     Case: 11-41144       Document: 00512288606         Page: 1     Date Filed: 06/26/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 26, 2013
                                     No. 11-41144
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

TONY LYNN HAILEY,

                                                  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 Eastern District of Texas
                             USDC No. 4:08-CV-270


Before STEWART, Chief Judge, and OWEN and GRAVES, Circuit Judges.
PER CURIAM:*
       Tony Lynn Hailey, Texas prisoner # 911414, filed a 28 U.S.C. § 2254
petition to set aside his conviction on two counts of sexual assault and indecency
with a child younger than 17. The district court dismissed the petition as time
barred. The court rejected the notion that Hailey was entitled to equitable
tolling because of failings of his counsel. The district court reasoned that
Hailey’s right to counsel ended when the appellate court rendered its decision


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-41144

affirming the judgment and therefore that Hailey could not assert that counsel’s
errors served to toll the limitation period. Additionally, the court noted that
Hailey acknowledged having read in the newspaper that the state appellate
court had affirmed his judgment. Consequently, the district court determined
that Hailey had not demonstrated diligent pursuit of his rights or shown that
rare and exceptional circumstances existed to invoke equitable tolling.
      We granted Hailey a certificate of appealability on the issue whether he
is entitled to equitable tolling of the one-year limitation period prescribed by 28
U.S.C. § 2244(d). Hailey contends that equitable tolling is warranted because
Clement Dunn, the attorney he retained to seek habeas relief on his behalf,
deceived him for several years.        In Hailey’s view, Dunn’s deception and
misconduct constitute rare and extraordinary circumstances.
      A petitioner is entitled to equitable tolling if he shows that (1) he pursued
his rights with diligence and (2) “some extraordinary circumstance stood in his
way and prevented timely filing.” Holland v. Florida, 130 S. Ct. 2549, 2562
(2010) (internal quotation marks and citation omitted). Equity requires that
§ 2244(d)’s one-year limitation period be tolled as a result of “professional [legal]
conduct that . . . amount[s] to egregious behavior and create[s] an extraordinary
circumstance.” Id. at 2564. Equitable tolling is applied sparingly, with the
prisoner having the burden of establishing that its application is warranted.
Howland v. Quarterman, 507 F.3d 840, 845 (5th Cir. 2007), abrogated on other
grounds by Richards v. Thaler, 710 F.3d 573, 577-78 (5th Cir. 2013). If a habeas
petition is dismissed on the basis that equitable tolling is inapplicable, we review
to determine whether there has been an abuse of discretion. Stone v. Thaler, 614
F.3d 136, 138 (5th Cir. 2010). We may affirm on any basis supported by the
record. Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).
      Hailey’s deadline for seeking federal habeas relief under § 2254 was
September 10, 2002. Hailey’s assertions about Dunn’s failures preceding the
July 2002 contract for Dunn’s legal services are irrelevant, because there was

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                                  No. 11-41144

still time after that contract was confected in which a timely § 2254 petition
could have been filed. Moreover, only deceptions occurring between the date of
the contract and the deadline of September 10, 2002, would be relevant because
anything that happened after the limitation period had expired could not have
“stood in [the] way” of a timely filing. Holland, 130 S. Ct. at 2562; see also Scott
v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
      To invoke equitable tolling based on counsel’s “intentional deceit,” a
petitioner must demonstrate “that he reasonably relied on [a] deceptive
misrepresentation.” United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002).
Hailey identifies no deceptive misrepresentation by Dunn between the signing
of the contract in July 2002 and the expiration of the limitation period in
September 2002, and thus the notion of deception during that time is merely
suppositional. It may be equally supposed, however, that Dunn did not file a
petition for habeas relief during that period for reasons having nothing to do
with deception, including forgetting “to file the habeas petition on time . . . or
fail[ing] to do the requisite research to determine the applicable deadline.”
Holland, 130 S. Ct. at 2567. Such negligence does not amount to egregious
conduct constituting a rare and extraordinary circumstance that warrants
equitable tolling. Id. at 2568; Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir.
2002).
      Hailey fails to show that equitable tolling applies in his case. See Riggs,
314 F.3d at 799; Howland, 507 F.3d at 845. Because we affirm on the basis that
Hailey failed to demonstrate egregious conduct on Dunn’s part that amounted
to a rare and extraordinary circumstance warranting equitable tolling, we need
not decide whether Hailey satisfied the equitable tolling doctrine’s due diligence
requirement. See Holland, 130 S. Ct. at 2562; United States v. Rodriguez, 523
F.3d 519, 525 (5th Cir. 2008).
      AFFIRMED.



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