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

No. 11-31013

PANOS TSOLAINOS, Petitioner - Appellant
v. BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY, Respondent - Appellee

A ppeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:10-CV-3387

Before OWEN, HAYNES, Circuit Judges, and LEMELLE, * District Judge. PER CURIAM: ** Panos Tsolainos appeals the dismis s al, as time-barred, of his 28 U.S.C. § 2254 petition for a writ of h abeas c orpus. Because Tsolainos concedes that his petition was untimely under the Antiterrorism and Effective Death Penalty Act of 1996 ( “AEDPA”), w e consider only w hether the district court e rred i n refusing equitable tolling in light of Tsolai n o s ’ s allegations of gross m isconduct by his counsel. We AFFIRM. U n i t e d S t a te s C o u r t o f A p p e al s F i f t h C i rc u i t 

### F I L E D Septem ber 30, 2013 Ly l e W . Cay ce Clerk

* D is trict Jud ge of

the Eas tern D is trict of Louis iana, s itting by d es ignation.

* * 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

. R. 47. 5. 4. Case: 11-31013 Document: 00512390891 Page: 1 Date Filed: 09/30/2013No. 11-31013
I. In 2000 , T s o l a i n os was convicted in L ouisiana state court of the seconddegree murder of Deborah Tsolainos and was sentenced to life in prison without possibility of parole. The F irst Circuit Court of A ppeals of Louisiana overruled Tsolainos’s assignments of error, and t he L ouisiana S upreme Court denied his application for a supervisory writ of review. State v. Tsolainos , 877 So. 2d 144 (La. 2 004). The United States Supreme Court denied h is petition f or a w r i t of certiorari on February 28, 2005. Tsolainos v. Louisiana , 543 U.S. 1186 (2005). On July 5, 2 006, Tsolainos filed a state habeas petition, w hich was denied. The First Circuit Court of Appeals of Louisiana affirmed that decision, State v. Tsolainos , 997 S o. 2d 46 (La. Ct. App. 1 Cir. 2008), and the Louisiana S upreme Court denied Tsolainos’s application for a supervisory w rit of review o n October 9, 2009. State v. Tsolainos , 19 So. 3d 6 (La. 2009). Tsolainos’s federal h abeas corpus petition was filed on October 8, 2010, in the United Sta t es District Court for the Eastern D istrict of Louisiana. The district court denied Tsolainos’s petition as untimely. Tsolainos v. C ain , No. 10-3387, 2011 WL 4810640 (E.D. L a. Oct. 6, 2011). It b ased its decision on the recommendation of the magistrate judge, who concluded that Tsolainos had not presented facts su f

f i c i ent to demonstrate entitlement to equitable tolling. Tsolainos v. Cain , No. 10-3387, 2011 WL 4807702, at *3–6 (E.D. La. Jun. 21, 2011). We granted a Certificate of Appealability (“COA”) to determine whether the district court erred in refusing t o equitably toll the AEDPA limitation period. The facts relating to Tsolainos’s argument for e quitabl e t o l l i ng are as follows. T hroughout his cr i m i n a l trial and direct appeal, Tsolainos was represented by a team o f attorneys, including Robert S tern and Kim Abramson (“Kim”). A fter t he Supr e m e C o urt denied Tsolainos’s petition for a writ of certiorari i n February 2 005, Kim notified Tsolainos that she no longer was able
to work with Stern in con n e c tion with Tsolainos’s applications for state and

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federal post-conviction relief, but she also was no t w i l l i ng t o work alone. Instead, she r ecommended t h at T solainos hire a team of partners from Phelps Dunbar LLP: Neil Abramson (“Neil,” her husband) and Harry R o s e n b erg, the former U.S. Attorney for the Eastern Distri c t o f L o u i s i a n a
. T s o l a inos terminated Stern in June of 2005 and later engaged Phelps Dunbar, along with Kim, to file his state and federal habeas petitions. Although Kim was i n contact with Tsolainos throughout the fall of 2005, the contract between Tsolainos and P helps Dunbar was n o t e xecuted until December 2005. 1 A Phelps D unbar c ase file was first opened in F ebruary 2006. Rosenberg asserts the engagement letter stated that he and Neil were to be the partners responsible for the case. Although Rosenberg was a former United States Attorney, h e did not believe that Neil had e xperience representing clients i n c riminal proceedings or in collateral review of a criminal convictio n
. Rosenberg’s first recorded billable time on the case was in May 2006. Tsolainos states that h e w a s i n f o rmed by Kim and Neil that his best opportunity for relief would be a federal habeas application. The attorneys were operating under the incorrect assumption that the f ederal statute o f limitations would not commence until the conclusion of t h e state post-conviction proceeding because they w ere conflating the i ssue of e xhaustion of state remedies with the issue of when the federal habeas “clock” begins to r u n. They told Tsolainos that he could not file a f

e d e r a l h a beas application until he e xhausted the state post-conviction process. Kim and Neil advised him not t o wo r r y a b o u t the

1 In the f all of 2005, H urricane K atrina struck N ew Orleans

. K im inf orm ed Ts olainos that the s tate courts had granted extens ions of the s tatutes of lim itations , thus af f ord ing him extra tim e to f

ile his p etition. See, e. g. , M a rk v
. M icha el , N o. 08- 1261, 2008 WL 4365929, at *2 ( E. D

. La. Sep t. 23, 2008) ( “[ T] he lim itations p eriod w as arguably s us p end ed , and theref ore no p ortion of [ the lim itations ] p eriod elap s ed , d uring the p eriod of Sep tem ber 1, 2005, through N ovem ber 25, 2005. ”) ; H am p t on v
. Wi l ki nson , N o. 08- 1535, 2008 WL 4829716, at *2 ( E. D

. La. Aug. 26, 2008) ( s a m e )

. W e c r e d i t this tim e to Ts olainos , but note that it does not af f ect our analys is

. 3 Case: 11-31013 Document: 00512390891 Page: 3 Date Filed: 09/30/2013No. 11-31013

deadline for the f

ederal application until the s tate post-conviction proceedings

were completed. Tsolainos states t hat he “did not see a ny reason to needlessly delay the f

i l i n g ” of his state a pplication, a nd instructed K im to file the application “as soon as it was prepared.” After the co n c l u s i o n of the state post-conviction proceedings in October 2009, T solainos asserts that Kim instructed him t hat his f ederal petition “would be r e a d y for filing by Thanksgiving 2 009, and when it was n o t done by Thanksgiving[,] she promised him i t would be done in an o t h e r m o nth or two.” Tsolainos a lleges that it “was nearly impossible” to reach Kim b y phone during this period a nd t hat she was not responsive to his r equests to fi l e the federal application “as soon as possible.” Tsolainos had an unrelated dispute with Kim and Neil in December 2009, and on January 25, 2010, attempted to t erminate t heir r e presentation and proceed only with Rosenberg. He was informed that Rosenberg was unwilling to continue the representation without Neil and Kim. The firm sent Tsolainos

a l e tter asking whether he would allow all three attorneys t o conti n u e t o represent him. The letter advised Tsolainos that t he “Louisiana Supreme Court denied [his] writs for relief relating to [his] post-conviction relief on October 9, 2009,” a nd “that f

ederal law includes a one year period relating to habeas corpus relief.” Tsolainos fired all three attorneys soon after. Around that time, T so l a i n o s l e a r n e d t h a t h i s f e d e r a l limitations p e riod had already expired before his state a pplication w as filed. 2 Tsolainos contacted his former a ttorney, Stern, to take over his representation. Stern agreed that the federal period had lapsed, and upon receipt of Tsolainos’s client file f rom Phelps

2 Ts olainos w as inf

orm ed of this outcom e by the attorneys w ho managed a trus t s et up to p ay his legal bills

. The trus t attorneys had becom e concerned about the legal bills f rom K im and the Phelp s D unbar team and cond ucted s ep arate res earch into the f ed eral s tatute of lim itations

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Dunbar, lear n e d t hat n o one had p r epared even a draft of a federal habeas petition. Through Stern and additional counsel, Tsolainos filed the instant federal petition eight months later. II. We review a district court’s d ecision regarding equitable tolling for abuse of discretion, although a ny con c lusions of law underlying t h e district court’s decision are reviewed de novo
. Manning v. Epps , 688 F.3d 177, 1 82 (5th Cir. 2012), c ert. denied , 133 S. Ct. 1633 (2013)

. The p etitioner bears the burden of proving that he is entitled to equitable t olling. Alexander v. Cockrell , 294 F.3d 626, 629 (5th Cir. 2002). A petitioner is “‘entitled t o equitable tolling’ only if he shows ‘(1) that he has been pur s u i n g h is rights diligently, and (2) that some extraordinary c ircumstance stood in his way’ and preven t e d timely filing.” Holland v. Florida , 130 S. C t. 2549, 2 562 (2010) (quoting Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005)). III. AEDPA’s one-year s tatute of limitations r uns f rom the latest of several
start d a tes, i ncluding the one applicable here—“the d ate on which the judgment b e c a me f

inal by the conclusion of direct r eview.” 28 U.S.C. § 2244(d)(1)(A). Tsolainos’s one-year clock began t o run o n February 28, 2005, when his petition for certiorari to the Supreme Court was denied. See i d. ; Roberts v. Cockrell , 319 F.3d 690, 694 (5th Cir. 2003) (“[T]he ‘conclusion of direct review’ i s when the Supreme Court either rejects the petition for certiorari or rules on its merits.” (citation omitted)). H is statutory period for filin g h i s h abeas petition thus expired o n e y e a r from that date, February 28, 2006, unless that deadline was extended by tolling. 3

3 AED P A p rovid es that the “tim e d uring w hich a p rop erly f iled ap p lication f

or State p os t- conviction

. . . review

. . . is p end ing s hall not be counted ” agains t that one- year p eriod

. 28 U

. S. C. § 2244( d ) (2)

. Louis iana law , in contras t, provid es an incarcerated pers on tw o years 5 Case: 11-31013 Document: 00512390891 Page: 5 Date Filed: 09/30/2013No. 11-31013

Tsolainos’s federal habeas petition w as not f iled until October 8, 2 010. All parties a g ree that Tsolainos’s petition was untimely due to the misunderstanding of his counsel regarding t he correct application of AEDPA’s limitations period. Kim a nd Neil (but not Stern 4 ) erroneously believed that the
one-year period ran from t he time that Tsolainos’s application for state habeas relief was terminated. Accordingly, t hey did not realize t hat t hey had missed the filing date until four years after it had passed. Tsolainos a rgues that the failures of his c ounsel c onstitute the t ype of “extraordinary circumstances” rising above simple negligence contemplated by the Supreme Court i n Holland v
. Florida , and that he should therefore be permitted to submit his habeas petition now. However, Holland did not hold that a ttorney m isconduct alone could j u s t ify equitable tolling. See Holland , 130 S. C t. at 2 565. Rather, H o l l a n d illu s trates that a prisoner must diligently pursue his rights in the face of extraordinary circumstances. The defendant in H olland filed a pro se fede r al habeas petition a fter the AEDPA deadline had passed, alleging t hat during the
two years while his state habeas petition was pending befo r e t h e F lorida Supreme Court, his attorney communic a ted with him only three times, each time by letter. I

d

. at 2 555. Holland’s attorney never met with him or updated him on t he status of his c ase, despite Holland’s multiple attempts to contact his

w ithin w hich to f

ile a petition f

or p os t- convicti o n r e l ief

. See L A

. C ODE C R I M

. P R OC

. A R T

. 930. 8( A) ( Wes t 2012)

. If a p etitioner f iles a p etit i o n f

o r p os t- conviction relief in s tate court bef ore the exp iration of the one- year lim itations p eriod , the f ed eral clock s top s running until the s tate p os t- conviction action is conclud ed

. But the one- y ear clock d oes not res et; rather, it
res um es f

rom w here it lef

t of f

. S ee § 2244( d ) ( 2)

. B ecaus e Ts olainos ’s state habeas p etition w as not f iled w ithin the one- year p eriod , it d id not s tatutorily toll the lim itation clock

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

.

4 Ts olainos has never argued that Stern’s rep res entation w as incom petent, s uch that he s hould be entitled to equitable tolling f or any p ortion of the tim e d uring w hich he em p loyed Stern. It is unclear w hat Ros enberg thought regard ing the s tatute of lim itations

. R os enberg
s tated that he w as not cons ulted on or bef ore M ay 2006 “on the ques tion o f w h e n t h e s t ate [ ap p lication] f

or p os t- conviction relief ne e d ed to be f iled in ord er to ens ure that the f ed eral habeas [ ap p lication] w ould not be tim e barred

. ”
6 Case: 11-31013 Document: 00512390891 Page: 6 Date Filed: 09/30/2013No. 11-31013

attorney regarding t he importance of timely f iling his federal h a b e as petition. Id. at 2555–56. Holland r epeatedly cont a c t e d t he state courts a nd the bar association t o h ave his counsel remo v e d f r o m h is case. Id. Once Holland learned—in the prison library, not from h is attorney—that the Florida S upreme Court had already decided his case and t he federal filing deadline had passed, he immediately filed his own petiti o n
. I d

. at 2557. Accordingly, the S upreme Court concluded that Holland’s attentive efforts under the circumstances satisfied the “ reasonable diligence” requirement f or equitable tolling purposes. Id. at 2565. T hus, equitable tolling “is not intended for those w ho sleep on their

r i g h t s.” See Mathis v. Thaler , 616 F.3d 461, 474 (5th C ir. 2010) (interna l quotation marks and citation omitted). Tsolainos must establish both e x t r a o r d i n a r y c i r c u m s t a n c e s and diligence. 5 W i t h r e s p e c t t o “ e x t r a o rdinary circumstances,” he argue s t h a t t h e r e p r e s e n t a t i o n by incompetent c o u n s e l satisfies this prong. 6 Even assuming that being

5 We “invok e equitable tolling only w hen p eti ti oners dem ons trate that they have acted
w ith d ue d iligen c e
. ” M a n n i ng , 688 F. 3d at 184 ( em p has is ad d ed ). Thus , it is Ts olainos ’s burd en to p rove d iligence. Ts olainos argues that the S t a t e conced es Ts olainos ’s d iligence, or that it w aived the argum ent by f

ailing t o r a i s e it in the d is trict court. We d is agree. The State d id not “intentional[ ly] relinquis h[ ] or aband on[ ] a k now n right. ” Wood v
. M i l ya rd , 132 S. Ct. 1826, 1835 ( 2012) ( internal quotation m ark s and citation om itted )

. Im portantly, Ts olainos w as the p arty w ith the burd en of p roof , theref ore he had the d uty to p rove both “extraord inary circum s tances ” and d ilige n c e. See A l exa nder , 294 F. 3d at 629. The is s ue of d iligence is not
an af f irm ative d ef

ens e the State need ed to rais e. Accord ingly, the State d id not w aive it.

6 Ts olainos relies on the as pects of H ol l a nd that s ugges t that attorney m is cond uct can cons titute extraord inary circum s tances

. I n H ol la nd , the attorney mis s ed the f iling d ate and “ap p ear[ ed ] to have been unaw are of the d ate on w hich the lim itations p eriod exp ired

. ” 130 S. Ct. at 2564. The Court noted that the attorney’s f ailure to p erf

orm ad equate legal res earch, to com m unicate w ith his client about crucial f acts s uch as a relevant Florid a Sup rem e Court d ecis ion ( w hich triggered AED P A’s lim itations p eriod in thos e circum stances ) , and to interact at all w ith his client over the cours e of years , w ere actions that a group of legal ethics teachers believed “violated f

und am ental canons of p rof es sional res p ons ibility. ” I d. at 2564–65. 7 Case: 11-31013 Document: 00512390891 Page: 7 Date Filed: 09/30/2013No. 11-31013

r e p r e s e n t ed b y i ncompetent counsel constitutes “ extraordinary circumstances,” 7 the time period covered by t h i s r e p resentation still leaves over a year unaccounted for. Starting with the February 2005 date, T s olainos was represented by Stern until at least June of 2005 and maybe as late as August of that year, approximately four months (or more). 8 He does n o t contend Stern was incompetent or unaware of t he correct method for calculating the federal habeas limitations date. Indeed, Stern, who w a s s t a te trial counsel, filed t he habeas application in feder a l district court and the n otice o f appeal in our court, appeared on the briefing in both courts, and attended the oral a rgument before this panel. Tsolainos f ired Kim, Neil, and R osenberg at the end of January 2010, 9 b ut he did n ot f i le his federal habeas petition until O ctober, a period of

more than eight months. Combining this time, there is a period of at least a year

7 H ow ever, becaus e w e conclud e Ts olainos w as not d iligent, w e exp res s ly d ecline to d ecid e w hether Ts olainos ’s attorneys ’ alleged gros s ne gl i g e n c e and f ailure to cond uct legal
res earch qualif

ies as an “ext r a o r d i n a ry circum s tance” that “p revented ” tim ely f iling. See Pa la ci os v
. Step hens , 723 F. 3d 600, 608 n. 6 ( 5th Cir. 2013) ; see al so Koum ji a n v
. Tha l er , 484 F. Ap p ’x 966, 969 ( 5th Cir. 2012) ( unp ublis hed ) ( p etitioner not d iligent w hen, “even if w e w ere to s ubtract the tim e” of the alleged extraord inary circum s tances , p etitioner’s d elay “w ould s till exceed f our and a half m onths ”) ; M a nni ng , 688 F. 3d at 184–90 ( “as s um [ ing] w ithout d ecid ing” that the “extraord inary circum s tance” p rong is s atis f ied , but f

ind ing lack of d iligence bas ed
on an “extend ed p eriod of inactivity” w here p etitioner “neither encouraged his [] attorneys to f ile his ap p lication f

or p os tconviction relief nor inquire d about the s tatus of his ap p lication” f or m ore than ninete e n m onths ) ; H usl ey v
. Tha l er , 421 F

. Ap p ’x 386, 390–91 ( 5th Cir. 2011) ( unp ublis hed ) ( f

ind ing p etitioner not d iligent) ; Wi ckw a re v. Tha l er , 404 F. Ap p ’x 856, 861–62 ( 5th Cir. 2010) (unp ublis hed ) (f ind ing p e t i t i o ner not d iligent w here there w as over f ourteen
m onths of d elay in filing his s tate ap p lication in the firs t ins tance and in f i l i n g his f

ed eral ap p lication af

ter exhaus tion)

.

8 Ts olainos ’s af

f id avit is unclear about the tim ing of S t e r n ’ s i n i tial f iring. K im ’s af f id avit s tated : “U ntil the s um m er of 2005, Robert Stern and I con t i n ued to rep res ent M r. Ts olainos

. . . . M r. Stern trans f erred h i s f

ile to Phelp s, D unbar in Augus t 2005. ” Any conf us ion about thes e d ates cannot benef it Ts olainos , as he w as the p arty w ith the burd en of p roof

.

9 Kim ’s af

f id avit ind icates that s he w as f ired on January 25, 2010; Ts olainos ’s af f id avit in d i c a t e s a sim ilar d ate as the d ate he term inated K im and N eil, the alleged ly incom p etent attorneys

. Phelp s D unbar s tated that s am e month that it ref us ed t o rep res ent Ts olainos
w ithout their p articip ation.
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when Tsolainos was not subject to the alleged “extraordinary c ircumstance” of being represented solely by incompetent counsel. In addition to the lack of “extraordinary circumstances” f or at least a year, Tsolainos a lso failed to demonstrate sufficient diligence. Tsolainos’s arguments track those in Holland, in that he maintains t h at he demonstrated diligence by “requesting that his petitions b e f i led in a timely manner and as soon as practicable” a nd by “constantly contacting his attorneys to ensure t hat the
proper procedures w ere being followed.” Alternatively, he argues that his obligation to be diligent did n o t c o m m ence until he discovered that his federal application was untimely. Tsolainos asserts that he filed his f ede r a l p e t i t ion shortly thereafter, and t herefore “[n]o more diligence could be e xpected

. . . under the circumstances.” O f t h e many considerations bearing upon the reasonable d iligence analysis, we point out three important factors: ( 1) Tsolainos waited nine and a half months after t he denial of his Supreme C ourt writ of certiorari to f ormally retain post-conviction counsel; (2) after r etaining Kim, Neil, and Rosen berg, Tsolainos did not closely monitor his a ttorneys or oversee the preparation of his
p e t i t i o n; and (3) after r ealizing h is federal petition was overdue and firing t he Phelps Dunbar team, Tsolainos waited over eight months to file hi s h a b e as petition in federal court with new counsel. While there i s n o bright-line rule suggesting that prisoners must retain habeas counsel within a certain period of t ime, see Palacios , 723 F.3d at 606, we consider this factor i n light of Holland ’ s instructions to adhere t o an equitable, “flexibl[ e ] ,” “case-by-case” approach that draws “upon decisions made in other similar cases for guidance.” 130 S

. C t. at 2 563. We h ave held that state prisoners who were aware that t heir state post-conviction proceedings were no longer pending and w aited t o file federal habeas p etitions between four and six months after the AEDPA limitation period bega n to run did not exercise

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reasonable diligence. See Melancon v. Kaylo , 259 F.3d 401, 408 (5th C i r
. 2001); Koumjian, 484 F. App’x at 969–70. Tsolain o s cannot claim diligence in his reliance on attorneys for a period o f time during which he had n o r e a son to believe he was actively represented by counsel. Cf. Maples v. Thomas , 132 S. Ct. 912, 924 (2012) (“Unknown to M aples, not one of [his] lawyer s w as in fact serving as his attorney d uring the [relevant p er i od].”). Tsolainos did not formally engage Phelps Dunbar to file h is state and federal petitions until December 2006, n ine and a h alf months after the denial of his writ for certiorari in the Supreme Court. He also failed to prove that he was relying on Kim alone (who clearly indicated to him t h a t s h e would not act alone) for federal habeas

r epresentation during this period, as well as the date on w hich he expres s l y discharged Stern, whom he does not c ontend was inco m petent, as counsel. Failing to r etain habeas counsel while Tsolainos’s AEDPA clock was t icking does not exemplify “reasonable diligence.” Finally , T s o lainos offers no j ustification for t he unreasonable delay in f i l i n g his federal habeas petition after discovering the Phelps D unbar team ’ s mistake regarding AEDPA’s statutory period. Indeed, after Tsolainos fired K im and the Phelps Dunbar attorneys i n January of 2005, he d id not f ile his federal habeas petition through new counsel for more than eight m onths. P resumably his new, adequate counsel was aware of the correct limitations period; he makes

no contrary claim. Once Tsolainos was made aware of t h e deficient representation and the overdue habeas p etition, he a nd his new attorneys failed
to file expeditiously. Compare Holland , 130 S. C t. at 2565 (“[T]he very day that Holland d i scovered that h is A EDPA clock had expired due to [his attorney’s] failings, Holland prepared h is own habeas petition pro se and promptly filed it with the D i s t r i c t C ourt.”), with Arita v. Cain , 500 F

. App’x 352, 3 54 (5th Cir. 2012) (unpublished) ( “[U]nlike Holland, who filed a p ro s e habeas petition the

‘ very day ’ he ‘ discovered his AEDPA c lock had expi r e d , ’ A r i ta r e tained new
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c o u n s e l

. . . then w aited more than a month to file in state court.” (citation omitted)). This lack of diligence alone is determinative. 1 0 T a k e n t ogether, his unreasonable delay in r etaining habeas counsel in the first instance combined with his n ew counsel’s failure to promptly file h is petition, s pans o ver seventeen months, which e asily exceeds the AEDPA o ne-year statutory period. Even if it did n ot, his delay between firing incompetent counsel, re-hiring f ormer counsel, and filing his federal habeas does not represent “diligence.” We conclude that the district c o u r t d i d not e rr in denying relief to Tsolainos based upon ineligibility for equitable tolling under A E D P A

. See Holland, 130 S. Ct. at 2562. A ccordingly, his p etition was filed w ell outside the statutory period, and thus is untimely. IV. For the foregoing reasons, w e A FFIRM t h e judgment of the district court, dismissing Tsolainos’s h a b e a s p e t i t i o n w i t h p r e j u d i c e a s u n t i m e l y u n d e r A EDPA.

1 0 Becaus e of the lack o f e x p e d i t i ous f iling, w e need not d ecid e what w ould have hap p ened if Ts olainos had f iled p rom p tly up on d is covering the correct d ead line.

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