Vineyard v. Dretke , 125 F. App'x 551 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 14, 2005
Charles R. Fulbruge III
Clerk
No. 03-10857
Summary Calendar
CECIL DON VINEYARD,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:01-CV-173-C
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Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
On November 7, 2002, we vacated and remanded this 28 U.S.C.
§ 2254 habeas proceeding to the district court for further
findings of fact relevant to allegations by petitioner-appellant
Cecil Don Vineyard, a Texas prisoner (# 931998), that he was
entitled to equitable tolling of the one-year limitations period,
28 U.S.C. § 2244(d), applicable to habeas corpus petitions. On
remand, the district court again dismissed Vineyard’s petition as
time-barred, concluding that Vineyard had failed to produce
*
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this opinion should not be published and is not precedent except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.
No. 03-10857
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“credible evidence” that he was “deliberately or negligently
informed by his [retained counsel Lance] Hall that” a petition
for discretionary review (“PDR”) was still pending in the Texas
Court of Criminal Appeals, on direct appeal of Vineyard’s 1994
conviction of possession of child pornography, or that Hall had
misinformed Vineyard that he was working on Vineyard’s 28 U.S.C.
§ 2254 petition. For the second time, we have granted Vineyard a
certificate of appealability (“COA”) on the issue whether he was
entitled to equitable tolling of the limitations period.
Vineyard has not denied that his conviction became “final”
for purposes of the limitations provision on March 9, 1999, upon
the expiration of the time for filing a petition for writ of
certiorari in the United States Supreme Court, following the
December 9, 1998, refusal of his PDR by the Texas Court of
Criminal Appeals. See Flanagan v. Johnson, 154 F.3d 196, 197
(5th Cir. 1997). Absent equitable tolling, Vineyard’s petition
was due on March 9, 2000. Vineyard has consistently argued,
however, that he was entitled to equitable tolling of the period,
based on the following allegations: Throughout 1999 and early
2000, Vineyard’s retained counsel, Hall, falsely led him to
believe that his PDR was still pending and told Vineyard that he
should “wait”; Vineyard did not learn of the PDR’s denial until
June 9, 2000, when a deputy sheriff arrested him and caused him
to be returned to prison; and Hall subsequently assured Vineyard
and Vineyard’s sister that he would file a 28 U.S.C. § 2254
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petition on Vineyard’s behalf, but failed to do so. Vineyard has
alleged that he diligently filed his 28 U.S.C. § 2254 petition
pro se in 2001, within weeks after learning that Hall had only
“completed” such a petition but not filed it.
As we observed in our earlier opinion remanding this case,
an attorney’s misrepresentations may be grounds for equitable
tolling. See United States v. Wynn, 292 F.3d 226, 230 (5th Cir.
2002). In Wynn, a 28 U.S.C. § 2255 movant alleged that: Wynn’s
appellate attorney had told him on January 6, 1999, that he would
file a 28 U.S.C. § 2255 motion on his behalf; the attorney told
Wynn in May 1999 that he had filed the motion; in October 1999,
Wynn wrote a letter to the clerk of court inquiring about the
status of his § 2255 motion and was told that it was not on file;
and, when Wynn’s father asked the attorney about this matter, the
attorney stated that he had filed the § 2255 motion directly with
the district judge, that he was waiting for a response, and that
“‘we must be patient.’” Id. at 228-29. We held that an
allegation by a movant “that he was deceived by his attorney into
believing that a timely § 2255 motion had been filed on his
behalf presents a ‘rare and extraordinary circumstance’ beyond
[movant’s] control that could warrant equitable tolling.” Id. at
230. Accordingly, we remanded to the district court “for a
hearing on these issues.” Id. at 231.
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In our prior opinion in the instant case, we observed that
Vineyard had asserted under penalty of perjury that on specific
dates during the limitations period, Hall deliberately or
negligently misinformed him that his PDR was still pending. We
also noted that Vineyard had also presented affidavit and
documentary evidence that Hall subsequently misled him and his
sister to believe that Hall was going to prepare and file a 28
U.S.C. § 2254 petition, further delaying Vineyard’s filing of a
pro se petition.
On remand, the district court solicited an affidavit from
attorney Hall, who attested that he timely notified Vineyard of
the denial of the PDR “shortly after [he] received notice that
was mailed . . . on December 9, 1998.” Hall also attested that
he never told Vineyard he was working on a 28 U.S.C. § 2254
petition on his behalf. This affidavit contradicted the unsworn
declaration and affidavits that Vineyard had already filed. The
district court, however, concluded that Vineyard had failed to
produce “credible evidence” that he was misled by Hall that his
PDR was still pending in the Texas Court of Criminal Appeals or
that Hall was working on a 28 U.S.C. § 2254 petition.
Vineyard’s unsworn declaration under penalty of perjury was
competent sworn testimony under 28 U.S.C. § 1746, and it carried
the same “force and effect” as an affidavit. See Hart v.
Hairston, 343 F.3d 762, 764 n.1 (5th Cir. 2003). Moreover, the
district court never explicitly discredited the affidavit filed
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by Vineyard’s sister, other than to observe in a footnote that it
had been handwritten by Vineyard and that copies of letters on
which the affidavit was purportedly based had not been produced
by Vineyard. “When the issue is one of credibility, resolution
on the basis of affidavits can rarely be conclusive.” See Rule
7, Rules Governing Section 2254 Proceedings, Advisory Committee
Notes; see also Jordan v. Estelle, 594 F.2d 144, 145-46 (5th Cir.
1979) (“Although a habeas petition may be decided on the basis of
affidavits, contested facts ordinarily may not be decided on the
basis of affidavits alone[.]” (citations omitted)).
Noting that Vineyard was incarcerated in December 1998 and
January 1999, at the time the PDR was issued, the district court
also emphasized that, although Vineyard had submitted copies of
correspondence from prison officials “indicating that, according
to the prison mail log, he did not receive correspondence from
January 15, 1999, to February 18, 1999, no evidence was submitted
to support his claim that he did not receive mail from December
9, 1998, to January 14, 1999.” As suggested above, Vineyard’s
unsworn declarations were evidence that he did not receive
notification of the denial of the PDR until 2000. In any event,
Vineyard submitted additional correspondence from prison
officials showing that officials refused to provide him with any
other information about his prison mail logs.
The district court also cited a several decisions to support
an implication that, even if Vineyard’s equitable-tolling
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allegations were true, he would not be entitled to equitable
tolling. For instance, the district court cited Turner v.
Johnson, 177 F.3d 390, 392 (5th Cir. 1999), for the proposition
that a lack of representation during the limitations period did
not warrant equitable tolling; Fierro v. Cockrell, 294 F.3d 674,
683 (5th Cir. 2002), cert. denied, 538 U.S. 947 (2003), for the
notion that an attorney’s erroneous interpretation of the
limitations provision was not an excuse for timely filing a
§ 2254 petition; Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir.
2002), cert. denied, 123 S. Ct. 2277 (2003), for the proposition
that “mere attorney error or neglect” is not an “extraordinary
circumstance” warranting equitable tolling; and Moore v.
Cockrell, 313 F.3d 880 (5th Cir. 2002), cert. denied, 123 S. Ct.
1768 (2003), for the holding that an attorney’s delay in
notifying a petitioner of the result of his direct appeal did not
warrant equitable tolling. All of these decisions are
distinguishable from the circumstances alleged by Vineyard, who
has asserted that Hall affirmatively misinformed him that his PDR
was still pending and thus caused him to refrain from taking
matters into his own hands. Wynn, which involved similar
allegations to Vineyard’s, still appears to be the most apposite
decision from this circuit. See Wynn, 292 F.3d at 228-31.
“Prior to the enactment of the AEDPA, we consistently held
that when there is a factual dispute which[,] if resolved in the
petitioner’s favor, would entitle [the petitioner] to relief and
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the state has not afforded the petitioner a full and fair
hearing, a federal habeas corpus petitioner is entitled to
discovery and an evidentiary hearing.” Clark v. Johnson, 202
F.3d 760, 766 (5th Cir. 2000) (citations and internal quotation
marks omitted). This is essentially the standard set forth by
the Supreme Court in Townsend v. Sain, 372 U.S. 293, 312 (1963),
and cited in the Advisory Committee Notes to Rule 8 of the Rules
Governing Section 2254 Proceedings. As amended by the AEDPA, 28
U.S.C. § 2244(e)(2) now states that, “[i]f the applicant has
failed to develop the factual basis of a claim in State court
proceedings,” a federal habeas court shall hold an evidentiary
hearing only in very limited circumstances. Section 2244(e)(2),
however, does not appear to address scenarios like the one in the
instant case, in which the factual dispute concerns not a
substantive constitutional claim but the federal court’s
application of a nonconstitutional rule. See Cristin v. Brennan,
281 F.3d 404, 412-13 (3d Cir. 2002) (holding that § 2254(e) does
not apply to issue of propriety of evidentiary hearing “on
excuses for procedural default”).
Based on the foregoing, we again VACATE the district court’s
dismissal and REMAND the case for further findings of fact
relevant to Hall’s alleged misrepresentations and the
reasonableness of Vineyard’s reliance upon them with regard to
equitable tolling of the one-year limitation period.
VACATED AND REMANDED.