Triplett v. King

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 06-61070 October 9, 2007
Summary Calendar
Charles R. Fulbruge III
JOSEPH TRIPLETT Clerk
Petitioner-Appellant
v.
RONALD KING, Superintendent
Respondent-Appellee
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:05-CV-129
Before JOLLY, DAVIS, and DEMOSS, Circuit Judges.
PER CURIAM:*
Joseph Triplett, Mississippi prisoner # 90500, appeals the dismissal as
time-barred of his 28 U.S.C. § 2254 petition challenging his conviction for
possession with intent to distribute marijuana. The district court granted
Triplett a certificate of appealability on the issue whether the failure of Triplett’s
counsel to file a timely § 2254 petition gives rise to equitable tolling.
Because the district court held that equitable tolling was unavailable as
a matter of law and did not withhold equitable tolling simply as a matter of
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-61070
discretion, our review is de novo. Fisher v. Johnson, 174 F.3d 710, 713 n.9 (5th
Cir. 1999). In United States v. Wynn, 292 F.3d 226, 230 (5th Cir. 2002), we held
that equitable tolling “could” be appropriate where a prisoner was deceived by
counsel into believing that a timely 28 U.S.C. § 2255 motion had been filed on
his behalf. In Wynn, the movant alleged that counsel informed him prior to the
date on which the limitations period expired that a § 2255 motion had been filed.
292 F.3d at 228.
Triplett’s limitations period expired on November 21, 2003. His counsel
did not agree until December 2003 to represent Triplett by filing a § 2254
petition on his behalf. Consequently, any subsequent misrepresentation
allegedly made by counsel to Triplett or his family regarding whether counsel
filed the § 2254 petition did not cause or contribute to the petition’s
untimeliness. As such, Triplett’s case is distinguishable from Wynn, and the
facts do not support application of the equitable tolling doctrine on the basis of
counsel’s misrepresentations that were allegedly made after the limitations
period expired.
Before he formally agreed to the representation, Triplett’s counsel was
paid a non-refundable retainer fee by Triplett’s family on July 18, 2003. After
receiving the retainer fee, Triplett’s counsel agreed to review the documents in
the case. Triplett and his counsel agreed that the retainer fee would be applied
to future legal fees in the event that his counsel accepted the representation.
Between the time that he accepted the retainer fee in July 2003 and the time the
limitations period expired in November 2003, Triplett’s counsel did not make
any intentionally deceitful misrepresentations regarding whether he filed the §
2254 petition. See United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002) (“An
attorney’s intentional deceit could warrant equitable tolling, but only if the
petitioner shows that he reasonably relied on his attorney’s deceptive
misrepresentation.”) (citing Wynn, 292 F.3d at 230-31) (emphasis added).
Triplett’s counsel did not agree to accept the representation until December
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No. 06-61070
2003, which was after the limitations period expired. Even assuming that
Triplett’s counsel miscalculated the limitations period when he initially accepted
the retainer fee in July 2003 and later agreed to the representation in December
2003, “an attorney’s error or neglect does not warrant equitable tolling.” Riggs,
314 F.3d at 799.
Furthermore, as the district court noted, the equitable tolling doctrine
should be applied only if the petitioner “diligently pursues” habeas relief.
Melancon v. Kaylo, 259 F.3d 401, 408 (5th Cir. 2001). We find that Triplett did
not diligently pursue habeas relief because he did not file his § 2254 petition
until June 2, 2005, which was approximately 558 days after the limitations
period expired. The evidence indicates that Triplett waited an impermissible
amount of time to file his § 2254 petition after learning of his counsel’s failure
to do so.
Triplett additionally argues that the district court dismissed the case as
time-barred in bad faith and complains that counsel has failed to return his
documents and, therefore, he is unable to brief the merits of the issues raised in
his § 2254 petition. These issues are not considered because they were raised for
the first time on appeal. United States v. Scott, 672 F.2d 454, 455 (5th Cir.
1982); United States v. Kimler, 150 F.3d 429, 431 (5th Cir. 1998). Triplett
additionally argues for the first time in his reply brief that the district court
erred in failing to consider his actual-innocence argument. Issues raised for the
first time in a reply brief are also not considered. See United States v. Prince,
868 F.2d 1379, 1386 (5th Cir. 1989).
AFFIRMED.
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