United States v. Wynn

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 16, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 02-11274

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STACEY WYNN,

Defendant-Appellant.

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Appeal from the United States District Court
for the Northern District of Texas
(4:96-CR-68-19-A)
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Before SMITH, WIENER and BENAVIDES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Stacey Wynn appeals the district court’s

dismissal of his untimely filed § 2255 motion after rejecting

Wynn’s request for equitable tolling. We affirm the ruling of the

district court.

After Wynn was convicted for committing a number of federal

crimes and was sentenced to prison, he sought to urge on direct

appeal that he had received ineffective assistance of counsel. We

affirmed his conviction and sentence, and noted that his claim of

ineffective assistance should be raised in a § 2255 motion.

*
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this opinion should not be published and is not precedent except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.
Thereafter, Wynn retained appellate counsel to prosecute his habeas

corpus claim. Wynn eventually filed such a claim, but did so after

the prescribed time for doing so had expired. The district court

refused to allow Wynn to continue on the theory that misleading

communications from his habeas counsel had caused the late filing.

On appeal, we remanded to the district court to hold an evidentiary

hearing on Wynn’s claims.

On remand, the district court found that Wynn had failed to

establish that he had been misled by habeas counsel through

misrepresentations to Wynn and to Wynn’s father. The court ruled

in the alternative that even if Wynn had relied on

misrepresentations by counsel, his reliance was unreasonable.

We have carefully reviewed the record in this case and the

appellate briefs of counsel, and have heard oral argument from able

counsel as well. In the end, we are satisfied that Wynn has failed

to demonstrate clear error in the district court’s ruling that any

reliance by Wynn on counsel’s alleged misrepresentation is

unreasonable. As the district court’s findings are plausible and

supported by the evidence, the court’s conclusions based on such

findings cannot be clear error. See Anderson v. City of Bessemer

City, N.C., 470 U.S. 564 (1985). Consequently, the district

court’s ruling that equitable tolling is not available to justify

Wynn’s untimely filing of his § 2255 petition is, in all respects,

AFFIRMED.

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