                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                       F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                       June 16, 2004
                        FOR THE FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                                                                          Clerk

                              No. 02-11274


UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

versus

STACEY WYNN,

                                                    Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                        (4:96-CR-68-19-A)
                      --------------------

Before SMITH, WIENER and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Stacey Wynn appeals the district court’s

dismissal of his untimely filed § 2255 motion after rejecting

Wynn’s request for equitable tolling.       We affirm the ruling of the

district court.

     After Wynn was convicted for committing a number of federal

crimes and was sentenced to prison, he sought to urge on direct

appeal that he had received ineffective assistance of counsel.                 We

affirmed his conviction and sentence, and noted that his claim of

ineffective    assistance   should   be   raised   in   a   §   2255    motion.

     *
       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this opinion should not be published and is not precedent except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.
Thereafter, Wynn retained appellate counsel to prosecute his habeas

corpus claim.    Wynn eventually filed such a claim, but did so after

the prescribed time for doing so had expired.                 The district court

refused to allow Wynn to continue on the theory that misleading

communications from his habeas counsel had caused the late filing.

On appeal, we remanded to the district court to hold an evidentiary

hearing on Wynn’s claims.

     On remand, the district court found that Wynn had failed to

establish   that    he   had   been   misled    by   habeas     counsel   through

misrepresentations to Wynn and to Wynn’s father.                The court ruled

in   the    alternative        that   even     if      Wynn    had   relied   on

misrepresentations by counsel, his reliance was unreasonable.

     We have carefully reviewed the record in this case and the

appellate briefs of counsel, and have heard oral argument from able

counsel as well.     In the end, we are satisfied that Wynn has failed

to demonstrate clear error in the district court’s ruling that any

reliance    by   Wynn    on    counsel’s     alleged     misrepresentation    is

unreasonable.      As the district court’s findings are plausible and

supported by the evidence, the court’s conclusions based on such

findings cannot be clear error.            See Anderson v. City of Bessemer

City, N.C., 470 U.S. 564 (1985).               Consequently, the district

court’s ruling that equitable tolling is not available to justify

Wynn’s untimely filing of his § 2255 petition is, in all respects,

AFFIRMED.



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