IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-41144

Summary Calendar

TONY LYNN HAILEY,

Petitioner-Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

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 # 911414, filed a 28 U.S.C. § 2254

petition to set aside his conviction on two counts of sexual assault and indecency

with a child younger than 17. The district court dismissed the petition as time

barred. The court rejected the notion that Hailey was entitled to equitable

tolling because of failings of his counsel. The district court reasoned that

Hailey’s right to counsel ended when the appellate court rendered its decision

United States Court of Appeals

Fifth Circuit

F I L E D

June 26, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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

errors served to toll the limitation period. Additionally, the court noted that

Hailey acknowledged having read in the newspaper that the state appellate

court had affirmed his judgment. Consequently, the district court determined

that Hailey had not demonstrated diligent pursuit of his rights or shown that

rare and exceptional circumstances existed to invoke equitable tolling.

We granted Hailey a certificate of appealability on 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 is warranted because

Clement Dunn, the attorney he retained to seek habeas relief on his behalf,

deceived him for several years. In Hailey’s view, Dunn’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). Equity 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 tolling is applied sparingly, with the

prisoner having the burden of establishing that its application is warranted. 

Howland v. Quarterman, 507 F.3d 840, 845 (5th Cir. 2007), abrogated on other

grounds by Richards v. Thaler, 710 F.3d 573, 577-78 (5th Cir. 2013). If a habeas

petition is dismissed on the basis that equitable tolling is 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 may affirm on any basis supported by the

record. Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).

Hailey’s deadline for seeking federal habeas relief under § 2254 was

September 10, 2002. Hailey’s assertions about Dunn’s failures preceding the

July 2002 contract for Dunn’s legal services are irrelevant, because there was

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still time after that contract was confected in which a timely § 2254 petition

could have been filed. Moreover, only deceptions occurring between the date of

the contract and the deadline of September 10, 2002, would be relevant because

anything that happened after the limitation period had expired could not have

“stood in [the] way” of a timely filing. Holland, 130 S. Ct. at 2562; see also Scott

v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).

To invoke equitable tolling based on counsel’s “intentional deceit,” a

petitioner must demonstrate “that he reasonably relied on [a] deceptive

misrepresentation.” United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002). 

Hailey identifies no deceptive misrepresentation by Dunn between the signing

of the contract in July 2002 and the expiration of the limitation period in

September 2002, and thus the notion of deception during that time is merely

suppositional. It may be equally supposed, however, that Dunn did not file a

petition for habeas relief during that period for reasons having nothing to do

with deception, including forgetting “to file the habeas petition on time . . . or

fail[ing] to do the requisite research to determine the applicable deadline.” 

Holland, 130 S. Ct. at 2567. Such negligence does not amount to egregious

conduct constituting a rare and extraordinary circumstance that warrants

equitable tolling. Id. at 2568; Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir.

2002).

Hailey fails to show that equitable tolling applies in his case. See Riggs,

314 F.3d at 799; Howland, 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 equitable tolling doctrine’s due diligence

requirement. See Holland, 130 S. Ct. at 2562; United States v. Rodriguez, 523

F.3d 519, 525 (5th Cir. 2008).

AFFIRMED.

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