IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-11222
Summary Calendar
CECIL DON VINEYARD,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:01-CV-173
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November 7, 2002
Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
We granted a certificate of appealability to Cecil Don
Vineyard, Texas prisoner no. 931998, on the issue whether
Vineyard’s reliance on his attorney’s alleged representations as
to the status of his case is sufficient to warrant equitable
tolling. Vineyard was twice convicted of possession of child
pornography arising out of a single transaction; the habeas
application now at issue pertains to the second conviction,
*
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that this opinion should not be published and is not precedent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.
No. 01-11222
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identified in the record as “#6614.” The state appellate court
overturned the conviction on double jeopardy grounds because
Vineyard had already been convicted in the prior case based on
materials seized during the same search as in the present case.
Vineyard v. State, 913 S.W.2d 731 (Tex. App. 1995), rev’d, 958
S.W.2d 834, 836 (Tex. Crim. App. 1998) (en banc). The Texas
Court of Criminal Appeals reinstated the conviction, holding that
the subsequent prosecution was not double jeopardy. Vineyard v.
State, 958 S.W.2d 834, 836-40 (Tex. Crim. App. 1998) (en banc).
On remand, the Texas court of appeals rejected Vineyard’s
remaining appellate arguments and affirmed the conviction in an
unpublished opinion. The Court of Criminal Appeals refused
Vineyard’s petition for discretionary review (“PDR”) on December
9, 1998. In June 4 2000, about 18 months after the PDR was
denied, and well after the expiration of the one-year limitation
period, Vineyard was arrested and returned to prison after having
been paroled on the earlier conviction and freed on an appeal
bond with respect to the conviction now at issue.
Vineyard contends that his 28 U.S.C. § 2254 petition should
not have been dismissed as untimely because his retained counsel,
Lance Hall, deliberately or negligently failed to inform him that
the Court of Criminal Appeals had denied Vineyard’s PDR, thus
misleading Vineyard as to the starting time of the limitations
period of 28 U.S.C. § 2244. Vineyard also contends that Hall
misled him to believe that Hall was preparing a 28 U.S.C. § 2254
No. 01-11222
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petition. See 28 U.S.C. § 2244(d)(1)(A) (providing one-year
limitation period). In dismissing Vineyard’s pro se habeas
application as time-barred, the district court concluded without
explanation that no conditions existed for equitable tolling.
An attorney’s misrepresentations may be grounds for
equitable tolling. See United States v. Wynn, 292 F.3d 226, 230
(5th Cir. 2002). In Wynn, we remanded the case because the
district court did not conduct a hearing or make factual
findings, and the question was “sufficiently close to warrant
remand for factual findings as to the factual basis for Wynn’s
allegations and the reasonableness of Wynn’s reliance o[n] his
attorney’s representations and advice.” Id. at 230.
Vineyard has asserted under penalty of perjury that on
specific dates during the limitation period he was deliberately
or negligently misinformed by Hall that his PDR was still pending
in the Court of Criminal Appeals. Vineyard also presented
affidavit and documentary evidence that Hall continued to mislead
Vineyard and his sister into believing that Hall was going to
file a federal habeas petition, thus further delaying Vineyard’s
pro se filing. Vineyard contends that he was not aware of the
PDR’s denial until he was arrested and returned to prison after
the limitation period had expired. He contends that he did not
know the actual date of the PDR’s denial until the respondent
sought dismissal of the present habeas application in the
district court. This misinformation or lack of information
No. 01-11222
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allegedly caused Vineyard to miscalculate the beginning of the
limitation period as having begun when he was arrested instead of
a year and a half earlier. He filed his federal habeas
application within a year of his arrest and shortly before he
believed the limitations period was to expire.
Vineyard has made a colorable claim that he is entitled to
equitable tolling under Wynn. Because the district court in
Vineyard’s case, like the court in Wynn, conducted no hearing and
made no factual findings, and because the record before this
court indicates that the issue is a close one, should Vineyard
substantiate his allegations, we VACATE the district court’s
dismissal and REMAND the case for further findings of fact
relevant to Hall’s alleged misrepresentations and the
reasonableness of Vineyard’s reliance upon them with regard to
equitable tolling of the one-year limitation period.
Vineyard has filed a motion that we construe as a motion to
supplement the record on appeal. The respondent has filed a
motion to strike some of Vineyard’s exhibits on grounds that they
are outside the record on appeal. In light of our remand for
further fact-finding by the district court, we DENY both motions
while noting that we did not consider the challenged exhibits in
reaching our decision.
JUDGMENT VACATED; CASE REMANDED; ALL MOTIONS DENIED