[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1524
RAYMOND L. GARY,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Stahl, Circuit Judge,
Campbell and Bownes, Senior Circuit Judges.
Raymond L. Gary on brief pro se.
Margaret E. Curran, United States Attorney, Donald C.
Lockhart and Gerard B. Sullivan, Assistant United States
Attorneys, on brief for appellee.
February 2, 2001
Per Curiam. Raymond J. Gary appeals pro se from the
denial of his 28 U.S.S. § 2255 petition as untimely given
the one-year time limit imposed by the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"). Passing the
question whether the time limits of amended § 2255 are
subject to equitable tolling, we affirm essentially for the
reasons stated by the district court. We add the following
comments to address arguments pressed on appeal.
Gary suggests that the one-year time limitation
should be equitably tolled because he was "misled" by Lindh
v. Murphy, 521 U.S. 320 (1997) into thinking that the AEDPA
does not apply where, as here, the underlying criminal case
was initiated pre-AEDPA. This argument fails. First,
Gary's interpretation of Lindh is not reasonable. Cf. Green
v. White, 223 F.3d 1001, 1003 (9th Cir. 2000) (denying
equitable tolling where reliance on Lindh was not
reasonable). Second, Gary's reliance argument is largely
undercut by the fact that Lindh was decided only one day
before his § 2255 petition was due.
Gary also suggests that equitable tolling is
warranted because his attorney gave him misleading advice to
the effect that he had "plenty of time" and should wait
until he reached his final destination before sending for
his record. This argument fails if for no reason than that
attorney error does not, as a general rule, warrant
equitable tolling. See, e.g., Kreutzer v. Bowersox, 231
F.3d 460, 463 (8th Cir. 2000) (counsel's confusion about
AEDPA's time limit does not warrant equitable tolling);
Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir.
1999) (denying equitable tolling where § 2255 petition was
late because attorney used regular mail).
As for Gary's suggestion that equitable tolling is
warranted because his counsel intended to deceive him, this
argument is arguably waived. In his factual proffer below,
Gary did not aver that counsel acted from an improper
motive. In any event, the argument fails on the proffered
facts. There is no suggestion in Gary's affidavit that he
indicated to counsel a desire to collaterally attack his
conviction until sometime after the time limit expired.
Rather, during the relevant period, Gary and his attorney
discussed Gary's desire to get federal credit for time
served in state custody. In the context of this
conversation, counsel's advice seems appropriate.
Finally, Gary proffers copies of letters in which
he requests his former counsel to send his record. These
letters were not submitted below. Even if we could properly
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consider this material (and we cannot), see United States v.
Kobrosky, 711 F.2d 449, 457 (1st Cir. 1983) (evidentiary
matters not first presented to the district court are not
properly before us), it would not alter the outcome. The
letters go to the question whether Gary was unable to file
a timely § 2255 petition due to the fact that he did not
have necessary parts of the record, and, if so, whether he
was diligent in seeking his case file from his attorney.
The letters are some evidence that Gary was diligent late in
the game, when the time limit had already expired. However,
they do not show him to have been diligent during the
relevant period. In fact, during the relevant period Gary
simply acquiesced in his attorney's suggestion that he wait
until he reach his final destination before sending for his
record.
Affirmed.
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