     Case: 15-50206      Document: 00514541320         Page: 1    Date Filed: 07/05/2018




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

                                                                                FILED
                                      No. 15-50206                           July 5, 2018
                                                                           Lyle W. Cayce
JESUS JAIME JIMENEZ,                                                            Clerk


              Petitioner - Appellant

v.

GARY HUNTER, Senior Warden; LORIE DAVIS, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION,

              Respondents - Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:14-CV-420


Before DAVIS, GRAVES, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge: *
       Jesus Jaime Jimenez appeals the district court’s dismissal of his petition
for a writ of habeas corpus as untimely.              The district court did so after
concluding equitable tolling did not apply in Jimenez’s situation as his
allegations—that his first postconviction attorney abandoned him seven-and-
a-half months into his one-year federal habeas limitations period, that his


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-50206    Document: 00514541320       Page: 2   Date Filed: 07/05/2018



                                   No. 15-50206
second postconviction attorney did not provide him his legal documents until
two days before his filing deadline, and that the prison library policy
compounded these obstacles—either did not amount to extraordinary
circumstances or did not cause his untimely filing.
                                        I.
      Jimenez was convicted in 2006 of engaging in organized crime. That
conviction resulted in a fifty-year prison sentence. Believing his conviction was
the product of a deficient trial, Jimenez hired new counsel, Nancy Barohn, to
help him contest the outcome.
      Jimenez lost the first challenge to his conviction in 2009, when the
intermediate state court affirmed his conviction on direct appeal. The Texas
Court of Criminal Appeals later denied his petition for discretionary review,
handing Jimenez his second loss. Barohn opted not to continue the battle on
direct appeal, allowing the ninety days to seek review from the Supreme Court
to expire. On that day—August 3, 2010—Jimenez’s one-year limitations period
to seek federal habeas review began to run.
      Barohn’s efforts carried on to the collateral stage, or so Jimenez thought.
Barohn informed Jimenez of the discretionary review denial in mid-August via
letter. In that same letter, she asked Jimenez’s permission to work on his state
petition for writ of habeas corpus alongside Jimenez’s trial counsel,         Bob
Galvan.   Jimenez agreed.     Barohn then suggested they all meet in early
October to work on his petition.
      The first sign of discord came four months later.         Galvan wrote to
Jimenez reassuring him the state writ was in the works and persuading him
to keep him and Barohn as his attorneys. This effort was in response to
complaints by Jimenez. Galvan contended that no one knew the thirty-one
volume record better than the current team and warned that hiring someone


                                        2
    Case: 15-50206     Document: 00514541320      Page: 3   Date Filed: 07/05/2018



                                   No. 15-50206
else would create substantial delays and that complaining too much may result
in Barohn withdrawing.
      That last warning proved prophetic. Barohn wrote to Jimenez on March
7, 2011, announcing she was withdrawing as his counsel, saying she was
burned out and citing Jimenez’s voluminous correspondence. This news came
seven-and-a-half months into Jimenez’s one-year federal habeas limitations
period. Contrary to prior assurances, Barohn informed Jimenez that no work
had been done on the state writ.
      Jimenez promptly retained new counsel: Richard Ellison. Ellison filed
Jimenez’s state writ on June 21, 2011. That state filing tolled Jimenez’s
federal limitation period while it was being considered. 28 U.S.C. § 2244(d)(2).
The ensuing denial of that writ on February 5, 2014, restarted Jimenez’s
limitation period. He had forty-three days to file his federal habeas petition.
      Jimenez spent twenty-six of those remaining days trying to understand
the state court’s denial of his writ. He first learned of it on February 11, 2014—
six days later—through a “white card” sent by the Texas Court of Criminal
Appeals. Unable to decipher what the white card meant, he wrote to Ellison
seeking clarification and guidance on next steps. llison responded seventeen
days later, explaining the state writ had been denied and attaching a sparsely
filled out form federal habeas petition for Jimenez to file pro se. Jimenez
received this letter March 3, 2014. He had seventeen days to file.
      Jimenez spent the next fifteen days trying to obtain his state writ
petition and related materials. He wrote to Ellison the same day he received
his letter to request those documents so he could complete the petition on his
own. This was because, according to Jimenez, he did not have any such files
from which to draw the information necessary for his federal habeas petition.
Jimenez received these files on March 18, 2014. He had two days to file.


                                        3
    Case: 15-50206    Document: 00514541320     Page: 4   Date Filed: 07/05/2018



                                 No. 15-50206
      Uncertain about his filing deadline, Jimenez went to work on his federal
habeas petition. Compounding Ellison’s delays was the prison library’s three
cases, three days policy: inmates could only have three cases at a time and
request new materials on three days of the week. Jimenez filed his petition on
April 23, 2014, which was 34 days after his federal deadline. It raised issues
concerning an alleged conflict of interest by the state trial judge and a Brady
violation by prosecutors.
      The district court dismissed the filing as untimely. It found equitable
tolling was not warranted as Jimenez’s allegations either did not amount to
extraordinary circumstances or did not prevent him from timely filing.
Looking first to Barohn’s misconduct, it concluded that, regardless whether
extraordinary, her actions did not cause Jimenez’s untimely filing because he
still had five months to file after her withdrawal. The district court then
evaluated each of Ellison’s misdeeds in isolation. It found each was, at most,
mere negligence. The district court went on to say that “because the attorney
is the prisoner’s agent . . . under ‘well-settled principles of agency law,’ the
principal bears the risk of negligent conduct on the part of his agent.” Finally,
it found Jimenez did not show that access to his complete record was necessary
to prepare and file his petition; something he “should have been able to [do]
using his appeal briefs and [s]tate [writ], documents he should have already
had access to.”
      We granted a certificate of appealability to authorize further review of
this procedural question.


                                       II.
      The Antiterrorism and Effective Death Penalty Act’s one-year
limitations period on state prisoners seeking federal habeas review is subject
to equitable tolling. Holland v. Florida, 560 U.S. 631, 645 (2010). To obtain
                                       4
       Case: 15-50206   Document: 00514541320    Page: 5   Date Filed: 07/05/2018



                                  No. 15-50206
that benefit, the petitioner must show both that he pursued habeas relief
diligently and some extraordinary circumstance prevented timely filing. Id. at
649.     The district court found no extraordinary circumstances, so did not
address the diligence requirement.      We review a district court’s decision
regarding equitable tolling for abuse of discretion, evaluating its findings of
fact for clear error and its determinations of law de novo. Alexander v. Cockrell,
294 F.3d 626, 628 (5th Cir. 2002). Determinations of law are so reviewed
because a district court by definition abuses its discretion when it makes an
error of law. United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002).
                                       A.
        Jimenez first argues that the district court’s importation of agency
principles into the equitable tolling context was improper as the Supreme
Court has expressly rejected doing that, recognizing instead that attorney
error can constitute extraordinary circumstances for purposes of equitably
tolling the AEDPA deadline. Holland, 560 U.S. at 650–52. To hold otherwise,
he contends, requires finding that Holland was overruled just a few years later
in Maples v. Thomas, 565 U.S. 266 (2012). Maples relied on agency principles
to excuse procedural default when an attorney abandons her client but not
when she is merely negligent and cites Holland as instructive on that issue.
Id. at 281–82.
        Whether Maples alters Holland this way is a subject of debate among
the circuits. The Second Circuit has said it does, holding that Maples means
attorney wrongdoing must rise to effective abandonment—an act that severs
the agency relationship—to constitute extraordinary circumstances in the
equitable tolling setting. Rivas v. Fischer, 687 F.3d 514, 538 n.33 (2d Cir.
2012). A divided panel of the Eleventh Circuit initially held that too. Cadet v.
Florida Dept. of Corrections, 742 F.3d 473, 480–81 (11th Cir. 2014). But after
en banc petitioning, it issued a revised opinion. 853 F.3d 1216, 1218 (11th Cir.
                                        5
     Case: 15-50206      Document: 00514541320         Page: 6    Date Filed: 07/05/2018



                                      No. 15-50206
2017). That opinion reiterates that attorney error, however egregious, cannot
warrant equitable tolling—again relying on Maples and its agency rationale.
Id. at 1226-27. But it notes that misconduct other than abandonment may
amount to extraordinary circumstances.             Id. at 1227.      Finally, the Ninth
Circuit has said it is unclear whether the Supreme Court intended to hold in
Maples that attorney misconduct short of abandonment can no longer serve as
a basis for equitable tolling. Luna v. Kernan, 784 F.3d 640, 648-49 (9th Cir.
2015). But because Maples did not explicitly overrule Holland, it ruled that
Holland’s holding—egregious attorney misconduct of all stripes may serve as
a basis for equitable tolling—remains good law. Id. at 649.
       We have yet to expressly chime in 1, and we need not today. That is
because Ellison’s failure to timely provide Jimenez with his legal documents
was not an error arising out of Ellison’s representation of Jimenez during
federal habeas. The agency principle holding a habeas petitioner generally
responsible for his attorney’s conduct typically involves that situation in which
the attorney is acting as the petitioner’s agent in filing the federal habeas
petition. See, e.g., Riggs, 314 F.3d at 798–800.
       But Jimenez was a pro se federal habeas petitioner. He conducted his
own research, gathered his own materials, and filed his own petition. Ellison’s
letter to Jimenez notifying him of his state writ denial confirms as much as he
expressly instructs Jimenez to proceed in the federal courts pro se.
       As the Seventh Circuit recently noted, this matters a great deal to the
tolling inquiry. Socha v. Boughton, 763 F.3d 674, 685–86 (7th Cir. 2014).



       1United States v. Wheaten, 826 F.3d 843, 852–53 (5th Cir. 2016) observes that “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,” which does, citing both Holland
and Maples. But it does not address whether Maples alters Holland’s holding on attorney
error and rejection of agency principles.
                                             6
    Case: 15-50206     Document: 00514541320      Page: 7   Date Filed: 07/05/2018



                                  No. 15-50206
Because Ellison was not Jimenez’s attorney during “the period relevant to our
inquiry,” “[h]is failure to [timely] turn over [Jimenez’s] file [] was not garden
variety neglect of a client.” Id. at 686. Rather, it was an obstacle external to
Jimenez that cannot be attributed to him under Holland’s standard or Maples’s
agency rationale. Id. at 685–86 (noting that while “counsel's misconduct is
attribut[able] to a client, [] noncounsel's conduct is not” and concluding that
“Socha was without access to any of the documents pertaining to his legal
proceedings through no fault of his own.”) (emphasis added); see also Spitsyn,
345 F.3d 796, 801 (9th Cir. 2003) (treating lack of access to legal documents as
an external obstacle and highlighting that “without the file, which [the
attorney] still possessed, it seems unrealistic to expect [the petitioner] to
prepare and file a meaningful petition on his own within the limitations
period”); cf. In re Wilson, 442 F.3d 872, 875 (5th Cir. 2006) (stating that
“[e]quitable tolling is appropriate when an extraordinary factor beyond the
plaintiff’s control prevents his filing on time”) (internal citation omitted)
(emphasis added).
      Courts confronting allegations of external obstacles more aptly focus on
how severely those impediments limited the petitioner’s ability to timely file.
See Hardy v. Quarterman, 577 F.3d 596, 598–99 (5th Cir. 2009) (finding the
state’s failure to notify petitioner of his state writ denial until six weeks after
his deadline to file a federal habeas petition was extraordinary enough to
warrant equitable tolling); Fisher v. Johnson, 174 F.3d 710, 715 (5th Cir. 1999)
(concluding that a delay in receiving notice of the Antiterrorism and Effective
Death Penalty Act did not so limit the petitioner’s ability to file because there
remained ample time but recognizing the result would be different “if an
essential piece of information was delayed near the filing deadline”); see also
Pabon v. Mahanoy, 654 F.3d 385, 400 (3rd Cir. 2011) (“[T]he proper inquiry is
not how unusual the circumstance alleged to warrant tolling is among the
                                        7
    Case: 15-50206     Document: 00514541320      Page: 8    Date Filed: 07/05/2018



                                  No. 15-50206
universe of prisoners . . . but rather how severe an obstacle it is for the prisoner
endeavoring to comply with AEDPA’s limitations period.”); Diaz v. Kelly, 515
F.3d 149, 154 (2d Cir. 2008).      Because agency principles do not apply to
Ellison’s conduct that impeded the federal habeas process, we will remand for
the district court to evaluate these facts in terms of an external obstacle.
                                        B.
      Jimenez contends the district court also erred by misconstruing his
allegation about his lack of access to his legal documents. We agree. The
district court’s ruling assumes Jimenez was in possession of the most
important files—the writ and accompanying briefs from his state litigation.
But Jimenez explicitly alleged to the contrary:
      Petitioner was in no position to . . . file his 2254 petition due to the
      fact that his state postconviction attorney had not forwarded him
      any portion of the record. Petitioner did not have a copy of his 11.07
      state writ application so that he may view and determine the
      merits that he would be addressing in his 2254. Petitioner made
      numerous requests, asking that his file may be sent to him,
      however, he was unsuccessful and couldn’t prepare his 2254 in a
      timely manner.
The ruling that “Jimenez should have been able to prepare his § 2254 petition
using his appeal briefs and state [writ],” seemingly overlooked this allegation
as nothing was cited that contradicts it. On remand, the district court should
either treat Jimenez’s allegation as true or hold a hearing to assess its
credibility. See United States v. Wynn, 292 F.3d 226, 230–31 (5th Cir. 2002)
(remanding for additional factfinding when petitioner’s allegations were at
odds with an assumption made by the district court and neither a hearing was
held nor factual findings were made on those allegations); Phillips v. Donnelly,
216 F.3d 508, 511 (5th Cir. 2000) (remanding for a hearing to determine if
petitioner can establish facts in support of his allegations for equitable tolling).



                                         8
    Case: 15-50206     Document: 00514541320     Page: 9   Date Filed: 07/05/2018



                                  No. 15-50206
                                      ***
      We thus VACATE the judgment and REMAND for further consideration
of whether equitable tolling is appropriate.       The evaluation of whether
extraordinary circumstances existed should take account of the effect of those
circumstances in the compressed time frame Jimenez had for filing his federal
petition. See Fisher, 174 F.3d at 715 (noting that while a delay in receiving a
piece of information was not an extraordinary circumstance in the present
case, “[i]n the right circumstances, [such] a delay . . . might call for equitable
tolling—such as . . . if an essential piece of information was delayed near the
filing deadline”). The district court on remand can also consider in the first
instance whether Jimenez exercised the diligence required for tolling.




                                        9
