Case: 14-12414   Date Filed: 07/09/2015   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-12414
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:14-cv-00918-JDW-MAP



JESUS AUREOLES,

                                                          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
                     ________________________

                              (July 9, 2015)

Before MARCUS, WILLIAM PRYOR, and COX, Circuit Judges.

PER CURIAM:
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      Jesus Aureoles, a Florida prisoner proceeding pro se, appeals the dismissal

of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. This court granted a

certificate of appealability on one issue: “[w]hether the district court erred in

dismissing Aureoles’s 28 U.S.C. § 2254 petition as time-barred.”

      We review de novo the district court’s dismissal of a § 2254 petition as time-

barred. Damren v. Florida, 

, 820 (11th Cir. 2015). We also review

de novo the denial of equitable tolling. Chavez v. Sec’y Fla. Dep’t of Corr., 

, 1060 (11th Cir. 2011).          We review the district court’s factual

determinations for clear error. 

. As in other civil matters,

a harmless error in a judgment on a § 2254 petition, which does not affect a party’s

substantial rights, is not a basis for vacating or modifying the judgment. FED. R.

CIV. P. 61.

      A district court may consider the timeliness of a state prisoner’s § 2254

petition sua sponte. Day v. McDonough, 

, 209, 

, 1684

(2006). If the district court considers the timeliness of the petition sua sponte, it

must give the parties “fair notice and an opportunity to present their positions.” 

126 S. Ct. at 1684 (citations omitted).

      The Antiterrorism and Effective Death Penalty Act of 1996 established a

one-year statute of limitations period for petitions filed under § 2254, which begins

running, as pertinent here, on the date on which the judgment became final. 28


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U.S.C. § 2244(d)(1)(A). The one-year limitations period is statutorily tolled during

the time that a “properly filed application for State post-conviction or other

collateral review with respect to the pertinent judgment or claim is pending.” 

However, a state petition does not revive the limitations period if the

petition is filed after the limitations period has expired. Moore v. Crosby, 

, 1381 (11th Cir. 2003).

      If a prisoner files his § 2254 petition more than one year after the judgment

becomes final, the petition may still be timely if the petitioner is entitled to

equitable tolling. 

. A petitioner is entitled to equitable

tolling if he can demonstrate that: (1) he has pursued his rights diligently; and (2)

an extraordinary circumstance prevented him from filing a timely petition. 

court erred by dismissing Aureoles’s § 2254 petition sua sponte

as time-barred before granting him fair notice and an opportunity to respond. 

–10, 126 S. Ct. at 1684.        Nevertheless, the court considered

Aureoles’s arguments for equitable tolling on their merits when it reviewed his

motion for a certificate of appealability, and it did not err in concluding that

Aureoles filed an untimely petition. Aureoles’s § 2254 petition was filed after the

one-year statute of limitations expired because more than one year elapsed between

the date on which his convictions became final and the date on which he filed his

first state post-conviction motion.


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      Aureoles presented no extraordinary circumstances that justified equitable

tolling. His allegations of an inability to understand English and a lack of formal

education did not establish extraordinary circumstances that warranted equitable

tolling. Rivers v. United States, 

, 1323 (11th Cir. 2005); United

States v. Montano, 

, 1280 n.5 (11th Cir. 2005). His claim that he

received misinformation from a law clerk did not establish an extraordinary

circumstance, as we do not usually permit claims of misinformation to justify

equitable tolling when a petitioner has been misinformed by an attorney. Helton v.

Sec’y for Dep’t of Corr., 

, 1313 (11th Cir. 2001). Finally, Aureoles

was not entitled to equitable tolling based on the prison’s failure to provide him

with Spanish-language legal materials. He was required to provide details about

the steps he took to file a timely § 2254 petition and the steps he took to find out

about the statute of limitations. Arthur v. Allen, 

, 1253 (11th Cir.),

modified in part on other grounds on reh’g, 

(11th Cir. 2006). He

was also required to provide details about when he discovered the prison library’s

deficiency. 

not do so.

      Because Aureoles presented no grounds for equitable tolling, the district

court did not err in concluding that his § 2254 petition was time-barred. And, the

court’s dismissal of the petition before providing Aureoles with fair notice and an




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opportunity to respond was harmless error. Therefore, we affirm the dismissal of

Aureoles’s § 2254 petition.

      AFFIRMED.




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