# Lively

> District Court, M.D. Alabama · March 9, 2026

URL: https://www.frixlaw.com/law-library/cases/11282030

## Case

- **Full name:** Christopher Carroll Lively v. Chadwick Crabtree, et al.
- **Court:** District Court, M.D. Alabama
- **Decided:** March 9, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11282030

## How later opinions describe it (automated extraction)

- noting that inmate provided no specificity about the steps he took to pursue his federal claims and holding it is not enough to say the facility “lacked all relevant statutes and case law or that the procedure to request specific materials was inadequate”
- holding that prison lockdown, which precluded access to the law library during the time in which he was preparing his motion, was not an extraordinary circumstance, given that inmate had nearly eleven months prior to lockdown to prepare petition
- holding that lack of legal education and ignorance of the law are not excuses for failing to file in a timely fashion and further noting that, “[a]s with any litigant, pro se litigants ‘are deemed to know of the one-year statute of limitations’”
- reaffirming that failure of court-appointed attorney to “file more promptly [for state post-conviction relief does not qualify] as an impediment” created by state action

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

CHRISTOPHER CARROLL LIVELY, )
AIS #291731, )
)
Petitioner, )
)
v. ) CASE NO. 1:23-cv-00029-BL
)
CHADWICK CRABTREE, et al., )
)
Respondents. )

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Christopher Lively, an inmate proceeding pro se, filed a Petition for Writ
of Habeas Corpus under 28 U.S.C. § 2254. (Doc. 1). Respondents filed an answer
asserting that Lively’s claims are barred by the applicable one-year statute of
limitations. (Doc. 11). The court issued an order requiring Lively to show cause
why his petition should not be dismissed for timeliness (doc. 11), and Lively filed
a response addressing the issue of timeliness (doc. 13). Upon consideration of the
parties’ filings and for the reasons below, the court concludes that an evidentiary
hearing is not warranted. Accordingly, it is ORDERED that Lively’s § 2254
Petition is DENIED, and this case is DISMISSED with prejudice.
II. PROCEDURAL BACKGROUND
Following Lively’s conviction in 2013 in the Circuit Court of Dale County,

Alabama, on charges of first-degree rape, first-degree sodomy, second-degree
rape, second-degree sodomy, and incest, he filed a timely direct appeal of his
conviction, which was affirmed in a memorandum decision by the Alabama Court

of Criminal Appeals on March 6, 2015. (Doc. 10-3). Lively did not petition the
Alabama Supreme Court for certiorari review, and the Court of Criminal Appeals
issued a certificate of judgment on May 6, 2015. (Doc. 1 at 2; Doc. 10-4). At the
time, Lively had already filed his first Rule 32 petition, and it was pending when

the Alabama Court of Criminal Appeals issued its certificate of judgment in his
direct appeal. (Doc. 10-6). When the Rule 32 petition was denied by the circuit
court (doc. 10-6 at 17–23), Lively appealed, and on April 22, 2016, the Alabama

Court of Criminal Appeals affirmed. (Doc. 10-8). Lively petitioned for a writ of
certiorari to the Alabama Supreme Court, which was denied, and a certificate of
judgment was issued on August 12, 2016. (Docs. 10-9, 10-10).
Lively filed his second Rule 32 petition on July 3, 2017. (Doc. 10-12 at

35). It was dismissed by the circuit court, and on May 17, 2019, the Court of
Criminal Appeals issued an opinion affirming the dismissal. (Doc. 10-14). Lively
petitioned for a writ of certiorari to the Supreme Court of Alabama; it was denied
without opinion, and a certificate of judgment was issued on July 3, 2019. (Doc.
10-16).

Lively filed a third Rule 32 petition on May 7, 2020. (Doc. 10-18 at 9).
The circuit court denied the petition, and on August 20, 2021, the Alabama Court
of Criminal Appeals affirmed the dismissal. (Doc. 10-20). He then petitioned the

Alabama Supreme Court for a writ of certiorari, which was denied, and a
certificate of judgment was issued on March 4, 2022. (Docs. 10-21, 10-22).
Lively submitted the instant petition, his first petition seeking a writ of
habeas corpus, on January 8, 2023.1

III. DISCUSSION
A. Timeliness under the AEDPA
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

contains the following time limitations for federal habeas petitions:
(1) A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the judgment
of a State court. The limitation period shall run from the latest of—

(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;

1 Although the petition was docketed on January 12, 2023, Lively signed the petition on January
8, 2023, and a pro se inmate’s complaint is deemed by law to have been filed the date it is
delivered to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 271-272 (1988); Adams
v. United States, 173 F.3d 1339, 1340-41 (11th Cir. 1999).
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws
of the United States is removed, if the applicant was prevented
from filing by such State action;

(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has been
newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.

(2) 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 under this subsection.

28 U.S.C. § 2244(d).
B. Computation of Timeliness
In most cases, a § 2254 petition must be filed within one year of the date on
which the state court’s judgment becomes final, either by the conclusion of direct
review or by the expiration of time for seeking direct review. 28 U.S.C. §
2244(d)(1)(A); Pugh v. Smith, 465 F.3d 1295, 1298–99 (11th Cir. 2006). In this
case, the Alabama Court of Criminal Appeals affirmed the circuit court’s ruling
on direct appeal on March 6, 2015. (Doc. 10-3). Lively did not apply for a
rehearing or seek certiorari review in the Alabama Supreme Court, and the Court
of Criminal Appeals issued a certificate of judgment on May 6, 2015. (Doc. 10-
4). Thus, for purposes of § 2244(d)(1)(A), Lively’s judgment became final on
May 6, 2015. See Brown v. Hooks, 176 F. App’x 949, 951 (11th Cir. 2006) (noting
conviction became final on date Alabama Court of Criminal Appeals issued

certificate of judgment when petitioner did not petition for certiorari review in
Alabama Supreme Court).
At the time, because Lively’s first Rule 32 petition was pending, the statute

of limitations was tolled until August 12, 2016, when a certificate of judgment
was issued on the petition. (Doc. 10-10). Lively filed a second Rule 32 petition
on July 3, 2017 (doc. 10-12 at 35), which again tolled the limitations period, but
by then 325 days of the one-year statute of limitation had elapsed. The certificate

of judgment on the second Rule 32 petition was issued on July 3, 2019 (doc. 10-
16), giving Lively 40 days from that date—or until August 12, 2019—to file a
timely § 2254 petition. He filed a third Rule 32 petition on May 7, 2020; however,

because his AEDPA statute of limitations had already expired, this third petition
did not further toll the statute of limitations.
Because Lively filed the instant habeas petition on January 8, 2023, almost
three and a half years after the AEDPA statute of limitations expired, he is not

entitled to habeas review absent statutory or equitable tolling.
C. Lively’s Arguments Regarding Timeliness
Lively’s petition contains a statement asserting that it was timely filed.

(Doc. 1 at 20 (stating that his last petition for writ of certiorari to the Alabama
Supreme Court was denied on March 4, 2022, and that his § 2254 petition was
filed “in a timely manner”)). However, with his petition, Lively also submitted a

“response” addressing the issue of timeliness and arguing that an “impediment”
prevented him from filing sooner. (Doc. 2 at 3, 6–7). In that response, Lively
explains how, upon his arrival at Limestone Correctional Facility in 2012, an

inmate told him not to “observe” AEDPA rulings or their petitions would be
dismissed. Id. at 6. He describes this inmate as “a governmental appointed, law-
clerk with only an eighth grade education” who erroneously told inmates to “avoid
all AEDPA rulings.” Id. at 7. Lively also asserts that, while this inmate was the

“appointed” law clerk, the habeas corpus books in the library went missing and
that his facility’s law library was shut down from August 2020 until November
2022. Id. at 6–7.

He goes on to explain that he now has the assistance of the “newly
appointed” law clerk, who is also “untrained in the law” (doc. 2 at 3) but who,
upon the re-opening of the law library:
discover[ed], basically the one year limitations to the U.S.C. § 2254,
under the rules of § 2244, is the basic foundation of the 365
limitations and exceptional ruling pursuant to “impediment” and its
standards. The prior law clerk’s [erroneous conclusions] of law, has
deprived many inmates in this dorm, of the federal laws, in
accordance to books also coming up missing, the Habeas Corpus
Books. And sold to other inmates, unknown to the ones doing
appeals. This was just discovered the 23 of December 2022. As the
books were returned to the now, new Protective Custody Law-
Library.
Id. at 6. In his response, Lively provides no details about the date on which the
habeas materials allegedly went missing, but he argues he was prevented from
filing the instant § 2254 petition by the “impediment of a governmental appointed

law clerk with only an eighth-grade education” who gave erroneous information
and allowed the habeas books to be stolen on his watch.2 Id. at 7.
Later, in response to the court’s show cause order on the issue of timeliness,
Lively reiterated that he received erroneous information about the AEDPA, that

the law library was shut down from August 2020 until November or December
2022, and that the habeas materials went missing from the library. (Doc. 13).
However, he claimed that the habeas materials had been stolen, “presumably” by

the law clerks (id. at 2), and hoarded by a “mental” inmate for five to six years
until December 23, 2022, when the inmate “got tired of them laying around” (id.
at 2–3). He further asserted that the law clerk who told him to “ignore AEDPA

2 While the “response” filed with Lively’s petition addressed the issue of timeliness, the purpose
of the filing was to argue that his petition should not be barred as a successive petition under
Rule 9 of the Rules Governing 2254 Cases in the United States District Courts. See doc. 2
(“Petitioner’s Response as to Why His Petition Should Not be Barred Under Rule 9”). The
court’s records show that the instant petition is Lively’s first § 2254 petition; however, Lively
claims that he previously submitted a § 2254 petition to this court but never received a response.
Id. at 2. In July 2021, Lively filed a brief with the Alabama Court of Criminal Appeals
indicating that, sometime after July 3, 2019, he submitted a § 2254 petition in federal court
because he had exhausted his state remedies and that he was “further await[ing] an answer from
the Court.” (Doc. 10-19 at 10, ¶ 25). Lively later discovered that he had mailed his § 2254 to
the wrong address. (Doc. 2 at 7). In Lively’s response to the court’s show cause order, he states
that he filed the § 2254 petition on June 18, 2020 (doc. 13 at 1), approximately ten months after
his statute of limitations expired.
rulings” was “placed in charge by the state” (id. at 1), making him a “state actor”
who impeded the timely filing of the instant petition (id. at 2).3

D. Statutory Tolling
Pursuant to 28 U.S.C. § 2244(d)(2), the AEDPA statute of limitations can
be statutorily tolled under 28 U.S.C. § 2244(d)(1)(B), (C), or (D) if unlawful state

action impeded an inmate from filing a timely § 2254 petition; his claims are based
on a right newly recognized by the United States Supreme Court and made
retroactively applicable to cases on collateral review; or facts supporting his
claims could not have been discovered earlier by exercising due diligence. Lively

argues that he is entitled to statutory tolling under subsection (B) because the
events outlined above constitute state action that impeded the timely filing of his
habeas petition. (Doc. 2 at 6–7; Doc. 13 at 2–3).

3 Lively also argues that his legal mail was slow, providing two examples from 2023; that he
has not had supplies to file “meaningful documents” with the courts; and that access to the law
library was a “constant issue and problem for right at three years” until it was shut down in
August 2020. (Doc. 13 at 1–3). Lively’s statute of limitations ran from August 12, 2016, to
July 3, 2017, and again from July 3, 2019, to August 12, 2019; therefore, any difficulties
receiving mail in 2023 would not have prohibited him from timely filing a § 2254 petition in
August 2019. Moreover, from July 2017 through January 2021, Lively filed his second Rule
32 petition, which included multiple legal citations, a 20-page addendum, and a 39-page brief
with over 40 pages of exhibits (docs. 10-12, 10-13); filed his third Rule 32 petition, which
included multiple legal citations, a 14-page addendum, and a 47-page brief with 21 pages of
exhibits (docs. 10-18, 10-19); and submitted his first § 2254 petition, albeit to the wrong address
(doc. 13 at 1). Thus, the record does not support Lively’s assertions that he lacked adequate
supplies to file meaningful documents or that access to the law library was a “constant issue”
during that time.
First, Lively has provided no support for his argument that a fellow inmate’s
conduct, misinforming him about the AEDPA or allowing habeas materials to go

missing, triggers tolling under § 2244(d)(1)(B). The “impediment” contemplated
by § 2244(d)(1)(B) “requires state action that both ‘violat[ed] . . . the Constitution
or laws of the United States’ and ‘prevented [the prisoner] from filing’ his federal

petition.” Johnson v. Fla. Dep’t of Corr., 513 F.3d 1328, 1331–32 (11th Cir.
2008) (quoting 28 U.S.C. § 2244(d)(1)(B)). Lively cites no legal authority
holding that a fellow inmate’s conduct constitutes “state action” for purposes of
statutory tolling. In fact, even if Lively had received erroneous advice from a

state-appointed attorney, the conduct would not qualify as state action under §
2244(d)(1)(B). Id. at 1331 (noting that, even when the state appoints counsel for
an inmate, “incompetent” performance by appointed counsel “is not the type of

State impediment envisioned in § 2244(d)(1)(B)”) (quoting Lawrence v. Florida,
421 F.3d 1221, 1226 (11th Cir. 2005), and citing Gordon v. Sec’y, Dep’t of Corr.,
479 F.3d 1299, 1301 (11th Cir. 2007) (reaffirming that failure of court-appointed
attorney to “file more promptly [for state post-conviction relief does not qualify]

as an impediment” created by state action)).
Lively’s lack of access to the library also does not constitute an impediment
under these facts. As the Eleventh Circuit has held:

“[T]he mere inability of a prisoner to access the law library is not, in
itself, an unconstitutional impediment.” Akins v. United States, 204 F.3d
1086, 1090 (11th Cir. 2000). Rather, “[t]he inmate must show that this
inability caused an actual harm, or in other words, unconstitutionally
prevented him from exercising that fundamental right of access to the
courts in order to attack his sentence or to challenge the conditions of
his confinement.” Id. That is, a prisoner may demonstrate actual injury
by establishing that prison officials’ actions actually deterred his pursuit
of a “non-frivolous post-conviction claim or civil rights action.” See Al–
Amin v. Smith, 511 F.3d 1317, 1332–33 (11th Cir. 2008).

Stephen v. United States, 519 F. App’x 682, 683–84 (11th Cir. 2013). Lively’s
allegations regarding access to the library and missing habeas materials were not
made under penalty of perjury; therefore, he has offered nothing more than
unsworn, speculative, and conclusory assertions that the library’s materials were
stolen “presumably” by the “state-actor” law clerks and sold to an inmate who
hoarded them for five or six years. See docs. 2, 13. Conclusory statements are
insufficient to establish statutory tolling.4 However, even taking his allegations
as true, Lively has not shown that illegal state action actually deterred him from
pursuing his § 2254 petition.

4 See, e.g., Dixon v. Sec’y, Dep’t of Corr., No. 8:16-CV-512-T-35JSS, 2017 WL 11913919, at
*2 (M.D. Fla. Feb. 15, 2017) (conclusory statement that petitioner “was impeded and prevented
[from] access[ing] the law library by prison officials” held insufficient to show statutory tolling
warranted in part because petitioner failed to describe how impediment precluded his filing a
petition); Smith v. McNeil, No. 4:08-CV-40-SPM-EMT, 2008 WL 2756405, at *3 (N.D. Fla.
July 14, 2008), report and recommendation adopted, No. 4:08-CV-40-SPM-WCS, 2008 WL
4616602 (N.D. Fla. Oct. 13, 2008), adhered to on reconsideration, No. 4:08-CV-40-SPM-
WCS, 2009 WL 331586 (N.D. Fla. Feb. 6, 2009) (finding conclusory allegation that inmate was
denied access insufficient to establish that state-created impediment prevented inmate from
filing federal petition, as he failed to include “specific factual allegations or evidence showing
when request was submitted, to whom, nature of the request (that is, whether he requested
specific legal materials from the library or physical access thereto), and whether he pursued
additional administrative remedies to obtain access to the library”).
Lively claims that his law library was shut down in August 2020, but that
was more than one year after his statute of limitations expired. He claims that he

received erroneous information about the AEDPA and that federal habeas
materials went missing from the law library; however, he admits that he learned
of the AEDPA in 2012 upon his arrival at Limestone and describes no efforts to

discover the applicable statute of limitations.5 He also has not established that the
missing habeas books or library access were necessary to file a petition or discover
the statute of limitations. Indeed, he filed one § 2254 petition without the habeas
materials, and the federal petition form sets out the statute of limitations in 28

U.S.C. § 2244(d) and specifically instructs petitioners not to include legal
argument or citations to legal authority. See doc. 1 at 6, 14. Lively makes no
showing that he attempted to obtain the federal petition form—or any federal

habeas materials—from prison officials; that prison officials were aware of the
missing habeas books; or that prison officials refused to provide him with a form
petition or federal habeas materials. Thus, Lively’s allegations do not establish
that state officials actually deterred him from filing a timely petition. See

Campbell v. Forniss, No. 2:09-CV-392-MHT, 2012 WL 896259, at *4 (M.D. Ala.
Jan. 24, 2012), report and recommendation adopted, No. 2:09-CV-392-MHT,

5 Moreover, pro se litigants are deemed to know of the AEDPA’s one-year statute of limitations.
See Outler v. United States, 485 F.3d 1273, 1282 n.4 (11th Cir. 2007).
2012 WL 896381 (M.D. Ala. Mar. 16, 2012) (finding inmate’s claim that he did
not have adequate assistance within prison law library “not [to be] the type of

State impediment envisioned in § 2244(d)(1)(B)” and noting that inmate failed to
show causal connection between conduct of prison officials and late filing, in part
because he failed to allege that he attempted to make himself aware of filing

deadline) (citation omitted); Pritchett v. McNeil, No. 3:09-CV-96-LAC-EMT,
2010 WL 1957399, at *2 (N.D. Fla. Apr. 16, 2010), report and recommendation
adopted, No. 3:09-CV-96-LAC-EMT, 2010 WL 1957391 (N.D. Fla. May 14,
2010) (finding no causal connection between late filing and institutional transfers

or delay in sending legal documents, as petitioner failed to show materials were
necessary to file federal habeas petition; the only documents arguably necessary
were brief on direct appeal, post-conviction motion and amendments, and trial

court’s rulings, which were on file with state court but which petitioner made no
showing of trying to obtain); see also Wood v. Spencer, 487 F.3d 1, 7 (1st Cir.
2007) (stating that, because petitioner could have learned about alleged state-
created impediment and “obliterated [its] adverse effects,” the alleged impediment

did not prevent him from the timely filing).
Accordingly, the Court finds that Lively is not entitled to statutory tolling
under § 2244(d)(1)(B).
E. Equitable Tolling
The AEDPA’s limitation period may be equitably tolled when a petitioner

submits an untimely filing “because of extraordinary circumstances that are both
beyond his control and unavoidable even with diligence.” Sandvik v. United
States, 177 F.3d 1269, 1271 (11th Cir. 1999). “[E]quitable tolling is an

extraordinary remedy . . . limited to rare and exceptional circumstances and
typically applied sparingly.” Hunter v. Ferrell, 587 F.3d 1304, 1308 (11th Cir.
2009) (internal quotations and citation omitted). The United States Supreme
Court has held that a petitioner may obtain equitable tolling “only if he shows (1)

that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.” Holland v. Florida,
560 U.S. 631, 649 (2010) (internal quotations and citation omitted). A petitioner

must establish both diligence and extraordinary circumstances to be entitled to
equitable tolling. Arthur v. Allen, 452 F.3d 1234, 1252 (11th Cir.), opinion
modified on reh’g, 459 F.3d 1310 (11th Cir. 2006).
In determining whether “extraordinary circumstances” exist, courts analyze

“the circumstances surrounding the late filing of the habeas petition . . . and
whether the conduct of others prevented the petitioner from timely filing.” Id. at
1253 (citing Helton v. Sec’y for Dep’t of Corr., 259 F.3d 1310, 1314–15 (11th Cir.

2001), and Lawrence v. Florida, 421 F.3d 1221, 1226 (11th Cir. 2005)). To
establish diligence when invoking equitable tolling based on a lack of access to
the prison law library, an inmate “must provide details of the specific actions taken

toward filing the petition.” Id. (citing Helton, 259 F.3d at 1314). Without
evidence showing when he found out about the library’s alleged deficiencies, that
he made independent efforts to determine the relevant limitations period, and how

prison officials “thwarted his efforts,” “the connection between the petitioner’s
untimely filing and any alleged inadequacies in the library is insufficient.” Id.
(quoting Helton, 259 F.3d at 1314).
Lively has established neither extraordinary circumstances nor diligence.

With respect to extraordinary circumstances, a lack of training in the law—for
Lively or the inmates giving him assistance—is not a basis for equitable tolling.
The Eleventh Circuit has repeatedly held that ignorance of the law is not grounds

for equitable tolling. Perez v. Florida, 519 F. App’x 995, 997 (11th Cir. 2013)
(holding that lack of legal education and ignorance of the law are not excuses for
failing to file in a timely fashion and further noting that, “[a]s with any litigant,
pro se litigants ‘are deemed to know of the one-year statute of limitations’”)

(quoting Outler v. United States, 485 F.3d 1273, 1282 n.4 (11th Cir. 2007)); see
also Wallace v. United States, 981 F. Supp. 2d 1160, 1164 (N.D. Ala. 2013)
(noting that “[n]either miscalculation of the limitations period, nor ignorance of

the law, constitutes an extraordinary circumstance that would justify equitably
tolling of the statute of limitations”) (citing Miller v. Florida, 307 F. App’x 366
(11th Cir. 2009) (lack of education) and Wainwright v. Sec’y, Dept. of Corr., 537

F.3d 1282, 1286 (11th Cir. 2007) (legal confusion)).
Likewise, Lively’s lack of access to the law library does not constitute an
extraordinary circumstance warranting equitable tolling. See Miller, 307 F. App’x

at 368 (“even restricted access to a law library, lock-downs, and solitary
confinement do not qualify as [extra]ordinary circumstances”). As mentioned
above, Lively’s law library was allegedly locked down in August 2020, but by
then his statute of limitations had expired. His state court filings from July 2017

through January 2021 demonstrate that access to the law library was not a problem
for Lively, even during the lockdown. Concerning the habeas materials that
Lively asserts were missing from the law library for five or six years, nothing in

the record establishes that those specific materials—whatever they may be—were
his only means of determining the AEDPA’s statute of limitations. The federal
habeas petition form sets out the AEDPA’s statute of limitations. Lively knew
about the AEDPA as early as 2012, and he has not alleged that he lacked access

to habeas forms or that he could not correspond with the Court and obtain a
form—indeed, he submitted one petition before filing the instant petition, albeit
to the wrong court after the statute of limitations expired. Thus, Lively has failed

to show that inadequacies in his prison law library constitute extraordinary
circumstances justifying equitable tolling.6 See, e.g., Jackson v. McLaughlin, No.
17-11474-B, 2017 WL 4844624, at *2 (11th Cir. July 12, 2017) (stating that

“restricted access to a law library, lock-downs, and solitary confinement do not
qualify as extraordinary circumstances to warrant equitable tolling”) (citing Akins,
204 F.3d at 1089–90); Paulcin v. McDonough, 259 F. App’x 211 (11th Cir. 2007)

(finding transfer to county jail and denial of access to legal papers and law library
did not constitute extraordinary circumstances); Bell v. Sec’y, Dep’t. of Corr., 248
F. App’x 101, 104–105 (11th Cir. 2007) (holding that inability to access prison
law library was not extraordinary circumstance beyond his control that prevented

him from timely filing his habeas petition despite his due diligence); Sanchez v.
United States, 170 F. App’x 643, 647 (11th Cir. 2006) (holding that prison
lockdown, which precluded access to the law library during the time in which he

was preparing his motion, was not an extraordinary circumstance, given that
inmate had nearly eleven months prior to lockdown to prepare petition); Wallace,
981 F. Supp. 2d at 1165 (holding that insufficient access to law library while in
state custody did not constitute extraordinary circumstances as “institutional

transfers, periods of confinement under more restrictive conditions than general

6 Additionally, even taking Lively’s unsworn allegations as true, if the habeas materials were
missing for “five or six years” before being returned to the law library in November 2022, it
does not explain the time period from August 2016, when Lively’s statute of limitations began
to run, to the date the habeas materials went missing (November 2016 if the materials were
missing for a full six years or November 2017 if they were missing for only five years).
population, and lack of ready access to legal paperwork and law libraries are not
‘extraordinary circumstances’; they are usual incidents of prison life”) (quoting

Neal v. McNeil, No. 3:09-CV-23-MCR-EMT, 2010 WL 298294, at *8 (N.D. Fla.
Jan. 15, 2010); Cutts v. Jones, Civil Action No. 1:06-CV-256–MHT, 2009 WL
230091, at *7 (M.D. Ala. Jan. 30, 2009) (“[N]either an alleged inadequate prison

law library nor limited access thereto establishes extraordinary circumstances
warranting equitable tolling of the limitation period.”).
Finally, even if Lively could establish the existence of extraordinary
circumstances, he cannot demonstrate diligence in pursuing his federal claims, as

his filings lack the necessary specificity to show what—if anything—he did to
remedy the problem of the missing habeas materials or discover the AEDPA’s
statute of limitations. Lively alleges that he did not know the books were missing

until December 2022. Again, however, he admits that he knew about the AEDPA
as early as 2012, but he does not allege that he made independent efforts to obtain
federal habeas materials or learn about the statute of limitations or that prison
officials hindered his efforts. Thus, the record evidence is insufficient to support

a connection between Lively’s untimely filing and any alleged inadequacies in the
prison library. Without this connection, Lively cannot establish that he pursued
his rights diligently. See Helton, 259 F.3d at 1314 (citing Miller v. Marr, 141 F.3d

976, 978 (10th Cir. 1998) (noting that inmate provided no specificity about the
steps he took to pursue his federal claims and holding it is not enough to say the
facility “lacked all relevant statutes and case law or that the procedure to request

specific materials was inadequate”)); Paulcin v. McDonough, 259 F. App’x 211,
213 (11th Cir. 2007) (affirming dismissal of § 2254 petition as time-barred, in part
because “[petitioner] asserted only the conclusory allegation that he was denied

access to the library and his records, but failed to allege how his inability to obtain
legal materials thwarted his efforts to file a timely federal proceeding”); Bell v.
Sec’y, Dep’t of Corr., 248 F. App’x at 104–05 (affirming dismissal of § 2254
petition as time-barred in part because “there [was] no record evidence that before

the limitations period expired, [petitioner] diligently attempted to determine the
applicable limitations period (by, for example, attempting to access the prison law
library) or that prison officials thwarted his efforts”) (emphasis in original).

Accordingly, the court finds that Lively is not entitled to equitable tolling.
IV. CERTIFICATE OF APPEALABILITY
A prisoner seeking a writ of habeas corpus has no absolute entitlement to
appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). A court

may issue a certificate of appealability “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). To make this showing, a “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), or that “the
issues presented are adequate to deserve encouragement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotations omitted).
Where a petition is denied on procedural grounds, he “must show not only that
one or more of the claims he has raised presents a substantial constitutional issue,

but also that there is a substantial issue about the correctness of the procedural
ground on which the petition was denied.” Gordon, 479 F.3d at 1300 (citations
omitted). “A ‘substantial question’ about the procedural ruling means that the
correctness of it under the law as it now stands is debatable among jurists of

reason.” Id.
Reasonable jurists would not debate that Lively’s petition is time-barred
under § 2244(d)(1)(A). Reasonable jurists also would not debate whether Lively

is entitled to statutory or equitable tolling of the limitations period. Accordingly,
it is ORDERED that the Petitioner is not entitled to a certificate of appealability.
28 U.S.C. § 2253.
V. CONCLUSION

For the reasons set forth above, it is ORDERED that Lively’s Petition for
Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (doc. 1) is DENIED
without an evidentiary hearing as time-barred and that this case be DISMISSED

with prejudice.
Final judgment will be entered separately.
DONE and ORDERED on this the 9th day of March, 2026.
JE
BILL LEWIS
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11282030. Public record. Not legal advice.