UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 01-10660

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

VERSUS

STACEY WYNN,

Defendant -Appellant.

Appeal from the United States District Court

For the Northern District of Texas

May 31, 2002

Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Stacey Wynn appeals the dismissal, as time barred, of his motion filed pursuant to 28 U.S.C.

§ 2255. There is no doubt that the filing was tardy; the only issue is whet her Wynn is entitled to

equitable tolling.

I.

Wynn was convicted in January 1997 of conspiracy to possess and possession with intent to

distribute cocaine and aiding and abetting. He was sentenced to 235 months imprisonment and five

years supervised release. His convict ion and sentence were affirmed on appeal. U nited States v.

Freeman , 164 F.3d 243, 250 (5th Cir. 1999).1 Brady v. Maryland , 373 U.S. 83 (1963).

2 Apprendi v. New Jersey , 530 U.S. 466 (2000).

3 28 U.S.C. § 2244.

4 The district court noted that the record does not reflect that this letter was received by the

court clerk, or if it was, that any action was taken.

2 On January 2, 2001, Wynn filed a § 2255 motion alleging (1) ineffective assistance of counsel

due to counsel’s mental illness and chemical dependency, (2) a Brady 1 violation and denial of his right

to confron t at io n, and (3) enhanced punishment without the requisite notice in light of A pprendi. 2

Wynn devoted several pages to arguing that he was e nt it led t o equitable tolling of the one-year

limitations period application to § 2255 motions. The government filed a response and motion to

dismiss as unt imely. Wynn’s conviction became final on April 26, 1999, the deadline for filing a

pet it io n for certiorari. Absent equitable tolling, under the provisions of the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), Wynn had until April 26, 2000 to file a § 2255 motion. 3

The district court noted the following chronology of events cited by Wynn in support of his

argument for equitable tolling:

In a telephone conversation on January 6, 1999, bet ween petitioner and his

attorney on appeal, petitioner was advised by his appellate attorney that he would file

a habeas corpus petition pursuant to § 2255 on petitioner’s behalf claiming ineffective

assistance of petitioner’s trial counsel.

Some time around or du ring May of 1999, petitioner was informed by his

appellate attorney that he had filed the § 2255 motion and that a copy of the motion

would be forwarded to petitioner.

On June 8, 1999, petitioner wrote a letter to the clerk of this court inquiring

into the status of his § 2255 motion and requesting copies of any and all motions filed

on his behalf concerning his habeas petition. 4

On October 13, 1999, petitioner wrote a letter to the court inquiring into the3

status of his habeas petition and explaining that he had not heard from his appellate

counsel in several months. At the request of the court, one of the court’s law clerks

responded by letter dated October 21, 1999, informing petitioner that the record did

not reflect a petition for writ of habeas corpus had been filed, and advising petitioner

that the court was not in the position to give him any legal advice with regard to the

filing of such a petition.

On October 23, 1999, petitioner attempted to contact his appellant attorney

in response to the court ’s letter of October 21, 1999, but was unable to reach him.

Petitioner then contacted his fa t her and requested that he relay to his appellate

attorney the information provided by the court’s letter of October 21, 1999.

On October 24, 1999, petitioner’s father cont act ed petitioner’s appellate

attorn ey and informed him of the court’s letter of October 21, 1999. Petitioner’s

appellate attorney responded by stating that “the reason the court clerk did not find

anything in the record to show a habeas filing was because he, [petitioner’s appellate

attorney ], had filed the habeas corpus petition directly with Judge McBryde and was

awaiting a response from the Judge and we must be patient.”

On August 24, 2000, after repeated unsuccessful attempts to contact his

appellate attorney

, petitioner asked his father to purchase a copy of the docket sheet,

which revealed that no habeas corpus petition had been filed on petitioner’s behalf.

On September 24, 2000, petitioner wrote a letter to the court explaining the

above-chronicled events and seeking legal advice concerning his situation. By order

signed October 16, 2001, the court made petitioner’s letter of September 24, 2000,

a part of the record and informed petitioner that the court was not in the position to

give him legal advice. The court further informed petitioner that the timeliness of a

§ 2255 motion would only be considered if, and when, petitioner filed such a motion.

Wynn’s motion was filed 78 days later.

Finding that Wynn was not entitled to equitable tolling, the district court dismissed Wynn’s

§ 2255 motion as time-barred. The district court acknowledged that Wynn alleged deception by his

attorney that a t imely § 2255 motion had been filed on his behalf. It also acknowledged that such a

situation may present a “rare and extraordinary circumstance” beyond Wynn’s control that would

warrant equitable tolling of the statute of limitations in this case, citing Seitzinger v. Reading Hosp.

& Med. Ctr. , 165 F.3d 236, 237-38 (3d. Cir. 1999)(holding, with respect to Title VII’s ninety-day4

limitations period to f

ile a co mplaint after a right to sue letter is issued, that a diligent client who

persistently questioned the lawyer as to whether the complaint was filed on time and the at t o rney

affirmat ively misrepresented that he had, raises a sufficient claim of attorney abandonment to bring

the case within the narrow line of cases in which lawyer misconduct justifies equitable tolling.)

However, it declined to address whether such deception which Wynn contended was practiced on

him can serve as a basis for equitable tolling, based on its conclusion that Wynn had not pursued the

filing of his § 2255 motion with diligence and alacrity. The district court concluded that Wynn should

have first ascertained that his § 2255 motion had not been filed as early as October 23, 1999, when

the court responded to his inquiry that no petition was filed on his behalf. It further found that even

if the petitioner’s claim that his attorney misrepresented to him that the § 2255 motion was filed

directly with chambers was credible, that petitioner waited ten months before sending his father to

follow up by purchasing a docket sheet. The district court states that the petitioner should have been

aware of the imp ending deadline imposed by the AEDPA and should have followed up with the

district court before that deadline, especially given the lack of communication between petitioner and

his appellate attorney.

This cour t grant ed Wynn’s motion for COA. Stating that “Wynn has shown that jurists of

reason would find it debatable whether the district court erred in finding his 28 U.S.C. § 2255 motion

time-barred,” this court concluded that Wynn “made a substantial showing of the denial of a

constitutional r ight” and granted his motion for COA on the issue whether reliance of counsel’s

representation that a § 2255 motion has been filed is sufficient to warrant equitable tolling and, if so,

for how long.5 II.

A district court’s decision with respect to equitable tolling is reviewed for abuse of discretion.

Fisher v. Johnson

, 174 F.3d 710, 713 (5th Cir. 1999). The statute of limitations must not be applied

too harshly. I d. Dismissing a first § 2255 motion or habeas petition is a “particularly serious matter.”

Id. In applying the doctrine of equitable tolling, we must examine the facts and circumstances of each

particular case.

III.

The one-year limitations period of the AEDPA is a st at ute of limitations that is not

jurisdictional and is therefore subject to equitable tolling. D avis v. Johnson

, 158 F.3d 806, 811 (5th

Cir. 1998 ), cert. deni ed , 119 S.Ct. 1474 (1999). Equitable tolling is permissible only in “rare and

exc eptional circumstances.” I d. This circuit has found several circumstances not to warrant

equitable tolling: a prisoner’s pro se status, inadequate prison library ( Felder v. Johnson

, 204 F.3d

168, 171 (5th Cir . 2000), citi ng U nited States v. Flores

, 981 F.2d 231, 236 (5th Cir. 1993));

allegation of 43 days late notice of effectiveness of the AEDPA and 17 days in psychiatric evaluation

( Fisher v. Johnson

, 174 F.3d 710, 715 (5th Cir. 1999). This court has found equitable tolling when

a petitioner was misled by the district court that upon dismissing an earlier t imely petition without

prejudice he would be allowed to refile at a later date. U nited States v. Patterson

, 211 F.3d 927, 931-

32 (5th Cir. 2000). This court has also remanded a case to t he district court for a hearing to

determine if a petitioner can establish facts in support of his allegations for equitable tolling. P hillips

v. Donnelly 216 F.3d 508, 511 (5th Cir. 2000) (Petitioner alleged late notice of denial of state habeas

petition.)

We agree with the district court that Wynn’s allegation that he was deceived by his attorney6

int o believing that a timely § 2255 motion had been filed on his behalf presents a “rare and

extraordinary circumstance” beyond petitioner’s control that could warrant equitable tolling of the

statute of limitations. However, we disagree with the district court’s conclusion that Wynn should

necessarily have been on notice of his attorney’s l ack of action as of October 23, 2000 when he

received the letter from the district court that no petition had been filed on his behalf. Based on

Wynn’s allegations, the deception of Wynn’s attorney occurred after this date. After Wynn received

the letter and was unable to successfully contact his attorney

, he acted promptly to send his father to

inquire as to the meaning of the letter. It was at that time that the attorney allegedly misled Wynn

by t elling his father that the petition had in fact been filed directly with the judge, explaining the lack

of record in the clerk’s office. His attorney allegedly told Wynn to wait patiently for action by the

court.

Arguably, the communication Wynn received from the judge’s office contradicted the

statement his attorney made that he had filed Wynn’s petition directly with the judge. This situation

presents a close question as to whether Wynn was put on notice to make further inquiry despite the

representations made by his attorney

. The question is sufficiently close to warrant remand for factual

findings as to the factual basis for Wynn’s allegations and the reasonableness of Wynn’s reliance of

his attorney’s representations and advice.

Based on our reading of the district court’s opinion of May 10, 2001, no hearing was held and

no factual findings made on Wynn’s allegations. Our conclusion that equitable tolling may apply in

this case assumes t hat Wynn can establish that his attorney misled his father by telling him that a

habeas petition had been filed on his behalf and that Wynn reasonably relied on his attorney’s

misrepresentations as to the status of his case. We therefore REMAND the case to the district court7

for a hearing on these issues.

IV.

For the reasons stated above, the district court’s dismissal of Wynn’s petition for habeas

corpus as untimely is VACATED and REMANDED.