ORDER

VIRGINIA M. HERNANDEZ COVINGTON, District Judge.

THIS CAUSE is before the Court on Petitioner Gregory Hunter's ("Petitioner") petition for writ of habeas corpus relief pursuant to 28 U.S.C. § 2254 (Doc. 1), Respondents' response to the petition (Doc. 6), and Petitioner's reply to the response and supplement to the reply (Docs. 10 & 11). For the following reasons, the Court concludes that the petition is untimely and must be dismissed.

Procedural History

Petitioner was charged by amended information with kidnapping while armed (count one), burglary of a dwelling with battery (count two), aggravated assault with a deadly weapon (count three), and violation of a domestic violence injunction (count four). A jury found Petitioner guilty as charged of counts two and four and guilty of the lesser-included offenses of kidnapping and assault as to counts one and three respectively. The trial court sentenced Petitioner to twenty-five year terms of imprisonment for the kidnapping and burglary convictions and to sixty-day terms of imprisonment for the assault and violation of a domestic violence injunction convictions with all sentences to run concurrently. Petitioner appealed his convictions. The Fifth District Court of Appeal of Florida affirmed per curiam on August 10, 2010. (App. F at 58.)

On July 22, 2011, Petitioner filed a motion for post-conviction relief pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure.1 The state court denied the motion, and Petitioner appealed. The Fifth District Court of Appeal of Florida affirmed per curiam. (App. G at 208.) Mandate issued on March 2, 2012. (App. G at 209.)

Petitioner filed the instant habeas petition on June 26, 2012. (Doc. 1.)

Petitioner's Habeas Corpus Petition is Untimely

Pursuant to 28 U.S.C. § 2244:

28 U.S.C. § 2244(d).

In the present case, the Fifth District Court of Appeal of Florida entered its order of affirmance on direct appeal on August 10, 2010. Petitioner then had ninety days, or through November 8, 2010, to petition the Supreme Court of the United States for writ of certiorari. See Sup. Ct. R. 13.2 Thus, under § 2244(d)(1)(A), the judgment of conviction became final on November 8, 2010, and Petitioner had through November 8, 2011, absent any tolling, to file a federal habeas corpus petition. See Bond v. Moore, 309 F.3d 770, 774 (11th Cir. 2002) (holding that the one-year period of limitation does not begin to run until the ninety-day period for filing a petition for certiorari with the United States Supreme Court has expired).

Petitioner filed a Rule 3.850 motion on July 22, 2011. At that time, 256-days of the one-year time limitation for filing a federal habeas petition had expired. Under § 2244(d)(2), the one year was tolled during the pendency of Petitioner's "properly filed" state post-conviction proceeding. The time began to run again on March 2, 2012, when mandate issued on the appeal of the denial of Petitioner's Rule 3.850 motion. At that time, Petitioner had 109-days remaining in which to timely file his petition or through June 19, 2012. The petition, however, was not filed until July 25, 2011. Thus, the instant petition was not filed within the one-year limitation period.

In his Reply, Petitioner argues that he is entitled to equitable tolling of the one-year limitation period. (Doc. 10 at 2-3.) In support of his argument, Petitioner asserts that the following circumstances warrant equitable tolling: (1) his sixth grade educational level, (2) inadequate assistance from post-conviction counsel and prison law clerks, and (3) the destruction of his legal documents by prison staff. Id. Petitioner notes that he was advised by counsel and prison law clerks that his one-year limitation period for filing a federal habeas petition would begin to run after the two-year period expired for filing his state post-conviction motion. Id. at 3.

The Supreme Court of the United States has held that the AEDPA's one-year statutory limitations period set forth in "§ 2244(d) is subject to equitable tolling in appropriate cases." Holland v. Florida, 560 U.S. 631, 645 (2010). Equitable tolling is appropriate when a petitioner demonstrates "`(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way' and prevented timely filing." Id. at 649 (quoting Pace v. DeGuglielmo, 544 U.S. 408, 418 (2005)). "The diligence required for equitable tolling purposes is `reasonable diligence,'. . . `not maximum feasible diligence. . . .'" Id. at 653 (internal quotations and citations omitted). To show extraordinary circumstances, a petitioner must "show a causal connection between the alleged extraordinary circumstances and the late filing of the petition." San Martin v. McNeil, 633 F.3d 1257, 1267 (11th Cir. 2011) (citing Lawrence v. Florida, 421 F.3d 1221, 1226-27 (11th Cir. 2005)). The petitioner bears the burden of establishing the applicability of equitable tolling. Drew v. Dep't of Corr., 297 F.3d 1278, 1286 (11th Cir. 2002).

Petitioner's allegations simply do not rise to the level of an extraordinary circumstance beyond his control which warrants equitable tolling of the one-year period set forth in § 2244(d). First, Petitioner's sixth grade education level does not qualify as an extraordinary circumstance to warrant equitable tolling. Petitioner does not explain how his lack of education "prevented him from exercising due diligence or otherwise allege a causal connection between his alleged mental impairment and his failure to file a timely" habeas petition. Doe v. United States, 469 F. App'x 798, 800 01 (11th Cir. 2012) (citing Lawrence, 421 F.3d at 1226-27). Despite Petitioner's educational level, he was able to timely file and litigate a state post-conviction motion.

Similarly, Petitioner's contention that he was provided erroneous information from post-conviction counsel and prison law clerks regarding the time for filing the instant petition does not establish an extraordinary circumstance to justify equitable tolling. The Eleventh Circuit Court of Appeals has held that "attorney negligence, however gross or egregious, does not qualify as an `extraordinary circumstance' for purposes of equitable tolling; abandonment of the attorney-client relationship . . . is required." Cadet v. Fla. Dep't of Corr., 742 F.3d 473, 481-82 (11th Cir. 2014). The conduct alleged by Petitioner regarding his post-conviction counsel does not demonstrate abandonment of the attorney-client relationship, but instead reflects at best negligence. Likewise, a prison law clerk's improper advice does not warrant equitable tolling. See, e.g., Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (inadequacy of services of inmate law clerk who assisted drafting the habeas petition did not entitle petitioner to equitable tolling of limitations period); Armand v. Strack, No. CV 98-6650, 1999 WL 167720, at *4 (E.D.N.Y. Feb. 19, 1999) (allegations that petitioner received poor legal advice and was unable to receive full assistance from the library staff were insufficient to justify equitable tolling).

Finally, Petitioner's contention that his legal papers were destroyed does not justify equitable tolling. Petitioner was able to pursue state post-conviction relief despite the destruction of his documents, and he has not shown that the destruction of his documents prevented him from timely filing the instant petition. See, e.g., Paulcin v. McDonough, 259 F. App'x 211, 213 (11th Cir. 2007) ("Paulcin asserted only the conclusory allegation that he was denied access to the [law] library and his records, but failed to allege how his inability to obtain legal materials thwarted his efforts to file a timely federal proceeding."); Dodd v. United States, 365 F.3d 1273, 1282B83 (11th Cir. 2004) (stating "lockdowns and periods in which a prisoner is separated from his legal papers are not `extraordinary circumstances' in which equitable tolling is appropriate."); Akins v. United States, 204 F.3d 1086 (11th Cir. 2000) (one-year limitations period is not equitably tolled based on prison lockdowns or misplacement of legal papers). In sum, Petitioner has not established a causal connection between his separation from his legal documents and his late filing of his federal habeas petition. Accordingly, the Court concludes that Petitioner is not entitled to equitable tolling.

Any of Petitioner's allegations that attempt to excuse his failure to file the instant petition within the one-year period of limitation and that are not specifically addressed herein have been found to be without merit.

Certificate of Appealability

This Court should grant an application for certificate of appealability only if the Petitioner makes "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make such a showing "the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Lamarca v. Sec'y Dep't of Corr., 568 F.3d 929, 934 (11th Cir. 2009). When a district court dismisses a federal habeas petition on procedural grounds without reaching the underlying constitutional claim, a certificate of appealability should issue only when a petitioner shows "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.; Lamarca, 568 F.3d at 934. However, a prisoner need not show that the appeal will succeed. Miller-El v. Cockrell, 537 U.S. 322, 337 (2003).

Petitioner has not demonstrated that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong. Moreover, Petitioner cannot show that jurists of reason would find this Court's procedural rulings debatable. Petitioner has failed to make a substantial showing of the denial of a constitutional right. Thus, the Court will deny Petitioner a certificate of appealability.

Accordingly, it is hereby ORDERED AND ADJUDGED:

ORDERED.