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

                                                                             FILED
                                                                             July 18, 2013
                                        No. 11-41080
                                                                            Lyle W. Cayce
                                                                                 Clerk
ROLAND PALACIOS,

                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


Before ELROD and HIGGINSON, Circuit Judges, and JACKSON, District
Judge.*
HIGGINSON, Circuit Judge:
      Petitioner-Appellant Roland Palacios filed his federal habeas petition one
year and one day after the expiration of the one-year limitation period
established by the Antiterrorism and Effective Death Penalty Act (“AEDPA”).
The untimely filing, Palacios contends, was caused by his attorney, who, Palacios
alleges, misrepresented that his state habeas petition had been filed and, when
Palacios discovered that it had not been filed, abandoned him. The district court
dismissed Palacios’s federal habeas petition as time-barred, concluding that it
was untimely filed and that Palacios was not entitled to equitable tolling. We


      *
          Chief Judge of the Middle District of Louisiana, sitting by designation.
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                                  No. 11-41080

granted a certificate of appealability (“COA”) on the equitable tolling issue,
which hinges on whether (1) Palacios exercised “reasonable diligence” in pursing
habeas relief, and (2) his attorney’s alleged misrepresentation and abandonment
qualifies as an “extraordinary circumstance” that “prevented” timely filing.
Because we conclude that Palacios did not pursue his rights with reasonable
diligence, we AFFIRM.
                                BACKGROUND
      In 2007, Palacios was convicted in Texas state court of burglary of a
habitation with intent to commit aggravated assault, and was sentenced to 60 years
of imprisonment. The Texas Court of Appeals for the Thirteenth Judicial District
affirmed his conviction on direct appeal, Palacios v. State, No. 13-07-171-CR, 2008
WL 4433209 (Tex. App.—Corpus Christi July 17, 2008, pet. ref’d) (mem. op., not
designated for publication), and the Texas Court of Criminal Appeals (“TCCA”)
denied his petition for discretionary review, In re Palacios, No. 1092-08, 2008 Tex.
Crim. App. LEXIS 1488 (Tex. Crim. App. Nov. 26, 2008). Palacios did not petition
for a writ of certiorari from the United States Supreme Court.
      On April 6, 2010, Palacios filed a state habeas petition with the Texas
District Court for the 319th Judicial District. That court found that there were
“no controverted, unresolved fact issues material to the disposition” of the
petition, and that there was “no need for expansion of the record by an
evidentiary hearing.” It then addressed Palacios’s four asserted grounds for
relief, found them lacking, and recommended that the petition “be DENIED in
its entirety.” Following that recommendation, the TCCA denied the petition
without written order on January 26, 2011.
      On February 25, 2011, Palacios filed a federal habeas petition in the
United States District Court for the Southern District of Texas. The Texas
Attorney General’s Office moved for summary judgment, reasoning that because
the petition was filed after the expiration of AEDPA’s one-year limitation period,

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and Palacios was not entitled to statutory or equitable tolling, the petition was
time-barred. The district court, adopting the report and recommendation of a
magistrate judge, granted the motion, but did not immediately enter final
judgment for the government. Palacios filed a timely notice of appeal in the
district court, and a timely application for a COA with this court. Five months
after its summary judgment ruling, the district court entered final judgment
dismissing with prejudice the habeas petition. Within 30 days of final judgment,
Palacios filed pro se a motion for new trial or, in the alternative, to alter or
amend the judgment pursuant to Federal Rule of Civil Procedure 59(a) and (e)
(the “Rule 59 motion”).1 On May 7, 2012, this court granted a COA on whether
“the district court erred in refusing to equitably toll the limitation period and in
determining that Palacios had failed to pursue his state remedies diligently.”
In light of the COA grant, the district court entered an order staying its ruling
on the Rule 59 motion “until after the appeal is decided.” By operation of
Federal Rule of Appellate Procedure (“FRAP”) 4(a)(4)(B)(i),2 the stay placed the
appeal in jurisdictional limbo: a notice of appeal filed before a timely filed Rule
59 motion is sufficient to bring the underlying case to the court of appeals but
“is, in effect, suspended until the motion is disposed of, whereupon, the
previously filed notice effectively places jurisdiction in the court of appeals.” See
Ross v. Marshall, 426 F.3d 745, 752 n.13 (5th Cir. 2005) (quoting Fed. R. App.
P. 4 Advisory Committee’s note); see also Simmons v. Reliance Standard Life Ins.
Co., 310 F.3d 865, 868–69 n.2 (5th Cir. 2002) (suggesting that a stay does not

       1
        The district court advised Palacios that “hybrid representation is not permitted,” and
warned him that “[a]ny future pro se pleadings filed while petitioner is represented by
counsel will be struck,” but elected not to strike the Rule 59 motion “because of the unusual
procedural posture of the case.”
       2
        “If a party files a notice of appeal after the court announces or enters a judgment—but
before it disposes of any motion listed in Rule 4(a)(4)(A)—the notice becomes effective to
appeal a judgment or order, in whole or in part, when the order disposing of the last such
remaining motion is entered.” Fed. R. App. P. 4(a)(4)(B)(i).

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“dispose of” a motion for the purposes of FRAP 4(a)(4)(B)(i)). When notified that
his Rule 59 motion was holding up his appeal, Palacios moved to voluntarily
dismiss it. The district court granted the motion to dismiss, rendering effective
Palacios’s notice of appeal and placing appellate jurisdiction in this court.
                            STANDARD OF REVIEW
      The standard of review governing a district court’s equitable tolling
decision depends on the basis on which it is grounded. If the district court
exercises its discretion to deny equitable tolling, review is for abuse of discretion,
Henderson v. Thaler, 626 F.3d 773, 779 (5th Cir. 2010); if the district court
denies equitable tolling as a matter of law, review is de novo, Mathis v. Thaler,
616 F.3d 461, 474 n.14 (5th Cir. 2010) (citing Fisher v. Johnson, 174 F.3d 710,
713 n.9 (5th Cir. 1999)). We begin by assessing the basis for the district court’s
equitable tolling ruling.
      The district court referred the government’s motion for summary judgment
to a magistrate judge, who issued a memorandum and recommendation
recommending that the government’s motion be granted and Palacios’s habeas
petition be dismissed with prejudice as time-barred. The magistrate judge
recommended denying equitable tolling on the basis of its judgment that
Palacios had not shown that he had reasonably relied on his attorney’s alleged
misrepresentation that he had filed the state habeas petition. The magistrate
judge cited United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2003), for the
proposition that an attorney’s intentional deceit warrants equitable tolling only
if the petitioner reasonably relied on the misrepresentation. Although the
magistrate judge expressed that Palacios did not support his allegation of
misrepresentation with competent evidence, and that he “could have filed a
bare-bones petition and supplemented it with his documents when he obtained
them,” the magistrate judge did not appear to base the recommended denial of
equitable tolling on those grounds.

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       The district court “adopt[ed] as its own the findings and conclusions of the
Magistrate Judge[,] as supplemented” in an order addressing Palacios’s
objections. In that order, the district court made findings that (1) “Petitioner’s
evidence did not affirmatively establish that Petitioner’s attorney made a false
representation of fact,” (2) there was “sufficient evidence to show that Petitioner
was aware that his state court writ had not been filed” as of January 29, 2010,
a date it deemed “sufficiently in advance of his February 24, 2010 deadline to
allow him to take action to preserve his federal rights,” and (3) “the time
between January 29, 2010 and February 24, 2010 was . . . . sufficient time to
ensure that the writ was filed.” Without specifying whether its equitable tolling
ruling was grounded in law or discretion, the district court granted the
government’s motion for summary judgment.
       Though we question one legal basis on which the district court’s equitable
tolling ruling appeared to rest,3 we may nonetheless affirm its dismissal of
Palacios’s habeas petition if dismissal is justified by another ground supported
by the record. See Arita v. Cain, 500 F. App’x 352, 353 (5th Cir. 2012)
(unpublished), cert. denied, __ U.S. __, 133 S. Ct. 1828 (2013) (citing Palmer ex
rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009)).
                                       DISCUSSION
       AEDPA provides for a one-year limitation period during which a state
prisoner may seek federal habeas review of his judgment of conviction, running,
in this case, from “the date on which the judgment became final by the

       3
          Insofar as Riggs was read to foreclose the availability of equitable tolling where an
attorney abandons his client but does not make an affirmative misrepresentation, 314 F.3d at
799, it is in tension with recent Supreme Court guidance that abandonment alone may suffice
to establish an extraordinary circumstance potentially warranting equitable tolling, Maples v.
Thomas, 132 S. Ct. 912, 923 (2012) (commenting that evidence of abandonment “would suffice
to establish extraordinary circumstances beyond [a petitioner’s] control” (citing Holland v.
Florida, 130 S. Ct. 2549 (2010))); see also Manning v. Epps, 688 F.3d 177, 184 n.2 (5th Cir. 2012),
cert denied, __ U.S. __, 133 S. Ct. 1633 (2013) (“[A]ttorney abandonment can qualify as an
extraordinary circumstance for equitable tolling purposes.” (citing Maples, 132 S. Ct. at 924)).

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conclusion of direct review or the expiration of the time for seeking such review.”
28 U.S.C. § 2244(d)(1)(A). Palacios’s conviction became final, and his limitation
period began to run, on February 24, 2009, the date on which the 90-day period
in which to seek review with the United States Supreme Court expired.4 See
Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir. 2003) (citing 28 U.S.C. §
2244(d)(1)(A)). Palacios filed his state habeas petition on April 6, 2010, and his
federal habeas petition on February 25, 2011. Because his state habeas petition
was not filed within the one-year period, it did not statutorily toll the limitation
clock. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (citing § 2244(d)(2)).
Accordingly, his AEDPA limitation period expired on February 24, 2010, unless
it was equitably tolled.
       To obtain the benefit of equitable tolling, Palacios must establish that (1)
he pursued habeas relief with “reasonable diligence,” and (2) some
“extraordinary circumstances” stood in his way and “prevented” timely filing.
Manning, 688 F.3d at 183 (citing Holland, 130 S. Ct. at 2562). We begin—and
in this case, end—with the diligence requirement.
       “The diligence required for equitable tolling purposes is reasonable
diligence, not maximum feasible diligence.” Holland, 130 S. Ct. at 2565 (internal
quotation marks and citations omitted). Whether diligence is “reasonable” is an
“equitable, often fact-intensive inquiry” in which courts are instructed to avoid
“mechanical rules” and instead to “draw upon decisions made in other similar
cases for guidance.” Id. at 2563, 2565 (internal quotation marks omitted).
Accordingly, we proceed by reciting the relevant facts, comparing the diligence
shown by Palacios to the diligence shown by petitioners in similar



       4
         For the first time on appeal, Palacios disputes this calculation, arguing that the period
began to run on March 15, 2009, 90 days after he purportedly received notice of the denial of his
petition for discretionary review. By conceding this point below, Palacios waived the right to
dispute it on appeal, Black v. N. Panola Sch. Dist., 461 F.3d 584, 592 (5th Cir. 2006).

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circumstances, and then exercising our review judgment as to whether, under
the circumstances, Palacios demonstrated reasonable diligence.
       A.     Facts bearing upon reasonable diligence inquiry
       Palacios     highlights     the    following     record      facts   and    allegations
demonstrating his diligence: (1) Palacios hired Attorney Stephen McMains to file
his state habeas petition and represent him in state habeas proceedings on
September 14, 2009, five months before the expiration of the limitation period;
(2) Palacios informed McMains by letter of the filing deadline at the time of his
hiring; (3) Aida Cortez, Palacios’s wife, contacted McMains by phone and
traveled to McMains’s home and office to follow up with him about the status of
the habeas application; (4) when McMains was unresponsive, Cortez filed a
grievance against him with the Texas State Bar, and Palacios reminded him by
letter of the expiration of the AEDPA one-year limitation period, directed him
again to file the state habeas petition, and gave him ten days to respond; (5)
when McMains did not respond within the ten-day period, Palacios discharged
McMains by letter and requested “original copies [of court documents] and all my
transcripts as soon as possible”; (6) on the day Palacios purportedly received his
file back, he filed his state habeas application pro se.5
       The Texas Attorney General’s Office responds by emphasizing the
following record facts which, it contends, indicate that Palacios “slept on his
rights”: (1) Palacios waited to hire McMains for ten months after the denial of
his petition for discretionary review and seven months after his AEDPA
limitation period began to run; (2) Palacios discharged McMains on February 11,
2010, 13 days before the expiration of the AEDPA limitation period, but did not


       5
         During oral argument, counsel for petitioner stated that Palacios did not receive his
file back “until March . . . after March 4th, well after the February 25th deadline.” The precise
date on which Palacios received his file back has not been documented or litigated. We will
assume arguendo that Palacios received his file back on April 6, 2010, the date he filed his
state habeas petition.

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file a state habeas petition until April 6, 2010, more than a month after the
deadline; and (3) Palacios waited until February 25, 2011, 30 days after the
TCCA’s denial of his state habeas petition, to file his federal habeas petition.
      B.    Analysis
      Of the many considerations bearing upon the reasonable diligence
analysis, three are most pertinent here: (1) Palacios waited seven months after
learning of the denial of his petition for discretionary review to hire an attorney,
(2) after hiring McMains, Palacios directed him to file the petition, reminded him
of the filing deadline, and inquired into the filing status, and (3) after firing
McMains with two weeks remaining on his AEDPA limitation period, aware that
the period was about to expire, Palacios did not file a state habeas petition or a
protective federal habeas petition within that period.
            1.     Seven-month delay
      Our first consideration on review is whether Palacios’s seven-month delay
in hiring an attorney shows a lack of reasonable diligence.
      We have held that state prisoners who were aware that their state post-
conviction proceedings were no longer pending and waited to file federal habeas
petitions between four and six months after the AEDPA limitation period began
to run did not exercise reasonable diligence. See Melancon v. Kaylo, 259 F.3d
401, 408 (5th Cir. 2001) (holding that petitioner had not shown reasonable
diligence because he “waited more than four months to file his federal habeas
petition”); Coleman v. Johnson, 184 F.3d 398, 403 (5th Cir. 1999) (per curiam)
(holding that petitioner had not shown reasonable diligence because he “did not
file his § 2254 petition until approximately six months after learning of the
denial of his state postconviction application,” and “d[id] not explain the
six-month delay between being notified about his state application and filing his
federal petition”); Koumjian v. Thaler, 484 F. App’x 966, 969–70 (5th Cir. 2012)
(per curiam) (unpublished) (holding that petitioner had not shown reasonable

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                                  No. 11-41080

diligence because his delay in filing “exceed[ed] four and a half months”).
Palacios does not distinguish these cases or identify countervailing precedent.
      It could be argued that it follows a fortiori that Palacios, who did not hire
an attorney, much less file a habeas petition, until seven months after learning
of the denial of his petition for discretionary review, would similarly be unable
to demonstrate reasonable diligence. But to hold that the reasonable diligence
outcome here is dictated by Melancon, Coleman, and Koumjian would be to
suggest a bright-line rule that a prisoner does not exercise reasonable diligence
if he does not hire an attorney within four months of the date his AEDPA
limitation period begins to run. Such a ruling would be in tension with our
previous observation that “equitable tolling does not lend itself to bright-line
rules,” Fisher, 174 F.3d at 713, and the Supreme Court’s recent guidance that
equitable tolling decisions “must be made on a case-by-case basis,” Holland, 130
S. Ct. at 2563. Accordingly, we adhere to Melancon, Coleman, and Koumjian
and factor them into our equitable tolling analysis, with awareness that the
“specific circumstances” of this case could “warrant special treatment.” Holland,
130 S. Ct. at 2563; see also Williams v. Thaler, 400 F. App’x 886, 890–91 (5th Cir.
2010) (per curiam) (unpublished) (citing equitable tolling caselaw and noting:
“Though we are guided by this precedent, we are mindful of the dangers of
creating a rule regarding the specific timeframe in which a petitioner must
inquire regarding the status of his state habeas application in order to
demonstrate diligence. Rather, the circumstances of each case, taken together,
must determine whether a particular petitioner was diligent in pursuing his
claims and, therefore, entitled to equitable tolling.”).
            2.     Diligence after hiring McMains
      Our second consideration on review is whether Palacios exercised
reasonable diligence after hiring McMains, which we assess by comparing the



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                                  No. 11-41080

diligence exercised by Palacios to the diligence exercised by petitioners faced with
comparable instances of attorney abandonment. Holland, 130 S. Ct. at 2563.
      Recent decisions addressing the equitable tolling ramifications of attorney
abandonment are illustrative. In Holland, the Supreme Court concluded that
petitioner had shown reasonable diligence by: “wr[iting] his attorney numerous
letters seeking crucial information and providing direction”; “repeatedly
contact[ing] the state courts, their clerks, and the Florida State Bar Association
in an effort to have [his attorney]—the central impediment to the pursuit of his
legal remedy—removed from his case; and “prepar[ing] his own habeas petition
pro se and promptly fil[ing] it with the District Court” on “the very day that [he]
discovered that his AEDPA clock had expired due to [his attorney’s] failings.” Id.
at 2565. We recently applied Holland’s teachings in Manning v. Epps, 688 F.3d
177 (5th Cir. 2012), and Arita v. Cain, 500 F. App’x 352 (5th Cir. 2012) (per
curiam). In Manning, we concluded that a petitioner had not shown reasonable
diligence because, for a period of 19 months after he knew his conviction had
become final, he relied on his appointed attorneys to file his habeas petition
without directing them to file the petition or inquiring into its status. 688 F.3d
at 184–86. In Arita, we concluded that a petitioner had not shown reasonable
diligence because he “never instructed [counsel] to file a [state or] federal habeas
petition”; did not discharge non-responsive counsel until seven months after the
filing deadline had passed; waited more than a month to file his state habeas
petition after hiring new counsel; and did not file a “protective” federal habeas
petition preserving his federal remedies until his state remedies had been
exhausted. 500 F. App’x at 353–55. These cases establish that “petitioners
seeking to establish due diligence must exercise diligence even when they receive
inadequate legal representation,” Manning, 688 F.3d at 185, and serve as
guideposts for what constitutes reasonable diligence in the face of attorney
abandonment.

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      Assuming arguendo that Cortez’s efforts on Palacios’s behalf may be
attributed to Palacios, an issue not briefed by the parties, we perceive that
Palacios’s diligence after hiring McMains is on par with Holland’s: both
petitioners wrote their attorneys “numerous letters seeking crucial information
and providing direction,” and, when their attorneys were unresponsive, filed
grievances with the state bar association, discharged their attorneys, and
promptly prepared pro se habeas petitions. 130 S. Ct. at 2565. Moreover, unlike
Manning and Arita, Palacios unambiguously directed McMains to file the
petition, and discharged him before the filing deadline when it became apparent
he was not going to perform the sole task for which he had been hired.
Accordingly, “draw[ing] upon decisions made in other similar cases for
guidance,” Holland, 130 S. Ct. at 2563, and assuming without deciding that
Cortez’s efforts are factored into the analysis, we conclude that, after hiring
McMains, Palacios exercised reasonable diligence in pursuing state post-
conviction relief.
             3.      Protective federal habeas petition
      Whether Palacios exercised reasonable diligence in pursuing federal post-
conviction relief is a closer call. Palacios filed his federal habeas petition within
30 days of the TCCA’s denial of his state habeas petition, but did so one year
after his AEDPA limitation period expired. Palacios could have prevented its
expiration by timely filing a “protective” federal habeas petition. Our third
consideration is whether Palacios’s failure to do so shows a lack of reasonable
diligence.
      In Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), the Supreme Court
noted that one option for prisoners unsure whether their state habeas petitions
have been or will be timely filed is to file “a ‘protective’ petition in federal court
and [to] ask[] the federal court to stay and abey the federal habeas proceedings
until state remedies are exhausted.” The Supreme Court did not indicate

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                                   No. 11-41080

whether a prisoner’s failure to file a protective petition alone demonstrates a
lack of reasonable diligence, a question this court has since raised but declined
to resolve. See Madden v. Thaler, No. 11-10690, 2013 WL 1319349, at *6 (5th
Cir. Apr. 3, 2013) (per curiam) (unpublished) (stating that the court “need not
decide . . . whether a prisoner must file a protective petition to establish that he
was acting with the requisite diligence”); Howland v. Quarterman, 507 F.3d 840,
846 (5th Cir. 2007) (“We expressly decline to determine whether a ‘protective’
petition is necessary [to get the benefit of equitable tolling].”), abrogated on other
grounds by Campbell v. State, 320 S.W.3d 338 (Tex. Crim. App. 2010).
      In keeping with our disinclination to create bright-line rules constraining
our equitable tolling analysis, we decline to hold that the failure to file a
protective petition alone prevents a prisoner from receiving equitable tolling.
We note, additionally, that Palacios’s failure to file a protective federal habeas
petition is mitigated by (1) the limited time period—13 days—in which he had
to file it, and (2) the allegation that he lacked access to his file until after the
expiration of the AEDPA limitation period. Under the circumstances, Palacios’s
failure to file a protective federal habeas petition weighs against, but is not
dispositive of, the reasonable diligence inquiry.
      C.     Balancing
      Acknowledging it is a close case, we affirm the district court’s judgment
that Palacios is not entitled to equitable tolling on the basis that he failed to
exercise reasonable diligence. Weighed heavily in our analysis is Palacios’s
lengthy, unexcused delay in hiring an attorney. We grant that it may take time
for a state prisoner without full access to phones and internet to find, meet with,
and retain an attorney. We allow also that it may be proper for us to exempt
from consideration time spent by prisoners in administrative segregation and
medical and psychiatric wards. See, e.g., Fisher, 174 F.3d at 715 (“We have
recognized the possibility that mental incompetency might support equitable

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tolling of a limitation period. Combined with forced confinement and medication,
no access to legal materials, and the temporary loss of one’s glasses, a pro se
petitioner such as Fisher simply cannot pursue his legal rights during such a
period.”) (citation omitted).         But Palacios took seven months to retain an
attorney—more than half of the limitation period—and, notably, does not offer
a reason for the delay. Moreover, after having discharged his attorney with two
weeks remaining on his AEDPA limitation period—giving him a chance to meet
the deadline notwithstanding his attorney’s alleged misconduct—he did not file
a protective federal habeas petition to preserve his federal remedies. The
district court found that, under the circumstances, two weeks was enough time
“to allow [Palacios] to take action to preserve his federal rights.” We agree. In
short, though Palacios demonstrated reasonable diligence during the latter half
of the limitation period, it was not enough to make up for his earlier and
subsequent delay.6
                                      CONCLUSION
       The district court’s dismissal of Palacios’s federal habeas petition is
AFFIRMED.




       6
          Having so concluded, we decline to decide whether his attorney’s alleged
misrepresentation and abandonment qualifies as an “extraordinary circumstance,” and
whether it “prevented” timely filing. See Manning, 688 F.3d at 184–90 (“assum[ing] without
deciding” that the “extraordinary circumstance” prong is satisfied); Arita, 500 F. App’x at 354
(“We need not decide whether Williams’s conduct was merely negligent or, to the contrary,
sufficiently egregious to be considered rare and extraordinary; Arita is not entitled to equitable
tolling anyway, because he failed to pursue his rights diligently.”). We trust that the
allegations of attorney misconduct raised in this appeal have been investigated and resolved
by the Texas Office of the Chief Disciplinary Counsel, to whom petitioner’s grievance was
addressed.

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