United States v. Petty

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

FILED
June 6, 2008

No. 06-40616 Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee
v.

ALLEN PETTY, JR.

Defendant-Appellant

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

Before JONES, Chief Judge, and WIENER and CLEMENT, Circuit Judges.
PER CURIAM:
Appellant Allen Petty, Jr. (“Petty”) appeals the district court’s denial of his
motion for collateral relief under 28 U.S.C. § 2255 as untimely, arguing the court
should have equitably tolled the limitations period. Because the district court
did not abuse its discretion, we affirm.
BACKGROUND
In October 2002, a jury convicted Petty of 98 counts of fraud and money
laundering arising from an elaborate “Ponzi” scheme he concocted involving
more than 2,000 victims. See United States v. Petty, 96 F. App’x 180, 181–82
(5th Cir. 2004) (per curiam) (unpublished). He was later sentenced to 292
months’ imprisonment. This court affirmed the sentence and conviction on April
 No. 06-40616

15, 2004. Id. at 182. The opinion was revised immaterially on May 3, 2004, but
retained the April 15 release date. Petty did not seek further review from this
court or a writ of certiorari from the United States Supreme Court. The mandate
issued May 7, 2004.
Petty filed his 28 U.S.C. § 2255 motion no sooner than August 4, 2005, the
date he signed and delivered it to prison officials.1 In the motion, Petty raised
claims of ineffective assistance of trial and appellate counsel. The Government
moved to dismiss the § 2255 motion as untimely. The Government noted that
Petty’s conviction was affirmed on April 15, 2004, and became final 90 days
later, on July 14, 2004, when Petty had not filed a petition for a writ of certiorari
with the United States Supreme Court. The Government asserted, therefore,
that the one-year limitation period for Petty’s § 2255 motion expired on July 14,
2005, and thus Petty’s August 4, 2005 motion was time-barred.
Petty filed a response arguing that his direct appeal was not final until
May 7, 2004, based on (1) the revised opinion this court released May 3; (2) the
issuance of the mandate on May 7; and (3) information provided by an assistant
clerk of the district court that May 7 was the date on which his “direct appeal
was affirmed.” Alternatively, he contended that he was entitled to equitable
tolling because he relied on the assistant clerk’s statement as well as an
assertion by his appellate counsel that the conviction was affirmed in May.2
Petty testified by affidavit that the assistant clerk told his assistant, Judy
Hamilton (“Hamilton”), that the “direct appeal was affirmed on May 7, 2004.”
Hamilton’s affidavit stated the same.

1
See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (stating that a pro se prisoner’s
petition is deemed filed when tendered to prison officials for mailing).
2
Petty’s affidavit is the only evidence in the record that his appellate counsel told him
his conviction was affirmed in May 2004.

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In his surreply to the Government’s reply brief, Petty attached an affidavit
from Faye Thompson (“Thompson”), an assistant clerk of the district court, who
stated that Hamilton telephoned her sometime in May 2005 and asked for “the
date that the denial of Mr. Allen Petty’s appeal became final.” Thompson stated
she “looked on the computer and determined that the date was May 7, 2004,”
and that she informed Hamilton of that date. Thompson’s affidavit was executed
in January 2006, in response to the Government’s doubts regarding with whom
Hamilton talked at the clerk’s office and “what was said.”
The magistrate judge recommended that Petty’s § 2255 motion be denied
as untimely. The magistrate judge noted that the conviction was affirmed on
April 15, 2004, not on May 3, 2004, after immaterial revision. The magistrate
judge also noted that even if the time for seeking a writ of certiorari began on
May 3, 2004, the § 2255 motion would still be untimely.
The magistrate judge rejected Petty’s equitable tolling argument. The
magistrate judge found that Petty had received accurate information from this
court and from his lawyer that his conviction had been affirmed on April 15,
2004.3 Further, the phone statement from the clerk’s office was merely a
reference to the issuance of the mandate, which Petty knew or should have
known had no effect on the timing of his appeals or postconviction relief. The
magistrate judge concluded that Petty’s reliance on the theory that the 90-day
period for filing a petition for writ of certiorari commenced on May 7, 2004, could
not be justified.
The district court reviewed Petty’s objections de novo, adopted the
magistrate judge’s recommendation, denied the § 2255 motion, and denied a
certificate of appealability (“COA”). This court granted a COA on the issue
“whether the district court abused its discretion by rejecting Petty’s argument

3
Although Thompson’s affidavit was available to the magistrate judge at the time of
the report and recommendation, the magistrate referred only to Hamilton’s affidavit.

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for equitable tolling where he allegedly relied on misinformation from an
assistant clerk of the district court despite evidently having received correct
information from this court and his appellate lawyer.”4 United States v. Petty,
No. 06-40616 (5th Cir. July 20, 2007).
DISCUSSION
“The doctrine of equitable tolling preserves a plaintiff’s claims when strict
application of the statute of limitations would be inequitable.” United States v.
Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (per curiam) (internal quotations
omitted). This court has concluded that the one-year limitations period of the
Anti-Terrorism and Effective Death Penalty Act (“AEDPA”), as codified in
28 U.S.C. § 2255, is not jurisdictional and, therefore, is subject to equitable
tolling.5 United States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002). Thus, a
district court has the discretion to toll the AEDPA limitations period, and we
review for an abuse of that discretion. Id. at 229-30.
The decision whether to equitably toll the limitations period turns on the
facts and circumstances of each case. Felder v. Johnson, 204 F.3d 168, 171 (5th
Cir. 2000); see also Alexander v. Cockrell, 294 F.3d 626, 628 (5th Cir. 2002) (per
curiam) (stating that factual findings regarding equitable tolling are reviewed
for clear error). But equitable tolling is permitted only “in rare and exceptional

4
On appeal, Petty does not contend that his § 2255 motion was timely in the absence
of equitable tolling. Thus equitable tolling, the issue certified for appeal, is the only issue
before the court.
5
The Supreme Court’s recent holding in Bowles v. Russell, 127 S. Ct. 2360 (2007), is not
applicable here. In Bowles, the Court held that courts were prohibited from creating equitable
exceptions to statutory jurisdictional requirements, such as the time for filing a notice of
appeal. Id. at 2366. As noted above, this circuit does not view the AEDPA limitations period
as a jurisdictional bar, but rather as a statute of limitations that functions as an affirmative
defense. See FED. R. CIV. P. 8(c); Day v. McDonough, 547 U.S. 198, 205, 126 S. Ct. 1675, 1681
(2006) (describing AEDPA limitations period as a “defense” and nonjurisdictional). We read
nothing in Bowles that would overturn our prior decisions. See Diaz v. Kelly, 515 F.3d 149, 153
(2d Cir. 2008) (concluding Bowles does not apply to AEDPA limitations period).

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circumstances.” Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998); see also
Minter v. Beck, 230 F.3d 663, 666–67 (4th Cir. 2000) (“[E]quitable tolling of the
AEDPA’s one year limitation period is reserved for those rare instances where
— due to circumstances external to the party’s own conduct — it would be
unconscionable to enforce the limitation period against the party and gross
injustice would result.”) (quotation omitted).
Petty bears the burden of establishing equitable tolling is appropriate. See
Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir.), modified on reh’g, 223 F.3d 797
(2000) (per curiam). In order to satisfy his burden, Petty must show “(1) that he
has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way” of timely filing his § 2255 motion. Lawrence v.
Florida, 127 S. Ct. 1079, 1085 (2007).
In arguing that the district court abused its discretion by not equitably
tolling the limitations period for his § 2255 motion, Petty contends that his
counsel never told him about filing deadlines, and that he was justified in
relying on Thompson’s assertion that his appeal became final on May 7, 2004.
The Government contends that allegedly incorrect or misunderstood information
from an assistant clerk was not a rare and exceptional circumstance justifying
equitable tolling, especially when Petty had already been given correct
information.
It could be argued, based on Thompson’s affidavit, that the magistrate
judge erred in finding that the district court clerk’s statement to Hamilton
concerned the issuance of the mandate. But the district court concluded that
Petty was not justified in relying on allegedly misleading information, however
obtained, because he had ample notification of the actual date that his conviction
was affirmed and when the limitations period began. We agree.
The issuance of the mandate does not determine when a conviction is final
for purposes of the AEDPA statute of limitations. See United States v. Gamble,

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208 F.3d 536, 536 (5th Cir. 2000) (per curiam). And under Supreme Court Rule
13(3), the 90-day period for seeking a writ of certiorari runs from the date of
entry of judgment, not the date the mandate issues. The binding law indicates
that Petty should have known that April 15, 2004, the date the original opinion
issued from this court, was the relevant date for limitations purposes, not the
date the mandate issued. In Lawrence, the Supreme Court concluded that
confusion as to the filing deadline and counsel error in calculating the
limitations period fell “far short of showing extraordinary circumstances
necessary to support equitable tolling.”6 127 S. Ct. at 1086 (internal quotations
omitted).
Petty contends his status as a pro se litigant relieves him of possessing
detailed knowledge of the procedural nuances of § 2255 motions.7 Proceeding pro
se is alone insufficient to equitably toll the AEDPA statute of limitations.
Lookingbill v. Cockrell, 293 F.3d 256, 264 n.14 (5th Cir. 2002). Further, the lack
of legal training, ignorance of the law, and unfamiliarity with the legal process
are insufficient reasons to equitably toll the AEDPA statute of limitations.
Felder, 204 F.3d at 171–72; see also Turner v. Johnson, 177 F.3d 390, 392 (5th
Cir. 1999). Petty was required to follow the applicable procedural rules
governing AEDPA motions.
Likewise, ineffective assistance of counsel is irrelevant to the tolling
decision because a prisoner has no right to counsel during post-conviction

6
Lawrence declined to address whether equitable tolling was available under 28 U.S.C.
§ 2244(d). 127 S. Ct. at 1087. Because the parties in that case agreed that it was available,
the Court proceeded to discuss whether defendant’s claims met the standards for equitable
tolling. Id. Because equitable tolling is a discretionary and equitable doctrine, and this court
has concluded it is available to those who, like Petty, make motions under 28 U.S.C. § 2255,
Lawrence’s equitable tolling analysis is instructive.
7
Despite Petty’s plea of ignorance and his claim he is “unlettered at law,” the record
indicates he was sophisticated enough to run an elaborate “Ponzi” scheme that involved luring
investments into a fraudulent company. He also attempted to relocate to Canada to avoid
detection by law enforcement.

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proceedings. United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002). Mere
attorney error or neglect is not an extraordinary circumstance such that
equitable tolling is justified. Id. Although Petty contends his appellate counsel
instructed him that May 7, 2004, was the date his conviction became final, the
record demonstrates, as discussed below, that he was told otherwise on at least
two other occasions, including once by this court. These alleged discrepancies
should have alerted Petty to determine the actual date when the conviction
became final. His failure to do so is not an “extraordinary circumstance”
requiring equitable tolling of the AEDPA limitations period.
Furthermore, Petty’s reliance on Thompson may be deemed unreasonable
in light of the other information he received. Petty’s allegations of ignorance are
contradicted by the district court’s factual finding that this court and his lawyer
advised him that his conviction was affirmed on April 15, 2004, that the time
had begun for seeking certiorari, and that the mandate was irrelevant to any
limitation period.
Petty received the following communication from this court on April 15,
2004:
Enclosed is a copy of the court’s decision. The court has entered
judgment under Fed. R. App. P. 36. (However, the opinion may yet
contain typographical or printing errors which are subject to
correction.)
...

Pro Se Cases. If you were unsuccessful in the district court
and/or on appeal, and are considering filing a petition for certiorari
in the United States Supreme Court, you do not need to file a
motion for stay of mandate under Fed. R. App. P. 41. The issuance
of the mandate does not affect the time, or your right, to file with
the Supreme Court.

Likewise, Petty’s trial counsel stated the following by affidavit in his
motion to withdraw:

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. . . I explained that he has the right to appeal to the United States
Supreme Court. . . . He may do so by filing a petition for writ of
certiorari to the U.S. Supreme Court within 90 calendar days of the
date of this Court's April 15 written order denying his appeal. . . .
...
. . . I explained the consequences of the Anti-Terrorism and Effective
Death Penalty Act of 1996, which places a time limitation on his
ability to file a federal application for writ of habeas corpus. Such an
application must be filed no later than one year from the date his
direct appeal is exhausted, which would be the date that the Fifth
Circuit denied his appeal, or in the event that he appealed to the
U.S. Supreme Court, the date that the Court denies his petition for
writ of certiorari.

Although Petty contends he was never informed by counsel of AEDPA’s
requirements, nor did he receive counsel’s motion to withdraw, the discrepancy
between the letter he received from this court and the ambiguous, secondhand
advice he received from an assistant clerk in the Eastern District of Texas that
our decision became “final” on May 7, 2004, should have prompted Petty to
investigate further what date specifically governed the limitations period for any
potential § 2255 motion. His failure to do so demonstrates the lack of proper
diligence in asserting his rights necessary to meet the burden of showing
equitable tolling was appropriate. See Lawrence, 127 S. Ct. at 1085. And even
if we were to accept his affidavit testimony that appellate counsel later
instructed him that May 7, 2004, was the date his appeal became “final,” mere
attorney error or neglect is not an extraordinary circumstance to justify
equitable tolling. Riggs, 314 F.3d at 799.
Petty primarily relies on this court’s decision in Patterson, in which this
court stated that the “exceptional circumstances” necessary to justify equitable
tolling exist when a party is misled by an affirmative, but incorrect,

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representation of a court on which he relies to his detriment.8 Patterson,
211 F.3d at 930-31 (quoting Coleman v. Johnson, 184 F.3d 398, 402 (5th Cir.
1999)). Although Petty claims to have relied upon Thompson’s statement as the
“incorrect representation” he received from a court, the court’s error in Patterson
was far more serious, and thus the two cases are distinguishable.
In Patterson, the district court allowed the pro se defendant to withdraw
his timely filed § 2255 motion “so that he could find an experience[d] writ-
writer.” Id. at 928 (alteration in original). The court granted the motion just
days before the original limitations period was set to expire. Almost a year later,
believing that the new deadline for filing his § 2255 motion was one year from
the dismissal of his old motion, Patterson moved for an extension. Otherwise,
he claimed, this new motion would be time-barred. Id. at 930. The district court
denied Patterson’s motion, and ruled that the statute of limitations on his claim
had just expired, that is, one year from the date of the withdrawal of the old
motion. Id.
Equitable tolling was warranted in Patterson’s case because the district
court induced Patterson into believing that he had another year in which to file
his new petition. Id. at 931–32. This court’s conclusion was supported by the
district court’s own ruling indicating the limitations period expired one year
after the withdrawal and dismissal of the old § 2255 motion. Id. at 931.
Patterson was the victim of “rare and extraordinary” circumstances.
The instant case is not so compelling. The degree to which Petty was
allegedly misled by the assistant clerk is hardly analogous to Patterson’s

8
We note that even though Petty, through Hamilton, may have been told by Thompson
that his appeal became “final” on May 7, 2004, that statement is not sufficiently clear for a
party to assume that May 7 was the relevant date to be marking for limitation-period purposes
under § 2255. In some sense, the appeal did become “final” on May 7, 2004, because that is
when the mandate issued. Thus, Thompson was not necessarily incorrect. See Patterson, 211
F.3d at 931 (stating equitable tolling may be justified when party is misled by an incorrect
representation of the court).

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attempt to comply with a misguided order of the court.9 Moreover, Petty had an
official document from this court informing him that judgment was entered on
April 15, 2004, and that “issuance of the mandate does not affect the time, or
your right, to file with the Supreme Court.” Petty’s reliance on Thompson’s
affidavit was plainly unreasonable. The district court did not abuse its
discretion by denying equitable tolling.
CONCLUSION
Petty’s conviction became final on July 14, 2004, 90 days after this court
affirmed it on April 15, 2004. The limitation period under 28 U.S.C. § 2255
expired on July 14, 2005. Because equitable tolling, was not appropriate in this
instance, Petty’s August 2005 § 2255 motion was time-barred.
The judgment of the district court is AFFIRMED.

9
Cf. Prieto v. Quarterman, 456 F.3d 511, 515 (5th Cir. 2006) (concluding equitable
tolling was justified in rare circumstance when district court granted defendant permission to
file petition after AEDPA limitations period, then dismissed petition as time-barred); Davis v.
Johnson, 158 F.3d 806, 812 (5th Cir. 1998) (same).

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