United States v. Wynn

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 16, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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.

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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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