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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-51123                  United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
UNITED STATES OF AMERICA,                                              June 23, 2016
                                                                      Lyle W. Cayce
                Plaintiff–Appellee,                                        Clerk

v.

DERRICK WHEATEN,

                Defendant–Appellant.




                     Appeal from the United States District Court
                          for the Western District of Texas


Before WIENER, PRADO, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      The district court dismissed Derrick Wheaten’s motion pursuant to 28
U.S.C. § 2255, concluding that it was barred by the statute of limitations in the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). 1 We agree
with the district court that Wheaten’s filing of an untimely petition for writ of
certiorari and the Supreme Court’s subsequent denial of that petition without
comment did not reset or extend the date on which the judgment of his
conviction became final. We accordingly affirm the district court’s denial of the
§ 2255 motion.



      1   28 U.S.C. § 2255(f).
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                                       No. 14-51123
                                               I
       Wheaten pleaded guilty, in federal district court, to aiding and abetting
the possession with intent to distribute cocaine base and was sentenced to 132
months of imprisonment. In Wheaten’s direct appeal, this court affirmed that
conviction and sentence on March 14, 2012, 2 resulting in a deadline of June 12,
2012, to petition the Supreme Court for a writ of certiorari. 3 On May 30, 2012,
Wheaten, through counsel, filed a motion to extend the certiorari petition
deadline to August 11, 2012, which the Supreme Court denied on June 7, 2012.
Despite the passing of the June 12 deadline, Wheaten’s counsel filed a
certiorari petition on July 5, 2012. The petition was placed on the Supreme
Court’s docket with a notation as to its untimeliness.
       The Government filed a memorandum in response to Wheaten’s
certiorari petition on July 31, 2012. In that filing, the Government stated that
if the Supreme Court chose to “overlook” the untimeliness of Wheaten’s
petition, then certiorari should be granted, the judgment vacated, and the case
remanded for further consideration in light of Dorsey v. United States. 4 The
Supreme Court denied the petition for certiorari without comment on October
1, 2012. 5
       On September 10, 2013, at the earliest, Wheaten filed a motion to vacate
his sentence pursuant to 28 U.S.C. § 2255. The Government filed a motion to
dismiss the § 2255 motion as time-barred, arguing that the judgment of
conviction became final one year after Wheaten’s June 12, 2012 deadline to file
a certiorari petition.




       2    United States v. Wheaten, 465 F. App’x 321, 321, 324 (5th Cir. 2012) (per curiam).
       3    SUP. CT. R. 13(1) (“[A] petition for a writ of certiorari . . . is timely when it is
filed . . . within 90 days after entry of the judgment.”).
         4 132 S. Ct. 2321 (2012).
         5 Wheaten v. United States, 133 S. Ct. 298 (2012) (mem.).

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                                     No. 14-51123
      The district court granted the Government’s motion and denied
Wheaten’s motion. The district court agreed with the Government that the
judgment became final when Wheaten’s time for filing a certiorari petition
expired on June 12, 2012, and held that the Supreme Court’s denial of the
untimely petition without comment did not restart or extend the limitations
period.   The district court further held that Wheaten was not entitled to
equitable tolling.      The district court granted Wheaten a certificate of
appealability, concluding that its decision on the timeliness question was in
tension with a footnote from a prior decision of this court. 6 Wheaten appealed.
                                            II
      We first consider whether the date on which the judgment of conviction
became final for purposes of § 2255(f)(1) was June 12, 2012, the last date on
which Wheaten could timely file a petition for writ of certiorari, or October 1,
2012, the date that the Supreme Court denied, without comment, his late-filed
certiorari petition. If Wheaten’s judgment of conviction became final on the
earlier date, then his § 2255 motion was untimely. We review de novo the
district court’s conclusion that Wheaten’s § 2255 motion was untimely. 7
      Under AEDPA, a one year statute of limitations governs habeas motions
filed by federal inmates. 8 That one year period runs from the latest of four
triggering events, including, relevant here, “the date on which the judgment of
conviction becomes final.” 9
      Although the statute does not define when a conviction “becomes final”
for purposes of federal habeas review of a federal conviction, the Supreme
Court stated in Clay v. United States that “[f]inality attaches when [the



      6 See United States v. Redd, 562 F.3d 309, 312 n.3 (5th Cir. 2009).
      7 United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008).
      8 28 U.S.C. § 2255(f).
      9 Id. § 2255(f)(1).

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                                      No. 14-51123
Supreme] Court affirms a conviction on the merits on direct review or denies a
petition for a writ of certiorari, or when the time for filing a certiorari petition
expires.” 10 The Supreme Court’s rules of procedure provide that a defendant
has ninety days after the court of appeals affirms the conviction to file a
certiorari petition, 11 unless an extension is obtained.           In Clay, the Court
decided the “narrow” question of when a judgment in a federal prosecution
becomes final if the defendant’s direct appeal to a court of appeals is
unsuccessful and the defendant does not petition for a writ of certiorari from
the Supreme Court. 12 The Government contended in Clay that the judgment
became final when the court of appeals’ mandate issued (the mandate had
automatically issued 21 days after entry of the court of appeals’ judgment).
The defendant disagreed, contending that the judgement of conviction had
become final 69 days later, at the end of the 90-day period for filing a petition
for writ of certiorari. The Court held that “[f]or the purpose of starting the
clock on § 2255’s one-year limitation period,” the “judgment of conviction
becomes final when the time expires for filing a petition for certiorari
contesting the appellate court’s affirmation of the conviction.” 13
      We conclude that the general statement in Clay that “[f]inality attaches
when [the Supreme] Court . . . denies a petition for a writ of certiorari” was not
intended by the Supreme Court to govern the situation in which an untimely
petition for writ of certiorari is summarily denied. The Court did not consider
in Clay whether the denial of an untimely petition for certiorari, without
comment, affected the § 2255 limitations period, and the Court has not
addressed that question in any of its other decisions. If the Court’s statement



      10 Clay v. United States, 537 U.S. 522, 527 (2003).
      11 SUP. CT. R. 13(1).
      12 Clay, 537 U.S. at 524.
      13 Id. at 525.

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                                        No. 14-51123
were applied without regard to the timeliness of a petition for certiorari, then
a defendant could extend the time for filing a motion under § 2255 for years by
filing and obtaining summary denial of a late petition for certiorari. We are
unwilling to read Clay so expansively.
       Wheaten relies on a footnote from this court’s decision in United States
v. Redd, in which we stated:
              Even though Redd filed his certiorari petition more than
       ninety days after this court had affirmed the denial of his rule 33
       motion, the fact that the Supreme Court considered and denied the
       petition started the statute of limitations from the date of the
       denial of the writ. “Finality attaches when this Court denies a
       petition for a writ of certiorari.” 14
However, this statement in Redd had no bearing on any issue actually decided
in that appeal. The statement is dicta and is not a statement of the law in this
Circuit that is binding on our panel. 15
       In Redd, we were concerned only with whether a defendant’s Rule 33
motion for a new trial filed after the deadline for filing a notice of appeal tolls
the date of finality of the judgment of conviction for purposes of § 2255(f)(1). 16
We were not required to resolve the effect of the denial of an untimely certiorari
petition.    The judgment of our court that affirmed Redd’s conviction and
sentence was entered in December 2003. 17 Redd did not file a petition for writ




       14  United States v. Redd, 562 F.3d 309, 312 n.3 (5th Cir. 2009) (alteration omitted)
(quoting Clay, 537 U.S. at 527).
        15 See, e.g., United States v. Segura, 747 F.3d 323, 328-29 (5th Cir. 2014) (“A statement

is dictum if it could have been deleted without seriously impairing the analytical foundations
of the holding and being peripheral, may not have received the full and careful consideration
of the court that uttered it. A statement is not dictum if it is necessary to the result or
constitutes an explication of the governing rules of law.” (quoting Int’l Truck & Engine Corp.
v. Bray, 372 F.3d 717, 721 (5th Cir. 2004)); Gochicoa v. Johnson, 238 F.3d 278, 286 n.11 (5th
Cir. 2000).
        16 Redd, 562 F.3d at 312.
        17 Id. at 311.

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                                     No. 14-51123
of certiorari seeking review of that judgment within 90 days of its issuance. 18
He had, however, filed a motion for a new trial while his 2003 appeal was
pending, and in our December 2003 decision, we remanded the motion for new
trial to the district court for disposition. 19 The district court denied the motion,
and this court affirmed that ruling on August 12, 2005. 20 Redd filed a petition
for writ of certiorari regarding the denial of his Rule 33 motion on August 4,
2006. 21 The August 4, 2006 petition for certiorari was untimely, and it was
denied without comment by the Supreme Court on October 2, 2006. 22 Redd
then filed, in November 2006, a § 2255 motion seeking habeas relief from his
conviction and sentence that the district court denied as untimely. 23              We
affirmed, and in discussing the case’s history, we gratuitously opined in
footnote 3 that even though Redd’s certiorari petition was untimely, “the fact
that the Supreme Court considered and denied the petition started the statute
of limitations from the date of the denial of the writ,” citing Clay. 24 However,
whether the denial of Redd’s untimely 2006 petition for certiorari affected the
§ 2255 limitations period was irrelevant to our decision regarding the
limitations period applicable to our December 2003 judgment. We held that
Redd’s 2003 Rule 33 motion for a new trial did not stop the clock for purposes
of § 2255(f)(1), and that our December 2003 judgment affirming his conviction
became final 90 days after its entry. 25 We reasoned that a criminal defendant
has up to three years, in some circumstances, to file a motion for new trial, and
we rejected the proposition that a defendant could extend the limitations



      18 Id.
      19 Id.
      20 Id.
      21 Id.
      22 Redd v. United States, 549 U.S. 930 (2006).
      23 Redd, 562 F.3d at 311.
      24 Id. at 312 n.3.
      25 Id. at 312-13.

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                                     No. 14-51123
period in § 2255(f) by filing a Rule 33 motion. 26 We therefore affirmed the
district court’s conclusion that Redd’s § 2255 motion challenging the conviction
affirmed in 2003 was untimely. 27 Footnote 3’s statement was unnecessary to
the judgment we rendered in Redd. 28 We consider that statement only to the
extent that it is persuasive.        Our determination of whether the Supreme
Court’s denial of Wheaten’s untimely petition for certiorari affected the finality
of the judgment convicting him is a question that we consider de novo.
       Wheaten argues that the Supreme Court Clerk’s acceptance and
transmission of his untimely petition to the Court, and the Court’s
consideration and denial of it, “reopened direct review” and “restored the
pendency of the direct appeal,” such that the one-year period in which he was
required to file his habeas motion began the day the Supreme Court denied the
certiorari petition. He argues that the Supreme Court implicitly excused the
lateness of his certiorari petition, which is within its discretion, 29 by docketing
(with a notation as to its lateness) and considering it, even though his motion
to extend the time for filing had been expressly denied in a written order before
he filed his untimely petition.
      The Supreme Court’s docketing and denial without comment of
Wheaten’s certiorari petition does not indicate that it actually exercised its
discretion and excused the lateness of Wheaten’s petition and therefore




       26 Id. at 313.
       27 Id. at 312-13.
       28 In re Hearn, 376 F.3d 447, 453-54 (5th Cir.) (“We find . . . that [prior case’s]

limitation on McFarland does not constitute an alternative rationale or an alternative
holding, but rather a mere judicial comment made during the course of delivering a judicial
opinion, but one that is unnecessary to the decision in the case and therefore not
precedential.” (internal quotation marks omitted)), decision clarified on other grounds on
denial of reh’g, 389 F.3d 122 (5th Cir. 2004).
       29 See, e.g., Bowles v. Russell, 551 U.S. 205, 212 (2007).

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                                       No. 14-51123
“reopen[ed] direct review.” 30        Additionally, the circumstances of this case
suggest that the lateness was not excused. As noted earlier, in its response to
Wheaten’s certiorari petition, the Government agreed that Wheaten’s petition
should be granted, the judgment vacated, and the case remanded if the
Supreme Court chose to excuse the petition’s lateness.                  The fact that the
Supreme Court denied the petition in spite of the Government’s concession
strongly suggests that the Court did not exercise its discretion to consider the
merits of the untimely petition and instead denied the petition because of its
untimeliness.
       In light of the Supreme Court’s practice of denying late-filed criminal
petitions without any explanation, were we to agree with Wheaten, a
defendant could bypass § 2255(f)(1)’s timeliness requirement altogether by
filing a certiorari petition months or even years after the deadline. This would
render      the   one-year    limitation under         § 2255(f)    a nullity      in      many
circumstances, 31 and we are unwilling to consider the Supreme Court’s denial
of a certiorari petition without comment as an implicit grant of a motion for
extension of time and consequent disposition of the untimely petition on its
merits.



       30See STEPHEN M. SHAPIRO ET AL., SUPREME COURT PRACTICE, § 6.1(e), at 391 (10th
ed. 2013):
       The [Supreme Court] Clerk’s Office will . . . accept untimely criminal (but not
       civil) petitions for docketing, and transmit them to the Court with a notice that
       they have been filed out of time. Most of these petitions, like other petitions,
       are denied without comment, so that it is impossible to tell whether the
       tardiness of the petitions is the reason (or part of the reason) for the Court’s
       action. All that can be said is that during the past 30 years, none of the
       criminal petitions that have been filed tardily by defendants—and there have
       been a number—has been granted. . . .
       31Cf. Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005) (“On petitioner’s theory, a state
prisoner could toll the statute of limitations at will simply by filing untimely state
postconviction petitions. This would turn § 2244(d)(2) into a de facto extension mechanism,
quite contrary to the purpose of AEDPA, and open the door to abusive delay.”).
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      A different conclusion would be difficult, if not impossible, to reconcile
with the reasoning in a recent decision of our court in Catchings v. Fisher. 32
There, a defendant convicted in state court failed to petition the Supreme
Court for direct review within the required ninety-day period. 33 Over one year
later, he filed an untimely certiorari petition, which the Supreme Court denied
without comment. 34 The inmate then filed a federal habeas petition under
§ 2254, arguing that the date his one-year limitations period commenced was
the date on which the Supreme Court denied his certiorari petition, rather than
the date his period for seeking Supreme Court review actually expired. 35 We
disagreed, holding that the fact that “Catchings eventually filed a petition for
certiorari, a year late, does not mean that the limitations period did not begin
to run when he missed the deadline for doing so.” 36 We continued:
      A contrary rule would permit any petitioner who missed the 90-day
      certiorari deadline to file a petition for certiorari years later and
      argue that his one-year limitations period did not begin until that
      late petition was denied. We thus decline to read the Supreme
      Court’s apparent practice of denying late petitions without
      explanation, rather than simply refusing to file them, as reviving
      the direct review of tardy petitioners for purposes of section
      2244(d)(1)(A). 37
Although Catchings arose in the context of a § 2254 petition, the rationale
logically extends to § 2255.
      Wheaten relies upon the Supreme Court’s decision in Jimenez v.
Quarterman, 38 but it did not address the issue in the present appeal. In
Jimenez, after a state criminal defendant missed his state-court deadline to


      32 815 F.3d 207 (5th Cir. 2016).
      33 Id. at 208.
      34 Id.
      35 Id. at 209.
      36 Id. at 210.
      37 Id. at 210-11.
      38 555 U.S. 113 (2009).

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                                     No. 14-51123
file a pro se response to his attorney’s brief pursuant to Anders v. California—
which had opined that the appeal had no merit—the defendant petitioned in
state court for an extension of his deadline. 39 The Texas Court of Criminal
Appeals granted that extension six years after his appeal had been dismissed
and “ordered” him “returned to that point in time at which he may [have]
give[n] written notice of appeal. . . . For purposes of the Texas Rules of
Appellate Procedure, all time limits shall be calculated as if the sentence had
been imposed on the date that the mandate of this Court issues.” 40                    The
defendant’s conviction was eventually affirmed, and he filed a federal habeas
petition under § 2254. 41 In response to the habeas petition, the State argued
that finality had attached to the conviction when the Texas court of appeals
dismissed the defendant’s appeal, and that the state court’s subsequent
reopening of the appeal had no effect on AEDPA’s one-year limitation. 42 The
Supreme Court disagreed, holding that “once the Texas Court of Criminal
Appeals reopened direct review of [Jimenez’s] conviction . . . [the] conviction
was no longer final for purposes of § 2244(d)(1)(A).” 43 The Texas court had
“restore[d] the pendency of the direct appeal,” which reset finality. 44
      In Jimenez the Supreme Court cautioned that the mere “possibility that
a state court may reopen direct review ‘does not render convictions and
sentences that are no longer subject to direct review nonfinal.’” 45 It held that
“where a state court has in fact reopened direct review, the conviction is




      39 Jimenez, 555 U.S. at 115-16.
      40 Id. at 116 (quoting Ex parte Jimenez, No. 74,433 (per curiam), App. 26, 27).
      41 Id. at 116-17.
      42 Id. at 117.
      43 Id. at 120.
      44 Id. (alteration in original) (internal quotation marks omitted).
      45 Id. at 120 n.4 (emphasis added) (quoting Beard v. Banks, 542 U.S. 406, 412 (2004)).

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rendered nonfinal for purposes of § 2244(d)(1)(A) during the pendency of the
reopened appeal.” 46
      In holding that Wheaten’s untimely direct review certiorari petition did
not reset his one-year deadline for filing a § 2255 motion, we are also persuaded
by the Ninth Circuit’s reasoning in United States v. Buckles, which confronted
the question presently before us. 47 The Buckles panel looked to the Supreme
Court’s decision in Pace v. DiGuglielmo, which held that an untimely state
habeas petition was not “properly filed” under § 2254(d)(2)—which allows
AEDPA’s one-year limitations period to toll during the pendency of properly
filed state post-conviction proceedings—even though there were “exceptions to
[the] timely filing requirement” in the state court and the clerk of the state
court had “accept[ed]” the filing. 48 Pace’s holding comports with the Jimenez
decision’s reasoning that the “possibility” of an exception being made for
untimeliness is not relevant to AEDPA’s one-year limitation, but that the
actual employment of the exception is. 49            Although the “properly filed”
requirement at issue in Pace presented a different question, the Ninth Circuit
in Buckles applied the same logic to a § 2255 motion. 50 It took note of the
Supreme Court’s practice of denying untimely certiorari petitions without
comment and expressed an “unwilling[ness] to treat the unexplained and
routine denial of [a] criminal certiorari petition that the Supreme Court’s Clerk
has labeled untimely as an indication that the Court forgave the untimeliness




      46 Id. (emphasis added).
      47 647 F.3d 883, 888-89 (9th Cir. 2011).
      48 544 U.S. 408, 413-15 (2005).
      49 See Jimenez, 555 U.S. at 120 n.4.
      50 Buckles, 647 F.3d at 888-89.

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of Buckles’s petition, thereby restarting the one-year limitations period of
§ 2255(f)(1).” 51
       Accordingly, we hold that when a federal defendant files an untimely
certiorari petition seeking direct review of his conviction, and the Supreme
Court gives no indication that it excused the untimeliness, the denial of the
petition without comment does not affect finality for purposes of § 2255(f)(1)’s
one-year limitations period. The dicta in United States v. Redd suggesting
otherwise is not binding. 52           Wheaten’s § 2255 motion was, therefore,
untimely. 53
                                             III
       Wheaten argues in the alternative that the filing deadline should be
equitably tolled and the § 2255 motion’s lateness excused. We note initially
that the parties dispute whether the district court denied equitable tolling as
a matter of law, such that our review must be de novo, or instead denied it in
an exercise of its discretion, such that we review for abuse of that discretion.
We need not resolve the proper standard of review because even reviewing de
novo, Wheaten has not established that equitable tolling is appropriate here. 54



       51  Id. (citing EUGENE GRESSMAN ET AL., SUPREME COURT PRACTICE, § 6.1(e), at 391
(9th ed. 2007)); accord United States v. Bendolph, 409 F.3d 155, 158 n.5 (3d Cir. 2005) (en
banc) (“Bendolph did not get the benefit of tolling for the time the petition was under
consideration by the Supreme Court because the petition was untimely and therefore not
properly filed.”).
        52 See 562 F.3d 309, 312 n.3 (5th Cir. 2009).
        53 Finally, the unpublished supplemental authority from the Eleventh Circuit to which

Wheaten brings our attention in a letter filed pursuant to Federal Rule of Appellate
Procedure 28(j) is inapposite. See Ortiz v. Sec’y, Dep’t of Corr., 621 F. App’x 624 (11th Cir.
2015). Contrary to Wheaten’s assertions, the Eleventh Circuit there did not state that the
inmate’s certiorari petition was untimely; it did not address that question. Id. In fact, our
review of the Supreme Court’s docket for Ortiz’s direct appeal demonstrates that the
certiorari petition was timely. See Ortiz v. Florida, No. 06-7488, dkt. sheet, available at
http://www.supremecourt.gov/docketfiles/06-7488.htm.
        54 See United States v. Petty, 530 F.3d 361, 365 (5th Cir. 2008) (per curiam) (“Petty

bears the burden of establishing equitable tolling is appropriate.”).
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                                      No. 14-51123
       To be entitled to equitable tolling, a movant must show “(1) that he has
been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.” 55 Our inquiry is
guided by the principle that equitable tolling of AEDPA’s one-year limitations
period is available only in “rare and exceptional circumstances.” 56 It “applies
principally where the plaintiff is actively misled by the defendant about the
cause of action or is prevented in some extraordinary way from asserting his
rights.” 57
       Wheaten claims that abandonment by his direct appeal attorney and a
misleading statement from the Supreme Court Clerk justify equitable tolling.
The district court held that neither of these circumstances is “extraordinary.”
We agree.
       In assessing when an attorneys’ conduct may amount to “extraordinary
circumstances,” the Supreme Court has differentiated between “garden variety
claim[s] of excusable neglect, such as a simple ‘miscalculation’ that leads a
lawyer to miss a filing deadline,” which do “not warrant equitable tolling,” and
abandonment by counsel. 58 Wheaten claims that his appellate lawyer “misled”
him into believing that a timely certiorari petition would be filed, missed the
deadline, and then failed to inform Wheaten about the missed deadline and
the fact that the Supreme Court had denied his extension request until almost
a month after the deadline had passed.




       55 Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation marks omitted).
       56 Felder v. Johnson, 204 F.3d 168, 170-71 (5th Cir. 2000) (citing Davis v. Johnson,
158 F.3d 806, 811 (5th Cir. 1998)).
       57 Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir. 1999) (per curiam) (quoting Rashidi

v. Am. President Lines, 96 F.3d 124, 128 (5th Cir. 1996)), abrogated on other grounds by
Causey v. Cain, 450 F.3d 601, 605 (5th Cir. 2006).
       58 Compare Maples v. Thomas, 132 S. Ct. 912, 923-24 (2012), with Holland, 560 U.S.

at 651-52 (2010).
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                                       No. 14-51123
        Our review of the record reveals that Wheaten’s appellate attorneys’
conduct does not cross the line between “garden variety” neglect and attorney
abandonment. In the cases in which the Supreme Court has recognized that
attorney abandonment may result in equitable tolling, the movant’s attorney
“failed to communicate with [the movant] over a period of years” 59 or did not in
fact represent the movant in any capacity whatsoever during the movant’s
period for filing an appeal, even though the attorney failed to file a motion to
withdraw. 60 In contrast, here, Wheaten’s appellate counsel sent him four
letters between May 2012, when she filed her motion for an extension with the
Supreme Court, and October 2012, when she informed Wheaten that the
Supreme Court had denied his certiorari petition. Counsel apprised him of the
Supreme Court’s denial of her extension request and of the fact that she filed
his petition late. She provided him a habeas legal guide. This conduct does
not    constitute    abandonment.           More     importantly,      Wheaten       readily
acknowledges that he learned of the Supreme Court’s denial of the motion for
an extension, and of the missed deadline, within less than a month of that
deadline’s expiration. When he learned of these circumstances, he still had
more than eleven months remaining on his AEDPA clock.                          Accordingly,
counsel’s failures cannot be said to have “stood in his way and prevented timely
filing” of his § 2255 motion. 61
        Wheaten alleges that in a telephone conversation days after his attorney
submitted the untimely petition, the Supreme Court Clerk told him that “your



        59See Holland, 560 U.S. at 651-52.
        60See Maples, 132 S. Ct. at 923-24.
       61 See Holland, 560 U.S. at 649 (emphasis added) (internal quotation marks omitted);

see also Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (“The word ‘prevent’ requires
the petitioner to demonstrate a causal relationship between the extraordinary circumstances
on which the claim for equitable tolling rests and the lateness of his filing, a demonstration
that cannot be made if the petitioner, acting with reasonable diligence, could have filed on
time notwithstanding the extraordinary circumstances.”).
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                                      No. 14-51123
certiorari [petition] has been docketed, accepted and is now pending. And after
this Court’s ruling, you have one-year to file a habeas corpus [sic] if the [C]ourt
doesn’t rule in your favor.” Wheaten claims that this incorrect advice misled
him into believing that the Supreme Court’s denial of his petition reset his
AEDPA clock, and that this advice therefore constitutes an extraordinary
circumstance. We disagree.
      In United States v. Petty, the defendant filed his § 2255 motion more than
one year after his deadline for filing a certiorari petition had run. He sought
equitable tolling of that deadline based on incorrect legal advice received from
the district court clerk. 62 Specifically, an assistant clerk of the court incorrectly
told the defendant that his conviction had been affirmed by our court almost
one month later than it actually had been—incorrectly referring to the date
the mandate issued rather than the date the opinion was released. 63 The
defendant claimed he relied on this advice, and indeed his § 2255 motion would
have been timely had the assistant clerk been correct. 64 However, we affirmed
the district court’s denial of equitable tolling, holding that notwithstanding the
defendant’s pro se status, he “should have known that . . . the date the original
opinion issued from this court[] was the relevant date for limitations purposes,
not the date the mandate issued.” 65 We stressed that the defendant had
otherwise twice been told the correct date of finality, which “should have
alerted [him] to determine the actual date when the conviction became final,”
and held that “[h]is failure to do so is not an ‘extraordinary circumstance’
requiring equitable tolling of the AEDPA limitations period.” 66




      62 See United States v. Petty, 530 F.3d 361, 364-66 (5th Cir. 2008) (per curiam).
      63 Id. at 363.
      64 Id.
      65 Id. at 365.
      66 Id. at 366.

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    Case: 14-51123       Document: 00513562765        Page: 16     Date Filed: 06/23/2016



                                      No. 14-51123
         Similarly, here, Wheaten had been told at least two times that his
certiorari petition was filed late. The fact that we had not yet resolved the
question underlying the timing of his appeal does not change the fact that
Wheaten “should have elected to err on the side of caution and abide by the
earlier of the two possible deadlines,” as “a lack of knowledge of the law,
however understandable it may be, does not ordinarily justify equitable
tolling.” 67 This is so even with respect to issues that neither our court nor the
Supreme Court had decided by the time the habeas movant’s deadline passes. 68
         Wheaten had ample time to prepare and file his § 2255 motion after the
Supreme Court denied his petition but before AEDPA’s deadline passed. His
reliance on the Supreme Court Clerk’s incorrect statement is not an
“extraordinary circumstance,” and does not demonstrate a diligent pursuit of
his rights. The facts of this case fall “far short of showing extraordinary
circumstances necessary to support equitable tolling.” 69
         Accordingly, we affirm the district court’s denial of equitable tolling.
                                    *        *       *
         For the reasons set forth above, we AFFIRM the judgment of the district
court.




          Flores v. Quarterman, 467 F.3d 484, 486-87 (5th Cir. 2006) (per curiam) (internal
         67

quotation marks omitted) (denying equitable tolling even though state of the law was unclear
when habeas petitioner missed deadline); see also Fierro v. Cockrell, 294 F.3d 674, 683 (5th
Cir. 2002) (“Although the application and interpretation of the AEDPA statute of limitations
was somewhat unsettled during this period, we think that such uncertainty should have
militated against taking an unnecessary risk by waiting to file a . . . habeas petition.”).
       68 Fierro, 294 F.3d at 682-83 & n.14.
       69 Petty, 530 F.3d at 365 (internal quotation marks and citation omitted).

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