                                                       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
                      --------------------

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this opinion should not be published and is not precedent except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.
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                                 -2-

“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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                                  -3-

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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                                -4-

     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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                                -5-

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
                             No. 03-10857
                                  -6-

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
                             No. 03-10857
                                  -7-

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.
