus does not toll the limitations period under § 2244(d)(2). See Webster v.

Moore, 

, 1257 (11th Cir. 2000). Our case law establishes that such a

“miscalculation or misinterpretation by [petitioner’s] attorney in interpreting the

plain language of the statute does not constitute an extraordinary circumstance

sufficient to warrant equitable tolling.” 

; 

.

      Equally unavailing is Melendez’s argument that he lacked access to his legal

papers until after the federal limitations period had expired. Melendez was



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separated from his legal papers while his lawyer prepared his case for state

postconviction relief, a period of separation that is routine for prisoners with access

to legal representation. Even assuming that Melendez’s lawyer failed to return

Melendez’s legal papers promptly upon request, it is clear that any such failure was

the result of the lawyer’s mistaken belief that filing a second state postconviction

petition was the appropriate course of action and would toll AEDPA’s one-year

period of limitations. Because a lawyer’s error does not constitute extraordinary

circumstances, equitable tolling is not warranted under the circumstances of this

case. See 

.

                                          III.

      For these reasons, we affirm the judgment of the district court dismissing

Melendez’s § 2254 petition as barred by the statute of limitations.

      AFFIRMED.




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