     Case: 14-60788      Document: 00513877529         Page: 1    Date Filed: 02/15/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 14-60788                                 FILED
                                  Summary Calendar                        February 15, 2017
                                                                            Lyle W. Cayce
                                                                                 Clerk
MANUEL COOPER,

                                                 Petitioner-Appellant

v.

MARSHALL L. FISHER, COMMISSIONER,
MISSISSIPPI DEPARTMENT OF CORRECTIONS,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 3:14-CV-119


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Petitioner-Appellant Manuel Cooper, Mississippi prisoner # 91229, was
convicted by a jury of the crime of false pretenses and was sentenced in 2009
as a habitual offender to life imprisonment without parole or probation. He
appeals the district court’s dismissal of his 28 U.S.C. § 2254 application as
barred by the one-year statute of limitations in 28 U.S.C. § 2244(d). Previously,



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-60788
we granted a certificate of appealability on the issue “[w]hether this case
presents rare and extraordinary circumstances warranting equitable tolling.”
      Cooper does not dispute the district court’s determination that the
deadline for him to file his § 2254 application was November 23, 2012. See
§ 2244(d)(1)(A)-(D). Cooper insists, however, that his case presents rare and
extraordinary circumstances that warrant equitable tolling of the statute of
limitations. He claims that he diligently pursued his rights and asks that the
district court’s decision be reversed and his case be remanded for an
evidentiary hearing on the claims asserted in his § 2254 application.
      The Supreme Court has recognized an equitable tolling exception to
§ 2244(d) in appropriate cases. See Holland v. Florida, 560 U.S. 631, 645
(2010). “[A] petitioner is entitled to equitable tolling only if he shows (1) that
he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.” Id. at 649 (internal
quotation marks and citation omitted). Equitable tolling can apply to the
limitations period of § 2244(d) in rare and exceptional circumstances. Davis v.
Johnson, 158 F.3d 806, 810-11 (5th Cir. 1998).
      Our standard of review of a district court’s equitable tolling decision
depends on the grounds on which it is based. Palacios v. Stephens, 723 F.3d
600, 603 (5th Cir. 2013). If the district court’s decision to deny equitable tolling
is based on that court’s exercise of discretion, we review for abuse of discretion.
Palacios, 723 F.3d at 603 (citing Henderson v. Thaler, 626 F.3d 773, 779 (5th
Cir. 2010)). But, if the district court denies equitable tolling as a matter of law,
our standard of review is de novo. Palacios, 723 F.3d at 603. Either way, the
applicant has the burden of establishing that equitable tolling is warranted.
Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.), modified on reh’g, 223 F.3d
797 (5th Cir. 2000).



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                                  No. 14-60788
      “[A]n attorney’s failure to satisfy professional standards of care” by
failing “to communicate with [his] clients, to implement clients’ reasonable
requests, [and] to keep [his] clients informed of key developments in their
cases” can constitute extraordinary circumstances warranting equitable
tolling. Holland, 560 U.S. at 649-53. For equitable tolling to apply, a petitioner
need only show “reasonable diligence,” not “maximum feasible diligence.” Id.
at 653 (internal quotation marks and citations omitted).         This is a “fact-
intensive inquiry” that is resolved by comparing the diligence shown by the
petitioner to the diligence shown by other petitioners in similar circumstances.
Palacios, 723 F.3d at 605 (internal quotation marks and citation omitted).
      In the district court, Cooper stated that he retained counsel, John
R. McNeal, Jr., to submit a state post-conviction application and a federal
habeas application if needed. Cooper claims McNeal falsely implied that he
had submitted a writ of habeas corpus. Cooper stated that he had relied on
McNeal to submit the proper motions on his behalf and that McNeal was fully
paid, but that McNeal actively misled him. Cooper attached several exhibits
to his response, including correspondence with McNeal, the Clerk of Court of
the Northern District of Mississippi, and the Bar Association in a complaint
that he filed against McNeal, all in support of Cooper’s allegations that McNeal
misled him despite being paid in full.
      In dismissing Cooper’s § 2254 application as time barred, the district
court said that there was “no evidence before the Court suggesting that
Petitioner’s attorney intentionally deceived him.       Rather, the documents
submitted by Petitioner suggest the conditions of counsel’s retainer agreement
were not satisfied as of March 2012.” The court concluded that equitable
tolling was not warranted on the facts of this case.




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                                 No. 14-60788
       Cooper’s statements that McNeal had been paid in full were made under
penalty of perjury under 28 U.S.C. § 1746 and are considered competent sworn
testimony with the same force and effect as an affidavit. See Hart v. Hairston,
343 F.3d 762, 764 n.1 (5th Cir. 2003); see also Coker v. Quarterman, 270 F.
App’x 305, 310 (5th Cir. 2008) (stating that habeas petitioner’s statements
made under penalty of perjury under § 1746 have evidentiary value); Vineyard
v. Dretke, 125 F. App’x 551, 553 (5th Cir. 2005) (same).        Thus, they are
“evidence” that his attorney was paid in full. There is no evidence in the record
to contradict Cooper’s assertions that the retainer was paid subsequent to the
letter of March 15, 2012 from McNeal to Cooper.
      In his brief on appeal, Cooper states that his family paid $8,000 to
attorney McNeal. He supports that with affidavits from two of his sisters who
both attest that they each paid McNeal $4,000 to represent Cooper in his post-
conviction claims, and that McNeal told them that $8,000 was the full retainer
required unless and until Cooper received a new trial. This evidence, although
new, is duplicative support for Cooper’s own statements previously made under
penalty of perjury.
      On the issue of his diligence, Cooper outlines the history of his
communications with McNeal, and he asserts that his actions demonstrate
that he acted diligently in repeatedly communicating with his attorney about
the status of his habeas proceedings. He states that McNeal actively misled
him to make him believe that McNeal had filed, or shortly would file, a habeas
petition, as shown by their correspondence. The State does not address the
affidavits of Cooper’s sisters which he submitted as additional proof that
payment had been made in full.
      The district court focused on the one letter from McNeal to Cooper dated
March 15, 2012, requesting additional payment before proceeding with the



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                                No. 14-60788
filing of his post-conviction application. The district court did not address
Cooper’s repeated assertions, made under penalty of perjury, that McNeal had
been paid in full and had actively misled him to believe that he would file or
had filed a habeas petition. Cooper, like the petitioner in Holland, “wrote his
attorney numerous letters seeking crucial information and providing
direction,” contacted the district court for information, and asked the Bar
Association for assistance in getting his legal materials returned to him. See
Holland, 560 U.S. at 653.
      These facts and timeline are similar to those presented in United States
v. Wynn, 292 F.3d 226, 228-30 (5th Cir. 2002), in which the movant sought
assurances from his attorney that his 28 U.S.C. § 2255 motion had been filed,
and the attorney was alleged to have falsely represented to his client that it
had been filed. The movant repeatedly made unsuccessful attempts to contact
his attorney after the filing deadline to inquire about the status of his case,
only to learn much later that his attorney had failed to file the motion. We
vacated and remanded for an evidentiary hearing on the issue of equitable
tolling. 292 F.3d at 229-31; see also Vineyard, 125 F. App’x at 552-54 (same).
      As required by Holland, 560 U.S. at 652-53, the facts represented by
Cooper are sufficient to show that extraordinary circumstances existed and
that he was diligently pursuing his rights. In confecting its findings, the
district court ignored Cooper’s evidence that McNeal (1) had been paid in full,
yet (2) had continued to mislead Cooper to believe that his habeas application
would be or had been filed. The district court did not obtain an affidavit from
McNeal or hold an evidentiary hearing to resolve the potential conflicts in the
evidence. We conclude that the court abused its discretion in ruling that
equitable tolling was not warranted under the facts of the case as alleged by
Cooper and demonstrated by his evidence. See Wynn, 292 F.3d at 230.



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                                  No. 14-60788
       Because (1) equitable tolling is such a “fact-intensive inquiry,” see
Palacios, 723 F.3d at 605, and (2) we cannot determine the veracity of Cooper’s
verified allegations or his sisters’ affidavits in the first instance, we vacate the
district court’s dismissal and remand this case for an evidentiary hearing and
findings of fact relevant to (1) whether McNeal was in fact paid in full, (2)
McNeal’s alleged misrepresentations to Cooper regarding the status of his
habeas proceedings, and (3) the reasonableness of Cooper’s reliance on those
representations. See Wynn, 292 F.3d at 230-31; Vineyard, 125 F. App’x at 554.
       VACATED AND REMANDED.




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