United States v. Riggs

In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-30396
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
VERSUS
KEVIN RIGGS,
ALSO KNOWN AS KEVIN THOMAS,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________
December 30, 2002
Before SMITH, BARKSDALE, and
EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The government appeals the grant of Kevin
Riggs’s motion for collateral relief under 28
U.S.C. § 2255. Concluding that the district
court abused its discretion by equitably tolling
the statute of limitations for Riggs’s untimely
motion, we reverse and dismiss the § 2255
motion.
I.
A.
In 1991, the police suspected Riggs and
associates of drug trafficking and lured Riggs
and John Jackson from their motel room based
on the statements of Riggs’s associates that
these two men possessed several grams of
cocaine. Riggs got behind the wheel of their
car, and Jackson placed an object in the trunk.

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Riggs then slowly drove the car toward the
motel lobby, with Jackson walking alongside.
As the police approached the car, Riggs leaned
toward the passenger-side floor as if to place
something on or retrieve something from the
floor.
The police arrested both men. A search of
the car yielded seventy grams of cocaine from
the trunk, a pistol from the underneath the
passenger-side floor mat, and some pills
scattered throughout the car.
Riggs was charged with, and convicted by
a jury of, possession of cocaine with intent to
distribute in violation of 21 U.S.C. § 841 and
using and carrying a firearm during a drug
trafficking crime in violation of 18 U.S.C.
§ 924(c).1 The court sentenced him to 121
months’ imprisonment for the possession
count and 60 months for the § 924(c) count,
with the sentences to run consecutively. In
1994, we affirmed in an unpublished opinion.
B.
In 1996, Riggs retained George Higgins III
to file a motion for collateral relief under
§ 2255. Higgins never filed the motion; Riggs
and Higgins dispute why. According to Hig-
gins, he advised Riggs that they should
challenge the § 924(c) conviction based on the
intervening decision in Bailey v. United States,
516 U.S. 137 (1995).2 Higgins says that Riggs
wanted to challenge the possession conviction
as well and would not allow Higgins to file the
motion. According to Riggs, however, Hig-
gins told him that the limitations period did not
expire until Riggs began to serve the § 924(c)
sentence. Whatever the reason, it is
undisputed that Higgins never filed the
motion.3
Riggs eventually retained new counsel and
filed a § 2255 motion in December 2001,
nearly five years after the limitations period
expired. The Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), Pub.
L. No. 104-132, 110 Stat. 1214 (1996),
imposed a new, one-year statute of limitations
on § 2255 motions. Because his conviction
was final before the enactment of AEDPA,
Riggs had a one-year grace period to file his
§ 2255 motion. United States v. Flores, 135
1 Riggs also was charged with, and convicted by
a jury of, conspiracy to possess cocaine with intent
to distribute in violation 21 U.S.C. § 846, but the
court granted Riggs’s motion for acquittal on this
count.
2 In Bailey, the Court held that the “use” offense
of § 924(c) requires “active employment” of a
firearm, not “mere possession.” Bailey, 516 U.S.
(continued...)
2(...continued)
at 144. Arguably, this definition would not permit
a conviction of Riggs for “using” the pistol, though
he might still be convicted for “carrying” it. See
Muscarello v. United States, 524 U.S. 125, 126-27
(1998) (holding that the “carry” offense of § 924(c)
“applies to a person who knowingly possesses and
conveys firearms in a vehicle”); United States v.
Brown, 161 F.3d 256 (5th Cir. 1998) (en banc)
(applying harmless error analysis to a defective,
pre-Bailey jury instruction because a jury finding
of (impermissible-after-Bailey) passive “use”
necessarily included a finding of “carrying”).
Riggs’s indictment and jury instructions charged
him with both using and carrying the pistol.
3 Riggs also asserts that he wrote repeatedly to
Higgins, but Higgins denies receiving any letters
from Riggs. Riggs also filed a complaint against
Higgins with the state bar disciplinary office. The
complaint and Higgins’s response are in the record,
and we have followed the lead of the parties in
using them to describe Higgins’s conduct and the
dispute between Riggs and Higgins.

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3
F.3d 1000, 1006 (5th Cir. 1998). This period
expired on April 24, 1997.4 Riggs concedes
that his motion is untimely.
The district court nevertheless granted the
motion and vacated Riggs’s § 924(c)
conviction. The court found that Higgins
erred by advising Riggs “of the wrong time for
filing his § 2255 motion.” It concluded that
this “incorrect legal advice” amounted to
ineffective assistance of counsel and warranted
equitable tolling of the limitations period. The
court granted the motion on the merits,
apparently concluding that a reasonable jury
would not have convicted Riggs of the §
924(c) count if given a proper, post-Bailey
instruction.5
II.
The government argues that the district
court should not have equitably tolled the
statute of limitations because Riggs has
alleged, at worst, attorney error or neglect,
which is not grounds for equitable tolling.
Although we review a decision to invoke
equitable tolling for abuse of discretion, Fierro
v. Cockrell, 294 F.3d 674, 679 (5th Cir.
2002),6 a court by definition abuses its
discretion when it makes an error of law,
United States v. Delgado-Nunez, 295 F.3d
494, 496 (5th Cir. 2002). Concluding that the
district court made such an error, we reverse.
Equitable tolling is permitted only “in rare
and exceptional circumstances.” Davis v.
Johnson, 158 F.3d 806, 811 (5th Cir. 1998).
An attorney’s intentional deceit could warrant
equit able tolling, but only if the petitioner
shows that he reasonably relied on his
attorney’s deceptive misrepresentations.
United States v. Wynn, 292 F.3d 226, 230-31
(5th Cir. 2002). On the other hand, “counsel’s
erroneous interpretation of the statute of
limitations provision cannot, by itself, excuse
the failure to file [petitioner’s] habeas petition
in the district court within the one-year
limitations period.” Fierro, 294 F.3d at 683.
If there were ever any doubt that an attorney’s
error or neglect does not warrant equitable
tolling, o ur recent decision in Cousin v.
Lensing, 2002 U.S. App. LEXIS 23381 (5th
Cir. Nov. 12, 2002), erased it: “[M]ere
attorney error or neglect is not an
4 Although the Supreme Court did not apply
Bailey retroactively until Bousley v. United States,
523 U.S. 614 (1998), we have held that Bailey was
retroactive on its own terms before Bousley.
United States v. Lopez, 248 F.3d 427, 432 (5th
Cir.), cert. denied, 122 S. Ct. 222 (2001). Thus,
Riggs has no claim to tolling based on a newly
recognized right.
5 The district court seemed concerned that the
evidence suggested an equally plausible and inno-
cent inference, namely, that Riggs reached toward
the passenger-side floor to hide the pills, not to get
the pistol (and thereby reveal his knowledge of its
presence), and that Jackson was acquitted of the
§ 924(c) count. Although we do not reach the
merits of Riggs’s motion, we observe that a jury
concluded that the evidence proved that Riggs was
reaching for the pistol and that Jackson was walk-
ing outside the car when arrested. Furthermore, we
note that, even if Riggs’s jury instruction was
defective under Bailey, this error was susceptible
to harmless-error review.
6 Fierro involved a petition for a writ of habeas
corpus under 28 U.S.C. § 2254, not a motion of
collateral relief under § 2255, but AEDPA added
similar one-year statutes of limitations to both sec-
tions, which we interpret similarly for the purpose
of an equitable doctrine like equitable tolling.
Davis v. Johnson, 158 F.3d 806, 810 n.5 (5th Cir.
1998). We therefore do not distinguish between §
2255 cases and § 2254 cases in this opinion.

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extraordinary circumstance such that equitable
tolling is justified.” Id. at *12.
This holding was long implied in our case-
law and should not be surprising. As we noted
in Cousin, a prisoner has no right to counsel
during post-conviction proceedings. Id. at *11
(citing Coleman v. Thompson, 501 U.S. 722,
752 (1991)). This is why our equitable tolling
cases do not laboriously apply the familiar test
of Strickland v. Washington, 466 U.S. 668
(1984): Ineffective assistance of counsel is
irrelevant to the tolling decision. Likewise, a
petitioner’s own ignorance or mistake does not
warrant equitable tolling, and it would be
rather peculiar to treat a trained attorney’s
erro r more leniently than we treat a pro se
litigant’s error. Id. at *11-*12 (citing Cole-
man, 184 F.3d at 403).7
The record contains no evidence that
Higgins intentionally deceived Riggs about the
statute of limitations for § 2255. The evidence
is conflicting on why Higgins did not file the
motion in 1996. Riggs asserts that Higgins
misunderstood the statute of limitations,
whereas Higgins asserts that Riggs refused to
let him file the motion. Even if we accept
Riggs’s version,8 though, he merely asserts
that Higgins committed a very basic and
unprofessional error, not that Higgins
intentionally deceived him. Moreover, the
district court, speaking as it did of Higgins’s
being “ineffective in advising him” and offering
“incorrect legal advice, apparently believed
that Riggs had requested equitable tolling
based on mere attorney error.” Finally, Riggs
confirms, in his brief, the lack of evidence of
intentional deceit; he can muster only a very
tepid and conclusory assertion that Higgins’s
statements “were possibly a deception.”9
Riggs’s assertions, if proven, may warrant
professional discipline against Higgins, but
they do not warrant equitable tolling of the
statute of limitations under our precedents.
The district court abused its discretion by find-
ing otherwise. The order granting the § 2255
motion is REVERSED, and the § 2255 motion
is DISMISSED.
7 A district court’s error in unintentionally mis-
leading a petitioner about the statute of limitations
warrants equitable tolling, United States v. Pat-
terson, 211 F.3d 927, 931-32 (5th Cir. 2000), but
Riggs does not contend that the district court
misled him in any way.
8 We do have some reason to accept Riggs’s
version. In his response to Riggs’s complaint with
the state bar disciplinary office, Higgins stated that
he “believe[d] that the Bailey motion is still a
viable motion to be filed on behalf of [Riggs].”
9 Riggs also argues that he is actually innocent
of the § 924(c) count because the allegedly de-
fective jury instruction did not ensure that the jury
convicted him of every element of the crime. More
to the point, he argues that actual innocence
warrants equitable tolling. The court, however, did
not base equitable tolling on this argument.
Moreover, “a petitioner’s claims of actual inno-
cence are [not] relevant to the timeliness of his
petition.” Cousin, 2002 U.S. App. LEXIS 23381,
at *13 (citing Felder v. Johnson, 204 F.3d 168,
171 (5th Cir. 2000)).

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