### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 11-41144 Summary Calendar

TONY LYNN HAILEY, Petitioner-Appellant

v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF C RIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee

Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:08-CV-270

Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges. PER CURIAM: * Tony Lynn Hailey, Texas prisoner # 9 1 1 4 1 4 , filed a 28 U.S.C. § 2254 petition to set aside his conviction on two counts o f sexual a ssault and indecency with a child younger than 17. The district court dismissed the petition as time barred. The court reje c t e d the notion that H ailey was entitled to equitable tolling b ecause of f

ailings of his counsel. The district c ourt r ea s oned that Hailey’s right to counsel ende d w hen the appellate court rendered its decision U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D June 26, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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affirming the judgment and therefore that Hailey could not assert that c ounsel’s

e r r o rs served to toll the limitation period. Additionally, the court note d t h a t Hailey a cknowledged h aving read in the newspaper that the state a ppellate court had affirmed his judgment. Consequently, the district court determined that Haile y h ad not demonstrated diligent pursuit of his rights or shown that rare and exceptional circumstances existed to invoke equitable tolling. We granted Hailey a c e rtificate of appealability o n the issue whether he is entitled to equitable tolling of the one-year limitation period prescribed by 28 U.S.C. § 2244(d). Hailey contends that equitable tolling i s w a r r a nted because Clement Dunn, the attorney he retained to seek habea s r e l i e f on his behalf, deceived him f

or several years. In Hailey’ s vi e w , D u nn’s deception and misconduct constitute rare and extraordinary circumstances. A petitioner is entitled to equitable tolling if he shows that (1) he pursued his rights with diligence and (2) “some extraordinary circumstance stood in his
way and prevented timely filing.” Holland v. Florida , 130 S. Ct. 2549, 2562 (2010) (internal quotation marks and citation omitted). Equi t y requires that § 2244(d)’s one-year limitation period be tolled as a result of “professional [legal] conduct that

. . . amount[s] to egregious behavior and create[s] an extraordinary circumstance.” Id. at 2564. Equitable toll i ng i s a pplied sparingly, with the prisoner having the burden of establishing that its application i s w a r r anted. Howland v. Quarterman , 507 F.3d 840, 8 45 (5th Cir. 2007), abrogated on other grounds by Richards v. Thaler , 710 F.3d 573, 577-78 (5th C ir. 2 013). If a habeas petition is dismissed on the basis that equitabl e t o lling i s inapplicable, we review to determine whether there has been an abuse of discretion. Stone v . Thaler , 614 F.3d 136, 138 (5th Cir. 2010). We ma y a f f i r m on any basis supported by the record. Berry v. Brady , 192 F.3d 504, 507 (5th Cir. 1999). Hailey’s d ead l i ne for s eeking federal habeas relief under § 2254 was September 1 0 , 2 0 02. Hailey’s assertions about Dunn’s failures preceding the July 2 002 contract for Dunn’s legal s e rvices are irrelevant, because there was
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s t i ll time after that contract was confected i n which a timely § 2254 p e t i t i o n could have been filed. Moreover, only deceptions occurring between the date of the contract and the deadline of September 1 0, 2 002, would b e relevant because anything that happened after the limitation period had e xpired could not have “stood in [the] way” of a timely filing. H olland , 130 S. Ct. at 2562; see also Scott v. Johnson , 227 F.3d 260, 263 (5th Cir. 2000). To invoke equit ab le tolling based on counsel’s “intentional deceit,” a petitioner must demonstrate “that h e reasonably relied on [a] deceptive misrepresentation.” United S t ates v. Riggs , 314 F.3d 796, 7 99 ( 5th Cir. 2002). Hailey identifies no deceptive misrepresentation b y Dunn between the signing of the contract in July 2 0 0 2 a n d the expiration o f the limitation period in September 2002, and thus the notion o f deception during that time is m e r e l y suppositional. It may b e e q u a l l y supposed, h owever, that Dunn did n ot file a petition for hab eas relief during that p e riod f or r easons having nothing to d o with deception, incl u d i n g f o r g e tting “to file the habeas petition on time

. . . or fail[ing] to do the requisite research to determine the a pplicab l e d e a d line.” Holland , 130 S. Ct. at 2567. Such negligenc e does not amount to egregious conduct constituting a rare and extraordinary circumstance that w arrants equitable tolling. Id. at 2568; Cousin v. Lensing , 310 F.3d 843, 849 ( 5 t h C ir. 2002). Hailey fails to show that equitable tolling applies in his case. See Riggs , 314 F.3d at 799; H

owland , 507 F.3d at 845. Because we affirm on the basis that Hailey failed to demonstrate egregious conduct on Dunn’s part that amounted to a rare and extraordinary circumstance warranting equitable tolling, we need not decide whether Hailey satisfied the e quitable tolling doctrine’s du e diligence requirement. See Holland , 130 S. Ct. at 2562; U nited States v. Rodriguez , 523 F.3d 519, 525 (5th Cir. 2008). AFFIRMED.

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