Jerry Green v. William Stephens, Director , 565 F. App'x 342 ( 2014 )

Case: 13-20080 Document: 00512612085 Page: 1 Date Filed: 04/29/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-20080 April 29, 2014
Summary Calendar
Lyle W. Cayce
Clerk
JERRY WAYNE GREEN,
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 Southern District of Texas
USDC No. 4:12-CV-110
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Jerry Wayne Green, Texas prisoner # 1340952, was convicted of murder
and sentenced to 80 years of imprisonment. The district court dismissed his
28 U.S.C. § 2254 application as time barred. We granted Green a certificate of
appealability (COA) on the question of whether he is entitled to equitable
tolling of the limitation period because he did not learn until the day the
limitation period expired that the Texas Court of Criminal Appeals (TCCA)
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 13-20080
had denied his state postconviction application and that postconviction counsel
would not be filing a § 2254 application as promised by counsel.
We disagree with the respondent that Green has abandoned
consideration of the district court’s decision to deny him equitable tolling. See
Williams v. Cain, 217 F.3d 303, 305 (5th Cir. 2000). Nevertheless, for the
following reasons, we affirm.
Green is entitled to equitable tolling of the limitation period 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 quotation marks and
citation omitted). Green has the burden of establishing that he is entitled to
equitable tolling. See Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.),
modified on reh’g, 223 F.3d 797 (5th Cir. 2000). The district court’s decision to
deny him equitable tolling is reviewed for an abuse of discretion. See Fisher v.
Johnson, 174 F.3d 710, 713 (5th Cir. 1999).
“[A]ttorney abandonment can qualify as an extraordinary circumstance
for equitable tolling purposes.” Manning v. Epps, 688 F.3d 177, 185 n.2 (5th
Cir. 2012) (relying on Maples v. Thomas, 132 S. Ct. 912, 924 (2012)), cert.
denied, 133 S. Ct. 1633 (2013). Assuming without deciding that Green has met
his burden of proving attorney abandonment, we conclude that Green fails to
show that he acted with “reasonable diligence.” Holland, 560 U.S. at 653
(internal quotation marks and citation omitted). “The act of retaining an
attorney does not absolve the petitioner of his responsibility for overseeing the
attorney’s conduct or the preparation of the petition.” Manning, 688 F.3d at
185 (internal quotation marks and citation omitted). Green hired
postconviction counsel with, at most, six months remaining in the limitation
period. He offers no evidence that he made any effort to ensure that counsel
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No. 13-20080
would file his state postconviction application with enough time remaining in
the limitation period to seek § 2254 relief should the TCCA deny relief. Cf.
Palacios v. Stephens, 723 F.3d 600, 607 (5th Cir. 2013). He also admits that
he failed to ensure during the three-year pendency of his state application that
his § 2254 application would be filed once the TCCA denied relief. Cf. Holland,
560 U.S. at 652-53; Manning, 688 F.3d at 184-86. Accordingly, he has failed
to show that the district court abused its discretion in denying him equitable
tolling.
The judgment of the district court is AFFIRMED. Green’s motion for
leave to file a supplemental brief is GRANTED.
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